Panopticon Pending

“You never let a serious crisis go to waste. And what I mean by that it’s an opportunity to do things you think you could not do before.” – Rahm Emanuel

This quote and the sentiment contained within it get thrown around a lot in the more cynical parts of the internet. And rightly so, because it is true. Every crisis is an opportunity to learn, to step up and take on more responsibility with all the rewards and responsibilities that go along with that. A crisis is also an opportunity to hide in the chaos, to avoid fault or blame, to make problems go away or be blamed on something else. A crisis is a powerful tool.

In an ideal world, governments would use crises to win hearts and minds by responding swiftly and effectively to the problem. The world is not ideal however, and governments are far more likely to use a crisis for political posturing and to consolidate their power. See: The Patriot Act, The Enabling Act of 1933, 

Now that the COVID-19 pandemic is really ramping up, and people are justifiably distracted by the threat it poses to our global infrastructure, economy, and lives, it’s the perfect time for our government to slip some piece of legislation through that further curtails our civil rights and liberties. The great thing here is that even if the specific piece of legislation fails, it costs the government very little, but if it passes it becomes very difficult to unwind the ratchet. Consider SOPA and PIPA, remember them? The anti-piracy bills that would have required ISPs to blacklist sites that hosted copyright protected content, regardless of who uploaded that content? Well they still exist, just “indefinitely shelved” waiting to be brought back under a new name, or perhaps wrapped up in some omnibus bill that can slide through during some future convenient crisis.

Now, I don’t believe every politician is evil, indeed many are true believers in their causes and work for the wellbeing of their constituents as well as they are able. However, I believe the same thing about law enforcement, and there is no question that there are some deep-seated structural and moral issues what with all the, you know, racism and murder they get up to. Furthermore, I am not calling for anarchy, I believe that some form of central oversight is necessary to provide the public goods that a free(ish) market will not provide on its own, i.e. a subscription based fire department isn’t something I want to see. But that central oversight does need to be carefully kept in check. 

Which brings us to the EARN IT Act of 2020. This act does 2 main things: Firstly, it establishes the National Commission on Online Child Sexual Exploitation Prevention, which would be a group of 19 members. Three of these 19 would be The Attorney General, The Secretary of Homeland Security, and The Chairman of the Federal Trade Commission. The remaining 16 would be appointed by the majority and minority leaders of both houses of congress (section 3). Nothing crazy so far. However, “On the day on which recommended best practices are submitted to Congress under subsection (b), a covered bill containing those best practices shall be introduced.” The bill includes a provision for fast tracking the recommendations of the committee into law…

Secondly, we get to the ‘Earning it’ part of the bill. The other main thing that the Earn It Act does is to amend 47 U.S. Code § 230. This law says that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” What this means is your content platform of choice is not responsible for what you upload to it. There are exceptions, notably: intellectual property laws, state laws, and laws concerning the sexual exploitation of children. But generally, content hosting platforms currently enjoy a high level of legal protection from the actions of people who upload to them.

The Earn It act would take away the Section 230 protections from 18 U.S. Code § 2252 and 2252A that content platforms now enjoy. Now, there is a way for online platforms to regain the § 230 protections:

“(B) SAFE HARBOR.—Subparagraph (A) shall not apply to a claim… brought against a provider of an interactive computer service if—

(i)                  the provider has implemented, and is in compliance with, the child sexual exploitation prevention best practices contained in a law enacted under the expedited procedures under section…”

What this is saying is, if the recommendations that the 19-person committee lays out and are passed into law, then failing to follow them will result in them being treated as the publisher of any material in violation of § 2252 and 2252A.

Those sections deal with crimes involving child sexual abuse material. Now if you think, “Well they shouldn’t be protected from those things any way”, I can understand that, but let’s consider the implications. The Earn It Act passing would leave platforms vulnerable to trolls, rival businesses, and foreign bad actors who could post horrific content to these platforms, leaving them as liable as if they had published it themselves. In addition to further stifling free speech, this would make it far more difficult for new competitors to break into the content hosting market by creating a further barrier to entry in a market that has already proven to be extremely difficult to enter. How long until we see a real rival to youtube, for example?

Furthermore, considering Attorney General William Barr will be on the committee, it is likely that the guidelines will ban or restrict the use of end to end encryption. Barr has been vocal about wanting to remove encryption from the internet, “Predators often use anonymous or false personas, even in the most innocuous of settings, like online children’s games.  They also communicate using virtually unbreakable encryption.” source.  Or this letter to The Zuck: “We are writing to request that Facebook does not proceed with its plan to implement end-to-end encryption across its messaging services without ensuring that there is no reduction to user safety and without including a means for lawful access to the content of communications to protect our citizens.”

The federal government of the United States has long bristled at the idea of average citizens being able to freely and anonymously communicate with anyone in the world. Perhaps it remembers the circumstances that led to its birth. Or perhaps it is overly romantic to assign that level of agency to a vast bureaucracy, and it’s just a side effect of self-perpetuating systems that the most successful tend to be the most paranoid. Regardless, Barr is continuing a proud tradition of encroachments on the 4th Amendment. Everything from the broad Powers Without Warrant that gives “Any officer or employee of the Service authorized… by the Attorney General” the power to conduct warrantless searches within a “reasonable distance” of the border. To continuing to demand that Apple build them the tools to unlock iOS devices (Barr again), to NSA programs like PRISM. The judicial branch seems dead set on stamping out the idea of privacy online.

Attorney General William Barr wants to end encryption on the internet, or at least ensure that there is always a backdoor for law enforcement. And the Earn It Act gives him a real chance at making that happen. You don’t have to be a cyber security expert to know that’s a bad idea. Both from a basic information security, and from a right to privacy point of view.

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  1. Really interesting article, LT. Wondering if there are implications for especially vulnerable sites, say, ThePirateBay? Will this act consequently make it even easier for further measures to be introduced with less and less resistance? Thanks for the thought-provoking read.

    • Not a lawyer, however, considering the definitions found in 47 U.S.C. § 230(f)(1-4) include:

      “(2)Interactive computer service
      The term “interactive computer service” means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server…”

      “(4)Access software provider
      The term “access software provider” means a provider of software (including client or server software), or enabling tools that do any one or more of the following:
      (A)filter, screen, allow, or disallow content;
      (B)pick, choose, analyze, or digest content; or
      (C)transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.”

      And considering that one of the main reasons TPB and other search engines exist is to filter, screen, pick, and choose content, my reading of the the law says it applies. Not sure if there is any precedent, but I would have a hard time imagining a judge disagreeing with my interpretation.

  2. Great article, Lord Tuesday.

    As always, Neon Dystopia is not afraid to tackle the tough topics. Thanks for keeping the politics (and the punk) in cyberpunk.

  3. Great piece, and very timely.

    There are too many people throwing around the “never let a crisis go to waste” quote, who are using it to argue against sustainability, or suchlike, whilst ignoring the implications on surveillance tech, censorship and so-on.

    Good to know that not everyone has ignored that side of it.

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