Signal, the popular and trusted encrypted messaging app, might not be available in the U.S. should a certain bill make it through Congress.
The EARN IT Act, introduced into the Senate last month by South Carolina Republican Sen. Lindsey Graham, aims to revise the “framework governing the prevention of online sexual exploitation of children,” and on the surface, that seems like a good thing. Lurking beneath, however, is a new authority that would allow the U.S. government to force companies to abandon their use of end-to-end encryption. Were that to happen, apps like Signal would likely cease to exist—at least in the U.S. market.
As Signal developer Joshua Lund explained in a new blog post, Section 230 of the Communications Decency Act “protects online platforms in the United States from legal liability for the behavior of their users.” This means that companies like Facebook and Twitter cannot be held responsible if someone uses its platform for illegal activities, which includes child exploitation. The EARN IT Act would require companies to follow vague government-designated “best practices” to prevent the online sexual exploitation of children. These companies would need to align their user policies with the new law and receive a “certification” that continues to grant them the same legal protection under Section 230. If any company isn’t certified, it loses “liability protections from claims alleging violations of child sexual exploitation laws,” according to the proposal.
First, while tech companies like Facebook could shoulder the financial burden that would come with the massive amount of hideous things people post on its platform every day, a small nonprofit like Signal would not.
Second, these “best practices” could disallow end-to-end encryption on any digital communications platform the government sees fit, according to critics of the legislation. End-to-end encryption like that found in Signal keeps the contents of communications secret from anyone besides the sender or the recipient. In addition to protecting private chats, end-to-end encryption can also protect sensitive information. Were it to be effectively banned, data breaches would likely become an even bigger problem than they already are.
Regardless, government officials like U.S. Attorney General William Barr claim that end-to-end encryption prevents law enforcement from easily tracking criminals who exploit children—an argument law enforcement officials have long used in an attempt to gain greater access to people’s private communications.
“Bad people will always be motivated to go the extra mile to do bad things. If easy-to-use software like Signal somehow became inaccessible, the security of millions of Americans (including elected officials and members of the armed forces) would be negatively affected,” wrote Signal’s Lund. “Meanwhile, criminals would just continue to use widely available (but less convenient) software to jump through hoops and keep having encrypted conversations.”
Organizations like the Electronic Frontier Foundation (EFF) contend that there is already a large swath of existing laws that target child sexual abuse material and child sex trafficking ads, so there’s no need for the EARN IT Act. Worse, the legislation would compromise several constitutional rights, including violating free speech protections by interfering with companies’ “First Amendment right to make editorial choices regarding their hosting of user-generated content.” It would also violate Fourth Amendment protections against unreasonable search and seizure, according to EFF, by turning online platforms into “government actors that search users’ accounts without a warrant based on probable cause.”