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And thanks, everybody, for having us here to talk about some of our favorite subjects, online speech and privacy.

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I'm Cathy Gellis, half of this duo, and I'm going to be going first because if we're going to be talking about potential changes to Section 230, which is what the EARN IT Act does in part, we should have a good idea about what Section 230 is, how it works,

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and really understand it before we break it and find out that maybe that was a mistake.

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It will be a mistake.

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Stay tuned.

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We will explain why.

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By way of introduction, I am a solo cyber lawyer in the San Francisco Bay Area.

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I like to work on online speech issues, including Section 230 issues.

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I am a lawyer.

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Rihanna's a lawyer.

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We are not your lawyers.

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If we were your lawyers, we would have all signed letters saying so, and there's been no letters.

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So just to make that clear.

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But we do know what we're talking about.

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So this presentation has two parts.

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The reason I'm going first, doing the crash course, and then I will be joined by Rihanna to talk more.

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Hi, everyone.

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We are back again with more technical difficulties.

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But have no fear, I've got everyone back.

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I don't know if anyone's ever done OBS over a virtual desktop.

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Apparently, tip for the other folks learning from this stream, if you are logged into a Zoom in a virtual machine using OBS, and somebody else logs into that virtual machine, Zoom disconnects the user that is connected to Zoom on that virtual machine.

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So we're back.

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We've learned this new thing about technology.

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I will give it back over to Kathy, who's going to talk about the overarching principles.

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Okay, thanks, Whitney.

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I'm not quite sure where we got cut off.

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But Rihanna and I, both lawyers, not your lawyers, but it does mean we know what we're talking about.

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The first bit that we're going to do is crash course in Section 230.

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Because speaking of learning curves, stuff breaks, but it'd be really stupid to break it on purpose, because we didn't understand this really great and important law before we start changing it with proposals like the earn it and various other things that are floating through the halls of our government.

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So getting into it, as we go into this lesson, this crash course, couple of things to keep in mind, overarching principles.

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The first thing, Section 230 is a really hot topic these days.

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Everybody's talking about it.

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Everybody's complaining about it.

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Bear in mind that much of what people are complaining about, because people are saying bad stuff, saying and doing bad stuff on the internet, is really a byproduct of we've got a First Amendment.

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Freedom of speech tends to protect an awful lot of stuff that we are upset about.

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And if we were going to try to change the law to change it, that means we'd have to get rid of the First Amendment, and that's probably not a really good idea.

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So it also means that basically, if we're unhappy about something, the correct policy choice is not to change Section 230, because it's not actually Section 230's fault.

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A second overarching point that we need to bear in mind is that litigation can be cripplingly expensive, even when the position that you've got as a defendant is the better one.

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The fact you might win the lawsuit doesn't necessarily help.

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Lawsuits are expensive and potentially bankrupting, and what Section 230 is designed to do is to make sure that platforms can stay in business without feeling like they're going to be financially obliterated because one of their users says or does something stupid,

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and somebody tries to hold them responsible to it.

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Because if you think about the tremendous volume of what even the smallest platforms end up facilitating in terms of user-generated content, that's enormous.

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Even if they just had to, like, call up a lawyer to find out, do we need to really respond to this?

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That gets expensive.

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That meter ticks.

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It's not realistic.

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And what Section 230 is designed to do is make sure that a platform cannot be bled dry financially by getting called into court by legal threats, real or even actual ones as well.

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Put another way, the overall goal of Section 230, and we're going to get back to this a lot, is to ensure that we get the most good stuff online and the least bad.

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There are a lot of really cool things that people say or do over the internet.

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We want to make sure that the internet remains as available as possible to get the most of that.

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If platforms had to fear liability, they would not be in the position to facilitate all that good stuff.

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It would end up much more limited or maybe not be possible at all.

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At the same time, there's a lot of crap on the internet, and we would like to minimize the crap.

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So the other point of Section 230 is to put platforms in a position where they can minimize the crap without worrying about getting into trouble if they actually do the best they can on that front.

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So in order to optimize the most good and least bad, we have Section 230.

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It doesn't mean that we'll ever hit optimum on either front, but it gets us as close as we can reasonably get.

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And that gets to the fourth point.

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Effective regulation doesn't need to be punitive.

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Carrots can work best with sticks.

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And what Section 230 is best understood as is all carrot, no stick.

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That basically, we want the platforms to be there to get us the most good stuff and the least bad stuff, and we're going to make it... we're going to incentivize them to do the best they can on both fronts.

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And the reason they're going to be able to do the best they can is because they're not scared.

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They're not scared of being punished financially through liability, etc.

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That's the magic of Section 230, to make it possible that the platforms and policy can all be aligned to do the best that we can.

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That's why we have the Internet today.

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So let's take a look at our next slide and talk about how we got Section 230.

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So if we get in our time machine and go back to 1995, a couple of things were happening.

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The first thing that was happening was that the Internet, which had been existing for quite some time, but was starting to enter the public consciousness.

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And as it hit the public consciousness, Congress became aware of it and started to become concerned that, oh my gosh, the Internet, there's porn on the Internet.

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Oh no, this is terrible.

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Some of it, probably not so great, but some of it is maybe a little overreaction.

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But in any case, they were very concerned about the amount of porn on the Internet and didn't want any of it there.

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Meanwhile, there was also this lawsuit that came up in a state court of New York involving the system Prodigy.

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So Prodigy, at the time, there were a number of dial-up, bulletin board-type services.

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Some were somewhat large and commercial.

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Prodigy, CompuServe, eventually AOL.

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They were small in the sense of not as big as today's platforms, but they were relatively big.

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Prodigy had been around for 10 years, at least, at that point.

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And they handled an awful lot of user-generated content.

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And a user had arguably defamed the plaintiff in this lawsuit.

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But the plaintiff decided to Prodigy, basically under the theory of how dare you produce a system that allowed a user to defame me.

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And they filed this lawsuit.

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And a judge in a state court in New York said, well, that sounds good.

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Go ahead with your lawsuit.

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Sure, Prodigy should be in trouble for allowing this to happen.

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And a couple of members of Congress looked at that case with alarm.

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Senator Wyden and then Congressman Chris Cox.

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And they said, this is not going to be good.

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The Internet is coming.

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We've got all these cool services.

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And they're going to not be able to be available to provide, to facilitate user-generated speech.

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Nor are they going to be in a position to take down the terrible stuff.

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So again, we have a crisis.

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If this law becomes a thing, we won't get the most good stuff.

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We won't be able to minimize the most bad stuff.

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This is a problem.

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So these two ideas came together and formed the Communications Decency Act of 1996.

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And then there was a lawsuit challenging most of it because the getting rid of porn parts happened to infringe on the First Amendment quite severely.

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And in a case called Reno v.

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ECLU, the U.S.

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Supreme Court said, nope, those parts go away.

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They made clear that the First Amendment applies to online speech just as much as it applies to offline speech.

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Those parts of the CDA went away, but Section 230 survived.

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And it survived, and it did its job clearing the way to make sure that people continue to innovate internet services.

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So we're now looking at statute.

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Don't worry.

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If you're not a lawyer, you will survive.

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This is okay.

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It's a good statute.

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It's pretty readable by normal human beings.

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But I will give you a scenic tour of some of the parts.

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So this particular page that we're on, they put in the beginning of the statute some preamble text, and it basically boils down to Congress finds that the internet is pretty awesome.

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They go through two pages worth of awesomeness, and then they get to their policy, and that the policy of the United States is to keep the internet awesome.

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So this sort of sets what Congress is trying to accomplish.

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And one of the things that it kind of articulates, most good stuff, but it also puts in some, we want to make sure that there's some leverage so we can get rid of the bad stuff.

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Here we go.

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That's what I just said.

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Okay.

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This is the most magnificent part of section 230.

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It is 26 words.

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Professor Jeff Koseff wrote a book called the 26 words that created the internet.

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And I've tried to read it out loud at conferences before, and it sounds terrible when pronounced, but it is fantastic.

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And if I'm to summarize it in more understandable language, it basically means whoever creates the problematic content is totally responsible for the problematic content, but not the service they used to express it.

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And if we look at the bits that I highlighted, the bit at the bottom, the information content provider, that's who created the content.

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And that other bit, the interactive computer service, that's the platform.

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Internet platforms, interactive computer services, it can be a lot of different things, but it's basically the platform that facilitated a third party's expression.

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Here we go.

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Okay.

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This is the part of the statute that looks at those definitions and basically says what I just told you.

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The information content provider is the person who created it, and the interactive computer service is the part that facilitated it.

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And that first part basically said the facilitator's not liable, but the people who created it are.

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And so there's some question about what sort of, you know, who gets to be counted as an interactive computer service.

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And, you know, we think a lot about social media.

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That's the easiest thing to kind of get our heads around.

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But an email provider, they're facilitating other people's expression, a bulletin board service like Prodigy, comment sections on blogs and online newspapers, these are things that, you know, whoever posted the article is responsible for the content of the article,

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but the things that the community provides to comment on the article, that's a textbook case of Section 230.

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And then there's also a lot of courts that have looked at this and said, you know, it also could apply to you, individuals.

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If you have a Facebook post that takes comments on it, and somebody posts a comment, you're not responsible for the comment if something is wrong with it.

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That's an important thing.

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I think when people talk about Section 230, they tend to think of it in terms of, well, Google, Twitter, Facebook, and however you feel about these companies tends to color your view.

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But understand that it's not about them.

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A, yes, true, it was a law that allowed these innovative companies to come and exist.

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But it's also what allows any company to come and exist.

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And it also is enabling an awful lot of online behavior that ordinary people actually do themselves.

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There is a companion piece to Section 230.

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It's not something that has actually, like, carried as much weight as the Section C1 part.

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But that whole bit of, we want the companies to, we want the platforms to be able to do two things, keep the most good stuff and the least bad stuff.

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And so what we've done with that carrot approach is said, okay, here's the carrot.

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You're not liable if something wrong gets posted on your systems.

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And that's a carrot because it basically means that the companies can say, I'm fine.

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I don't have to worry if I'm not able to keep something bad off the internet.

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And that means that they're safe to sort of be as expansive as possible to allow the most good stuff.

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If they had to fear the punishment , then they would scrutinize a lot of content and take down a lot of content that probably would have been just fine and completely lawful.

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So carrot-based approach to make the platforms feel safe to leaving content up.

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But we also wanted to make them feel safe to take content down because that's the other part, least bad stuff.

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If companies had to fear that they could be punished or held liable for taking content down, they wouldn't bother at all.

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It would just be too risky.

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But we want them to be partners in helping maintain internet hygiene.

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So we've also given them a carrot in this department to say, go ahead.

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So here we are next.

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The other part of the statute is there's section E where they threw in a couple of other things that end up being really important.

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This particular clause is not really important.

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They sort of thought back then that there would be a collision with another law that was on books, ECPA.

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And so they basically wrote this text to say, no collision, no issue, go away, let's move on.

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And so indeed, let's move on.

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This is an important clause because if we stop and think about the internet, this is inherently interstate.

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It's very difficult to put something on the internet that stays in any one locality.

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If you put something on the internet, it's available everywhere, everywhere throughout the country, even throughout the world.

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And so we kind of ruin this whole policy if we let each individual state pass a law that will somehow impact it.

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So if the companies are feeling safe in Iowa to like, well, we're not going to be liable here, it really doesn't help them if Illinois passes a law that says, no, no, if it happens in Illinois, you're in trouble.

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So this is essentially a preemption statute.

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And so Congress put this in to say, look, it's federal government, we got it, states sit this one out.

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And that's important because internet policy is complex enough.

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It really would be overwhelming if all 50 states plus territories and local jurisdictions could have their say.

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Okay, but they did put an exception.

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So Section 230 applies for almost everything that could be legally wrong with user content with a, but there's a few exceptions.

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And one of the big ones that they baked in originally was the thing wrong with the content is that it potentially infringed on an intellectual property right.

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Easiest one to get our head around is it might have infringed a copyright.

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Then Section 230 doesn't apply.

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No protection for the platform.

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They might, they're going to be on the hook for the liability in the user.

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Now it turns out that shortly thereafter, Congress passed another law, the Digital Millennium Copyright Act, which does give platforms some protection.

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But the reason I've put up this slide is this is a tiny piece of a tiny section of just one of pieces of the Digital Millennium Copyright, Section 512 alone, and this isn't particularly readable.

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It's not even particularly understandable.

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And companies go bankrupt trying to litigate.

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There is a terrible situation like if you think that it's a problem that YouTube is so big, you should know that there used to be a competitor to YouTube that got sued for copyright infringement allegedly in their users content.

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And they went bankrupt in the process of litigating it to the point where the Ninth Circuit Court of Appeals actually said there's no infringement.

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They're not liable for this.

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They should have been just fine.

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At that point, the company was gone and we lost a competitor, which now we're missing because it actually might be nice to have more competition online.

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So when we think about messing with these liabilities or making these liabilities complicated or conditional, this is what happens.

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We tend to obliterate them, and that's not what we want to have happen.

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There was also an exception from the very beginning that said there is no effect on federal criminal law.

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So that means that if the thing that was wrong with the content is that it violates a federal criminal law, also section 230 wouldn't apply.

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And for a while that was fine.

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I basically sort of said like child porn.

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That's bad.

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That tends to violate federal criminal law.

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And so we would impose on the platforms that they needed to do something about it.

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But that was one ask of a platform.

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And it's difficult and it's got some issues tied up in how do you do that effectively, but basically it was a single ask, our most important ask of what we could ask for a platform, and at least they could focus their resources on that and not have to be dragged into any other things that they might have to look for.

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But then things changed recently.

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A couple years ago, Congress put forth the first significant change to section 230 since it was passed.

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You might have heard it called SESTA, but by the time it got passed, it was referred to as FOSTA.

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And FOSTA basically said, you know, there's another type of bad content.

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We don't want sex trafficking either.

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And that's true.

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That's bad.

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But they poked a big hole in section 230.

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And one of the things to note, just looking at the slide, is they poked a very complicated hole in section 230.

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That's hard to read and understand.

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And you can see those hyperlinks are pointing you to other areas of the U.S.

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Code where they've put another criteria.

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It's made platforms really unsure about what sort of content is okay for them to facilitate and what sort of content is not.

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And as a result, they've started taking down or making themselves unavailable for content that would be totally lawful.

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A very famous example is Craigslist took down entire sections of classified ads, like dating ads.

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Dating ads are... they've been around for ages.

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Couples have met that way.

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There's nothing inherently wrong about an ad looking for dates and matchmaking.

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But because this is sort of adult content that can, you know, tip into the period, Craigslist quite reasonably got scared because they didn't really know, I think we might be held responsible for it.

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And that's just too big a chance to take.

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The other thing that this law did is it made it somewhat unsafe, and actually more than somewhat, it made an unsafe for a platform to take stuff down.

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Because... and we'll talk about this as we talk about other attempts to reform Section 230.

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They tend to mess with the idea of, like, if you knew it was there, then you're on the hook for it.

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So if you didn't know it was there, you might be okay.

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But then why should a platform take the time and energy to look for what might be there?

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Because it's just tempting trouble for themselves.

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So all of a sudden, now the platform is not a partner in dealing with the internet hygiene.

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And that's not constructive.

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It's not going to help us get the most good stuff or the least bad stuff.

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So remember these thoughts, how cripplingly expensive it is to be sued, even if the lawsuit is without merit.

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Remember that we want the most good stuff and the least bad stuff.

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And that carrots are more effective than sticks to helping us get that.

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And when we think about what some of these other laws are, you know, tested against that notion, and I think you'll find that most of these proposals fail.

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So with that, we're about to bring up Rihanna to talk to her.

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And one of the things we'll tip on is there is one proposal floating out there, which is okay.

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The first one, the examination of secondary effects for sex workers study.

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One of the things is that FOSTA kind of got rammed through where people said, I think we have a problem.

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But instead of really understanding the dynamic of that problem, they went ahead and changed the law around it without really understanding if that was a good solution, an effective solution, or one that didn't actually make the problem worse.

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Because it turns out there's a lot of evidence that it's actually made the problem they were trying to fix worse, worse.

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Women, there's a body count attached to FOSTA, sad to say.

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And this is a proposal to basically let's figure out what the effects are before we do anything else to it.

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But the rest is not okay.

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We're hearing executive orders trying to challenge Section 230.

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The DOJ has put out a guidance document that doesn't really understand it at all.

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The PACT Act is the most plausible where it seems to at least understand the statute, but it still creates problems.

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It seems like every week Senator Hawley is producing a bill to change it.

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And then there is the ERNED Act, which is sort of the bane of our existence, because it does more than change Section 230.

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I'm going to bring up Rhiannon now.

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We're going to close the sides and hopefully things don't break.

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And did I succeed?

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Okay.

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So, do we have Rhiannon?

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Yay!

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Okay, we're back to a single person.

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Great.

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Well, I was going to suggest we've gotten a few questions coming in over the Discord.

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Thanks, everybody.

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Maybe we could try knocking out a few of these, Kathy, before we get to talking a bit more about ERNED.

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Okay, excellent.

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Let's see.

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I see that... I'm seeing questions about moderation by bot and whether that is somehow bad or not, or that 230 speaks to it.

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And basically, 230 has a deliberately very light touch.

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It can apply to a whole bunch of systems in a whole bunch of contexts, and it's not very specific, which makes it very flexible.

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It was written in the mid-90s, and the internet has obviously changed quite a bit ever since, and it's flexible.

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It doesn't directly speak to AI, but if we stop and think about what AI is, AI, in theory, is the computer outsourcing of the brain of the people in the company.

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They have made decisions about how they want things moderated, and they deploy their bots to do it.

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The fact that you have technology pressing the button instead of a human being pressing the button, it doesn't change it.

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The core thing about Section 230 is that the intermediary is not responsible for the wrongfulness of the content that somebody else created, and the bots don't change that.

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They're still connected to the editorial discretion of the platform, and no, 230 is fine.

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It's not like it's an end run around it.

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They had an essential equation of who created the content and who made it wrongful.

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That's still core Section 230 stuff the way it was in the 1990s.

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And then I see the question about who gets to determine bad stuff.

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You know, I like to use the general term just to help people get their heads around it, but basically, the platform does.

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Because remember, I brought up that example of, like, you have a Facebook post and somebody posts a comment on it.

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You know, if they come and they insult your kid, you want to be able to delete that comment.

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Whereas if they come and they say your kid is awesome, you want to be able to leave that comment up.

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That is sort of the editorial discretion that the First Amendment protects.

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Same thing if you extend that.

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Instead of your own personal Facebook post, it applies to Facebook as a whole.

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They get to decide, because essentially, it offends the First Amendment to have an external government entity force anybody to carry speech.

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Minor exceptions to this, if we want to quibble, but they are very minor and they tend to be applied to things that are not the internet.

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So no, that's something that does get talked about a lot, where people are like, wait a minute, who gets to decide this?

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A private platform is a private platform, whether they're a large corporation of a lot of people who got together or a single person with their own post, it's the same equation.

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And the name of the YouTube competitor who got sued out of existence is, I don't know, the lawsuit ended up changed to shell, it was Veo Networks.

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That was the name of the video system.

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Veo Networks ceased to be, it is no longer a platform.

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So now my question is to Rihanna, what is wrong with the EARN IT Act?

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Thanks, Kathy.

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So everything is wrong with the EARN IT Act.

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Okay, end of stream.

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We're done here.

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We can all go home now.

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Thanks, everybody.

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Good night.

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No, so to be serious, the EARN IT Act is, I think, one of the most serious challenges and threats to online privacy, security, and freedom of speech that we have seen come across the transom in Congress for quite some time.

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It is one of, as Kathy mentioned, a bumper crop of anti-230 bills that would aim to narrow or even repeal Section 230 entirely.

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And sadly, it's also not the only anti-encryption bill out there right now, as I'll discuss in a moment.

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Kathy touched upon SESTA-FOSTA, which created a carve out from the 230 immunity with regard to sex trafficking offenses.

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In its current instantiation, the EARN IT Act bill is kind of similar, except instead of sex trafficking is child sex abuse material.

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Now, I'll call this CSAM for short.

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Child sex abuse material is a pernicious and difficult problem on the internet.

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It has been around ever since the days when people were allowed to transmit one file to another through some of the earliest services that you can think of, many of which I am too young to have used.

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And it's something that platforms have struggled with and that they've had to go through evolutions in their approaches to try and cut down on and prevent.

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The important thing to understand about CSAM is that it is illegal on the federal level, on the state level, across the entire planet.

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It's not legal anywhere.

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And as such, it is already subject to federal criminal statutes that impose duties on providers and platforms to report it and remove it when they learn about it on their services.

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That learning about it is important because it is what we would call an actual knowledge requirement in the law.

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Platforms are only required to take action about CSAM if they find out about it.

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That could be because a user reports it.

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It could be because they have an automated scanning service that looks at attachments that are in email or files that are uploaded to a cloud storage account to try and match against a database of hashes of known CSAM images.

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When they find something like this, they are required to report it to the National Center for Missing and Exploited Children, or NCMEC for short, which is a quasi-NGO, quasi, it's been deemed at this point to be an agent or an arm of the state, that handles reports of child,

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excuse me, of CSAM.

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Also, you might know NCMEC from the images on the side of milk cartons, the Have You Seen Me images.

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But I think at present, they're probably mostly associated with their really difficult role of having to process these reports that come in from providers.

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And providers do report CSAM that they learn about on their services millions of times a year.

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There's also federal requirements that say that the Department of Justice is supposed to provide funding for, conduct studies, conduct reporting with respect to all of these reports that are coming in with respect to trying to fight and minimize the abuse of children and other crimes against children online.

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They've been falling down on the job.

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They have not been filing their federally mandated reports most of the years that they have been required to do it over the last decade or so.

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And I think one of the motivations for the EARN IT Act bill is to try and point a finger away from DOJ's own shortcomings and away from how overwhelmed NCMEC is because they do not have the resources, they do not have the personnel they need in order to take on this task and deploy that platforms instead.

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And the way that they've chosen to do that is by taking kind of the, you know, the whipping boy do short, which is Section 230.

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Right now there's a lot of kind of popular discontent, I think, with Section 230, much of it ill understood.

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And so thank you to Kathy for trying to explain a bit better why Section 230 is a important force online.

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But by going after Section 230, it enables, I think, the DOJ to try and both direct attention away from its own shortcomings and also to promote an agenda that has long had for greater surveillance of online speech, and in particular to go after encryption,

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which is an area that I focus on in particular in my role at Stanford.

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So by curtailing immunity for under Section 230 for CSAM, there's nothing about that that is not something that DOJ can already do.

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Kathy discussed how one of the limitations on 230 immunity is that it already does not bar enforcement of federal criminal law.

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You even saw where she noted that child sexual abuse materials explicitly called out in that particular clause in 230.

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So it is already the case that if platforms are not complying with those aforementioned reporting duties when they learn about CSAM on their services that I mentioned, nothing at all is stopping the Department of Justice from penalizing those platforms.

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All Section 230 currently does is to bar state AGs, state attorneys general, from bringing criminal charges against platforms because Section 230 bars state criminal law, and it bars private plaintiff lawsuits by individual people with private right of action because those two are barred by the Section 230 immunity.

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So we're in a situation where providers are subject to statutorily mandated duties with respect to CSAM by all of evidence they are complying with those things, but there's a sense that they should be doing more.

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The fact that they are reporting millions of pieces of CSAM a year to NCMEC is taken not as evidence that they are finding and reporting things, but that they aren't doing enough, which is a bit curious.

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So the point of the Grant Act bill in its current instantiation since its introduction earlier this year kind of doesn't make sense under the name anymore because originally what the bill would have done would have been to make continued immunity under Section 230 contingent upon compliance by providers with some to-be-determined best practices.

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If you follow these best practices, you jump through the hoops, these would be set by an unelected commission of people headed by the Attorney General, then you could maybe continue to be eligible for continued Section 230 immunity for CSAM.

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Otherwise, you might just be sort of thrown to the wolves.

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That link between following the best practices set by the commission and continued immunity is taken out in the current version of ERNIT.

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Current ERNIT is much more like SESTA-FOSTA in that it abrogates the immunity full stop.

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It still has this commission, this 19-member commission, who are still charged with coming up with best practices for fighting CSAM online and protecting child safety online.

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However, those are now just non-binding voluntary recommendations that are not tied to any particular carrot or any particular stick under the bill.

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So there's nothing left to earn.

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There's no more immunity left to earn.

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And the ultimate upshot of all of this is because the removal of the 230 immunity bar opens up potential liability under what could be 50 or more state and territorial laws that deal with CSAM, there's a lot less certainty for platforms about what their duties are.

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Right now, they know what they have to do as specified under the federal reporting law.

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But under the ERNIT Act, there could be a variety of state laws that might open them up to liability for CSAM and to private civil lawsuits and to state AGs going after those platforms under what could be much lower bars.

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Going back to what I mentioned about the actual knowledge requirements under the federal reporting statute, that's a fairly permissive bar for platforms.

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It's not that low.

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Whereas, we know from a survey that a group called NetChoice has done of state CSAM laws, that some state level CSAM laws impose liability on those who trade or host or transmit CSAM under a much lower standard, such as negligence or recklessness.

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So platforms could easily potentially be held liable for CSAM on their services if they negligently or recklessly host it, transmit it, allow it to be promoted or presented or distributed, etc., etc.

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You might be asking yourself, wait a second, doesn't that just mean the ability to transmit files?

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Why, yes, it does.

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All of the things that we do online, such as talking to each other, such as sending files to each other, this is what the internet is for, those can also be used in ways that can lead to the exploitation of children or that can involve the transmission of CSAM online.

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So by potentially exposing platforms to liability for negligently or recklessly transmitting CSAM, they're really potentially exposing platforms to liability for hosting user contributing content at all, for the ability to transmit files, for the ability to speak online and speak to other people,

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some of whom may or may not be over the age of 18.

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So the chilling effect of this bill's potential cannot be overstated.

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We already saw with regard to FOSTA how it led to the shutdown of large swaths of completely legal speech on the internet.

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You may recall that Craigslist immediately shut down its entire personal section.

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They also shut down their section that allowed for therapeutic services.

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So massage therapists were suddenly out of that part of their livelihood that came from finding clients on Craigslist, for fear that somewhere in those personals ads, or somewhere in their massage therapy ads, there might be somebody who was being trafficked and exposed those platforms Craigslist to liability under SESTA-FOSTA.

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Here, similarly, we can predict that there would be a similarly large chilling effect on the ability of people to speak to each other online.

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Because again, what if any particular file might sneak through?

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What if some communication between two users on the service might be exploitative or enticement between an adult and a minor?

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These are all things that platforms are going to be wrestling with in the event the EARN IT Act passes, because they now may be exposed to liability under 50 or more state laws.

364
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So the fact that there have been some changes that were made to the EARN IT Act don't really fix the core problems with the bill.

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When we think about how this bill relates in particular to encryption, the changes that were made between the early version of the bill and the current version of the bill were intended to placate concerns somewhat.

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I'm here to tell you, it doesn't fix it.

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There's an amendment offered by Senator Leahy that was intended to protect encryption and take away, basically restore immunity from suit for the use of encryption, for deploying it in encryption, for providing device encryption, and so forth.

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It's not really enough, though, in my opinion.

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Both because it does not protect other forms of providing user security and would still allow lawsuits to arise if somebody who was determined to bring a criminal charge as a state AG or a private plaintiff were determined to bring a lawsuit.

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All they'd have to do would be to come up with some reason for suing, let's say WhatsApp, let's say Signal, that wasn't directly about the encryption .

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Any other pretext that they could find or any other security measure that was in use, even, say, data minimization practices, for example, if that would potentially get in the way of fighting CSAM, maybe that's something that you use as the basis for trying to make a platform liable.

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And on the other hand, I don't think that the way the Leahy amendment that is supposed to protect encryption is structured would necessarily mean that platforms would be safe from being pressured or induced into introducing other forms of user surveillance that don't touch the encryption.

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One of the moves that we have seen in the encryption debate over the last few years has been, as we've pushed back against proposals to weaken encryption, to insert mandatory backdoors into encryption, we have instead seen law enforcement proposals come out that say,

374
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well, how about this other idea?

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It doesn't involve breaking the encryption at all.

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And those include things like the so-called ghost user proposal proposed by GCHQ, the spy agency in the UK, which would silently add a law enforcement user to an otherwise end-to-end encrypted conversation while suppressing notifications to the people who are present in the conversation that this silent ghost law enforcement user has been added.

377
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It doesn't touch the encryption, right?

378
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It's still a way of undermining the privacy guarantees and security guarantees that you expect from using an end-to-end encrypted app.

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That's just an example of how the Leahy amendment doesn't really do enough to protect encryption and to keep providers from being disincentivized to continue offering end-to-end encryption and other security measures to their users.

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So I know I get a little head up about these things.

381
00:40:25,600 --> 00:40:27,280
It's hard to restrain.

382
00:40:27,280 --> 00:40:28,520
I could talk about this all day.

383
00:40:28,520 --> 00:40:42,660
But before I wrap up and we go on to maybe having a bit more of an actual fireside back and forth, I want to mention, I noted that Section 230 bills aren't the only threat to our encryption and privacy and online speech rights that are out there.

384
00:40:42,660 --> 00:40:48,220
There's another companion bill that was introduced by the same sponsor, Senator Graham, of the EARN IT Act.

385
00:40:48,220 --> 00:40:54,560
He introduced it just a few days before releasing the amended version of the EARN IT Act a few weeks ago.

386
00:40:54,560 --> 00:41:01,760
It's called the Lawful Access to Encrypted Data Act, or I like to say the L is silent, and it's the Awful Access to Encrypted Data Act.

387
00:41:01,760 --> 00:41:04,460
And that is just a flat-out backdoor bill.

388
00:41:04,460 --> 00:41:09,020
It is something that we have been waiting for, hoping wouldn't come out.

389
00:41:09,140 --> 00:41:10,860
Dreading, I think, is the word.

390
00:41:10,860 --> 00:41:12,820
Dreading is absolutely the word.

391
00:41:12,840 --> 00:41:31,440
It is really the full frontal nuclear assault on your ability to just be able to use encryption and move on with your life that we have gotten used to in recent years as encryption by default has become the norm in the devices that we use and in the apps and services that we use.

392
00:41:31,440 --> 00:41:54,260
So what is so dangerous about the LAED Act, or the Laid Act if you want to sound a little bit naughty about it, is that it would require basically any sort of larger provider, anybody who sold a million devices in the United States in a given year, or who has a million monthly active users in any given month dating back to 2016,

393
00:41:54,260 --> 00:42:07,520
so even retroactively, would have to proactively re-engineer their services to be able to comply with warrants or other legal process they received from law enforcement to decrypt information that was encrypted.

394
00:42:07,520 --> 00:42:10,840
They'd have to proactively redesign to build a backdoor in.

395
00:42:10,840 --> 00:42:33,720
If you are a smaller provider that's not part of that million plus club, let's say a very small handset maker or the provider of an end-to-end encrypted app or other encrypted service that does not have a million users, you still might, you're still covered by this bill because then the Attorney General would be able to serve a notice on you telling you to re-engineer your service and add that backdoor into your service,

396
00:42:33,720 --> 00:42:37,900
even though you would not be forced to re-engineer it proactively.

397
00:42:37,900 --> 00:42:56,640
So this bill was introduced, as I said, same sponsor, right before the EARNET amendments were made, clearly intended to make EARNET look more reasonable by comparison and make it look less like an attack on encryption by comparison because this is an overt rather than covert attack on encryption.

398
00:42:56,640 --> 00:42:58,820
But the lesser of two evils is still evil.

399
00:42:58,820 --> 00:43:02,700
Like the EARNET Act is bad and the LAED Act is worse.

400
00:43:02,700 --> 00:43:06,240
It's not as though Congress members have to pick between one or the other.

401
00:43:06,240 --> 00:43:16,980
They could just pick neither and, oh, I don't know, focus on making sure that millions of Americans don't become fucking homeless, you know, in the next few weeks and, you know, do something to fix the epidemic that is ravaging this country.

402
00:43:16,980 --> 00:43:24,280
Instead, lawmakers have been deciding to focus on what really matters, which is Google and Facebook are apparently annoying to some people.

403
00:43:24,280 --> 00:43:25,100
Whatever.

404
00:43:25,160 --> 00:43:28,860
Go and focus on what really matters, Congress, and start leaving the internet alone.

405
00:43:28,860 --> 00:43:30,580
Leave my right to encrypt alone.

406
00:43:30,580 --> 00:43:33,040
So please contact your Congress members.

407
00:43:33,040 --> 00:43:34,540
I wrote it down here.

408
00:43:34,540 --> 00:43:40,000
I'm making this very small so that nobody can just, you know, photoshop me and say something stupid.

409
00:43:40,100 --> 00:43:41,500
Know EARNETact.org.

410
00:43:41,500 --> 00:43:42,600
That's where you need to go.

411
00:43:42,600 --> 00:43:43,840
Call your Congress members.

412
00:43:43,840 --> 00:43:50,240
Call your senators in particular, because the EARNET Act bill has advanced fairly far within the Senate already.

413
00:43:50,240 --> 00:43:52,860
It's already gotten out of the committee in which it was introduced.

414
00:43:52,860 --> 00:43:55,580
It passed out unanimously out of that committee.

415
00:43:55,960 --> 00:44:12,560
And there has been efforts just this week by Senator Graham, its lead sponsor, to try and force it through by what's called unanimous consent so that it would pass out of the Senate without all of those members of Congress actually having to stand up there on the floor of the Senate and be seen on C-SPAN voting in favor of this terrible,

416
00:44:12,560 --> 00:44:13,700
destructive bill.

417
00:44:13,700 --> 00:44:15,820
So please contact your senators.

418
00:44:15,820 --> 00:44:17,340
Contact your House reps, too.

419
00:44:17,340 --> 00:44:22,340
And make sure that while you're at it, you tell them to oppose the Lawful Access to Encrypted Data Act as well.

420
00:44:22,340 --> 00:44:24,060
That bill hasn't gotten as far in the Senate.

421
00:44:24,060 --> 00:44:25,400
It hasn't gotten out of committee yet.

422
00:44:25,400 --> 00:44:35,220
But it has already had a companion bill introduced in the House by one of the same people who was behind the SESTA-FOSTA precursors and is also a threat to online speech.

423
00:44:35,220 --> 00:44:40,040
So make sure, tell your senators, tell your House reps, oppose both of these bills.

424
00:44:40,620 --> 00:44:46,740
And now that I can just stop being a little verklempt, I think we can move on and have this chat.

425
00:44:46,740 --> 00:44:48,560
We're not going to completely move on.

426
00:44:48,560 --> 00:44:52,280
We're going to tease out some of the reasons why this is bad.

427
00:44:52,280 --> 00:44:59,600
Because I think we need to, the same way we need to understand how 230 works, I think we need to understand what went wrong and what goes wrong here.

428
00:44:59,740 --> 00:45:04,640
So I think one of the things that's come up is, this is not a small thing.

429
00:45:05,060 --> 00:45:11,440
That basic thing we talked about, about what should Congress want from the internet providers?

430
00:45:11,440 --> 00:45:14,880
Them to help us get the most good stuff and the least bad stuff.

431
00:45:14,880 --> 00:45:19,160
And one of the things you talked about is that it does the exact opposite.

432
00:45:19,160 --> 00:45:36,080
You talked about how it will make platforms completely afraid to remain available to intermediate good content because anything could set off the liability threat, especially now when we're adding all those different states.

433
00:45:36,080 --> 00:45:52,440
So remember that one of the things I pointed out was there was a preemption clause in section 230 because it would be a mess if you had 50 different state attorney generals with 50 different opinions about how things should be, essentially getting to decide what internet policy was.

434
00:45:52,440 --> 00:46:09,120
And so you point out that the internet essentially does away with that preemption and now puts an awful lot of power among individual state attorney generals to essentially censor the internet and it'll essentially become a situation of the least common denominator of,

435
00:46:09,120 --> 00:46:14,340
you know, that may be great that 49 states are like, yeah, yeah, whatever, be reasonable, it's fine.

436
00:46:14,340 --> 00:46:23,260
But if one state is like, I'm coming to get you if you do something that offends what I've declared to be the policy so that I can get re-elected next term, that's going to be a problem.

437
00:46:23,260 --> 00:46:41,260
And basically the rest of the United States, their internet experience will get shaped by that single, it's the least common denominator thing that if one state, you know, wants to have something that's irrational, but it's on the books, they've got the power now to do it because the section 230 protection goes away.

438
00:46:41,260 --> 00:46:49,180
And when that protection goes away, the choices that platforms make to have the most good stuff and to minimize the bad stuff goes out the window.

439
00:46:49,480 --> 00:47:06,880
You also talked about how it messes up them being partners and getting rid of the bad stuff, because right now we've already left because of that carve out for federal criminal law, we've told them, go ahead and, you know, we want you to get rid of the child porn,

440
00:47:06,880 --> 00:47:08,280
get rid of that.

441
00:47:08,880 --> 00:47:18,760
Platforms are making an effort to do it, but now you've sort of created a weird incentive of like, if you look for it, now you might be in trouble for having found it.

442
00:47:18,760 --> 00:47:22,380
So why would a platform now want to look for it?

443
00:47:22,380 --> 00:47:24,820
That seems like it would just be begging for trouble.

444
00:47:24,920 --> 00:47:28,000
Why wouldn't they just encrypt everything so that they could see nothing?

445
00:47:28,240 --> 00:47:30,140
And now we mess up your encryption.

446
00:47:30,240 --> 00:47:50,400
And yeah, so I mean, let's talk a little bit about the politics because I think one of the things and one of the reasons why we wanted to do this talk is because section 230 has become this very hot topic that everybody is banding about because it's become the easy scapegoat for anything that's wrong online and anything that's wrong online that's affecting the rest of our world,

447
00:47:50,400 --> 00:47:53,920
which is difficult these days for a variety of reasons.

448
00:47:54,520 --> 00:48:03,020
So you have people who have differing agendas, but we're all kind of unhappy these days and we've now found something to blame.

449
00:48:03,020 --> 00:48:18,040
And so you end up with these weird bedfellows of, Ernact Act is sponsored in part by Senator Graham, who is a Republican, but it's also equally pushed by Senator Blumenthal, who is a Democrat.

450
00:48:18,040 --> 00:48:29,420
How on earth did we get a Republican and Democrat in this incredibly polarized world to agree that messing up section 230 with this law is a good idea?

451
00:48:29,420 --> 00:48:33,600
How does this have appeal to both parties at the same time?

452
00:48:33,600 --> 00:48:38,220
And does that maybe suggest for each camp that maybe they should rethink it?

453
00:48:38,220 --> 00:48:46,360
Because if the thing they want is making the other side happy, maybe that should cause some concern about what it is they actually want.

454
00:48:46,360 --> 00:48:50,240
I mean, the easy answer there is this is a bill that's supposed to be about child safety.

455
00:48:50,240 --> 00:49:03,080
It's not actually going to help protect children on the internet because if major platforms like Facebook or like Twitter now know that they are exposed to liability unless they get a lot more intrusive in terms of the amount of information that they collect from users,

456
00:49:03,080 --> 00:49:20,260
in terms of the surveillance they do of their users, then everybody who is treating in this material on these major platforms is just going to be forced off and they're going to be using Tor hidden services and they're going to be on other sites that don't comply with federal CSAM reporting laws because they exist in order to host this kind of material,

457
00:49:20,260 --> 00:49:26,980
don't qualify for section 230 because they are themselves engaged in violating the law, and don't care.

458
00:49:26,980 --> 00:49:31,120
So it's not going to achieve the stated goal of helping protect children.

459
00:49:31,120 --> 00:49:41,800
By the way, this does not provide the sorts of services for housing stability, for removing children from abusive homes, all the stuff that you could try to do to prevent abuse from happening in the first place.

460
00:49:41,980 --> 00:49:45,280
It's just meant to be another thing of the children bill.

461
00:49:45,280 --> 00:49:48,960
And so it doesn't achieve those goals that it sets out to do.

462
00:49:48,960 --> 00:50:01,620
But by being out there as a bill that's purporting to protect child safety, it makes it much more bicameral friendly in terms of getting a bipartisan buy-in from each side of the aisle.

463
00:50:01,680 --> 00:50:08,080
And it makes it a lot harder for members of Congress to vote against it, because who wants to be seen as voting against something that helps the children?

464
00:50:08,080 --> 00:50:09,060
Do you hate the children?

465
00:50:09,060 --> 00:50:10,260
You must hate the children.

466
00:50:10,360 --> 00:50:12,120
Well, it prompts the two questions.

467
00:50:12,180 --> 00:50:16,420
One, this isn't actually going to help them, it's going to hurt them, correct?

468
00:50:16,820 --> 00:50:17,540
Right.

469
00:50:17,680 --> 00:50:18,000
Yeah.

470
00:50:18,000 --> 00:50:18,280
Okay.

471
00:50:18,280 --> 00:50:23,640
So first of all, it's not going to accomplish what it set out to do, just like FOSTA didn't accomplish what it set out to do.

472
00:50:23,640 --> 00:50:28,700
But I think the big problem is, yeah, who wants to vote against keeping children safe?

473
00:50:28,700 --> 00:50:36,740
So if it's got that banner bumper sticker, think of the children, vote for this, it's a very difficult thing politically to say no to.

474
00:50:36,780 --> 00:50:42,700
But that means that it becomes a really convenient cover for people who have other agendas.

475
00:50:43,600 --> 00:50:48,200
Because they've now made the poison pill that the other side can't say no to.

476
00:50:48,240 --> 00:51:00,660
And I mean, that was happening even with SESTA-FOSTA, where people who had agendas for why they wanted to get Section 230 off the books, were able to push that.

477
00:51:00,660 --> 00:51:04,420
Do you have any thoughts about what some of these agendas are?

478
00:51:04,640 --> 00:51:06,080
I mean, I absolutely agree.

479
00:51:06,080 --> 00:51:15,820
And you know, there's an organization of sex workers, and allies who have been really vocally working against EARN IT ACT, as they did against SESTA-FOSTA called Hacking and Hustling.

480
00:51:15,820 --> 00:51:26,420
And one of the slogans that they use when they are describing both the impact of SESTA-FOSTA and the likely impact of EARN IT, is that it punishes people because we want to punish platforms.

481
00:51:26,420 --> 00:51:29,460
Not you and I, we, but you know, the general...

482
00:51:29,460 --> 00:51:31,100
We personally, no, we're cool with them.

483
00:51:31,100 --> 00:51:31,360
Yeah.

484
00:51:31,680 --> 00:51:34,480
Don't punish people because you want to punish platforms.

485
00:51:34,480 --> 00:51:41,680
If the idea is somehow that Google or Facebook or whoever is too big for their britches, or they're making too much money, our tax code allows them to make it.

486
00:51:41,680 --> 00:51:45,280
Or they're somehow acting above the law, the law permits them to do everything that they're doing.

487
00:51:45,280 --> 00:51:46,620
That's what Section 230 does.

488
00:51:46,720 --> 00:51:56,100
Then, you know, you pass a bill that ends up making it more dangerous for sex workers to be alive, to exist, to work.

489
00:51:56,100 --> 00:52:03,140
And that will make it harder, potentially, to prosecute CSAM traders if this bill passes.

490
00:52:03,200 --> 00:52:07,200
I agree with you that there is an ulterior agenda in each of these cases.

491
00:52:07,200 --> 00:52:24,660
And one thing that I thought was really problematic, in particular, about the use of the EARN IT bill, as what was clearly just a Trojan horse for trying to ban encryption, or at least strongly discourage it, was that we're talking about such a wide range of services that would be covered when really we're talking about a couple of different things.

492
00:52:24,660 --> 00:52:31,180
The thing that makes people angry about the way that the internet kind of sucks is the stuff that's not encrypted.

493
00:52:31,180 --> 00:52:38,740
It's the comments that you see on Twitter, it's the comments you see on YouTube, it's why we have emoji-only chat in our Twitch stream this weekend.

494
00:52:39,040 --> 00:52:47,440
You know, it's the things that are happening in unencrypted spaces, I think, are largely what motivate people being just kind of sick and tired of what the internet feels like these days.

495
00:52:47,440 --> 00:52:57,640
And yet, the thing that is being attacked by efforts to sort of be a backdoor to an encryption backdoor mandate is encrypted private communications.

496
00:52:57,640 --> 00:52:59,060
It's private spaces.

497
00:52:59,060 --> 00:53:09,100
So it's trying to take this popular anger at something that doesn't have to do with the private communications that we have in one-on-one spaces and sort of misdirect it.

498
00:53:09,100 --> 00:53:19,740
Again, this is all a big game of misdirection between the DOJ, which I'm convinced largely wrote both of the bills I'm talking about, especially the second one, to try and push that agenda.

499
00:53:19,740 --> 00:53:23,740
And, you know, I do believe overall that, you know, it would be very difficult.

500
00:53:23,740 --> 00:53:29,660
We talk in the encryption debate sometimes about finding some sort of middle ground proposal or some sort of compromise.

501
00:53:29,840 --> 00:53:39,580
But it seems like the only compromise, the only middle ground is only ever demanded from the people who have the right and now the ability to protect themselves and to exercise their rights.

502
00:53:39,580 --> 00:53:42,620
It's never a law enforcement offering to give ground.

503
00:53:42,620 --> 00:53:44,120
I'm very dubious.

504
00:53:44,720 --> 00:53:52,880
I mean, I've been called an absolutist, but the reason I'm an absolutist is I'm really dubious about that there's a way to have a compromise.

505
00:53:52,880 --> 00:54:00,480
I mean, I pulled up, I did this slide about the Digital Millennium Copyright Act, which in theory is a type of conditional safe harbor.

506
00:54:00,480 --> 00:54:05,140
If you do X, Y, and Z, okay, then you're not in trouble for your third party content.

507
00:54:05,140 --> 00:54:07,100
But it's a mess.

508
00:54:07,180 --> 00:54:09,420
It's very difficult to figure out the conditions.

509
00:54:09,420 --> 00:54:11,100
It's very difficult to meet them all.

510
00:54:11,100 --> 00:54:12,940
It's not necessarily realistic.

511
00:54:12,940 --> 00:54:32,880
The point I didn't make for that is how much censorship of lawful speech happens because we've made this, the platform protection so conditional where people send garbage takedown notices that the platforms really have no choice but to take down, even though the copyright claims behind them are garbage,

512
00:54:32,880 --> 00:54:35,460
sometimes because they're not even really copyright claims at all.

513
00:54:35,460 --> 00:54:43,340
But a platform handling voluminous content with and potentially expensive liability doesn't have the ability to say no to them.

514
00:54:43,340 --> 00:54:44,620
I mean, sometimes they do.

515
00:54:44,620 --> 00:54:47,720
But it's rare, because it can't happen all that often.

516
00:54:47,720 --> 00:54:49,300
It's just not practical.

517
00:54:50,120 --> 00:54:55,380
So I don't see how we can, this is kind of an all or nothing thing.

518
00:54:55,380 --> 00:54:59,780
And that's why I go back to the, do you want the most good stuff and least bad stuff?

519
00:54:59,780 --> 00:55:03,960
I think there's really only one way to achieve it.

520
00:55:03,960 --> 00:55:13,720
And that's by aligning the incentives of we have more tools in our regulatory tool belt to regulate, it doesn't have to be penalty based.

521
00:55:13,720 --> 00:55:15,880
And somehow I think we're not good at that.

522
00:55:15,880 --> 00:55:28,340
I think we don't understand how to regulate effectively by making parties partners, where acting consistent with their own interests happens to get them to do what we want.

523
00:55:28,860 --> 00:55:36,020
The reason the internet sprouted and did so well in 20 years is because that's how we regulated because that's how we made it work.

524
00:55:36,020 --> 00:55:39,880
And that's how we went from basically no internet to an awesome internet.

525
00:55:39,880 --> 00:55:47,780
I mean, it's got wrinkles, but you can connect the whole world, we can connect like an infinite amount of knowledge and ideas and make connections.

526
00:55:48,580 --> 00:55:51,580
By and large, it is incredibly awesome.

527
00:55:51,780 --> 00:56:03,280
Maybe part of the problem we have is that, you know, if you've got 7 billion people on, you know, connected to each other, some of them suck, some of them are not good people, some of them say terrible things.

528
00:56:03,280 --> 00:56:11,840
And when these terrible things happen, we become hyper aware of them, because a we now can be aware of them, because the internet is providing us with that information.

529
00:56:12,140 --> 00:56:17,860
And they end up with this outsized effect, like, oh, my gosh, I can't believe what that person did.

530
00:56:17,860 --> 00:56:19,080
And we're upset about it.

531
00:56:19,080 --> 00:56:23,620
And we look at what existed that allowed the bad thing to happen.

532
00:56:23,620 --> 00:56:24,840
Well, that was the internet.

533
00:56:24,840 --> 00:56:27,360
And the internet got to exist because of Section 230.

534
00:56:27,360 --> 00:56:30,480
So therefore, 230 is bad, let's get rid of it.

535
00:56:30,480 --> 00:56:37,020
And it's really hard to sort of call time out to reasonable people and say, hang on, maybe that's not the best way to think about it.

536
00:56:37,020 --> 00:56:46,260
Although, that's why we're doing presentations like this, to kind of walk people through the thinking, so that they understand that, like, no, this is really important and really valuable.

537
00:56:46,260 --> 00:56:52,040
And maybe the things that are going wrong are things that we should target our regulation to.

538
00:56:52,040 --> 00:57:07,280
That if we're upset about something, let's carefully define the problem and come up with an appropriate solution that helps, you know, fix the thing that's wrong without just taking away the whole thing that's created the internet, good things and bad things,

539
00:57:07,280 --> 00:57:09,320
because now we won't have the internet at all.

540
00:57:09,320 --> 00:57:09,640
Right.

541
00:57:09,640 --> 00:57:13,060
Human terribleness has been around since well before there was an internet.

542
00:57:13,060 --> 00:57:16,280
People have been terrible for as long as they have been people.

543
00:57:16,660 --> 00:57:26,820
Nevertheless, I like your point about how we tend to sort of focus on the bad parts without thinking about the vast majority of perfectly fine content.

544
00:57:26,820 --> 00:57:28,400
The same is true of encryption.

545
00:57:28,400 --> 00:57:47,620
You know, I feel that the focus on the use of encryption to to commit crimes or to hide evidence of crimes gets blown all out of proportion compared to how rare the instance of crime really is when you compare it to the fact that more than one out of seven humans on this planet use WhatsApp.

546
00:57:47,620 --> 00:57:50,200
One billion people aren't criminals.

547
00:57:50,200 --> 00:57:50,300
Right.

548
00:57:50,300 --> 00:58:01,060
So most of the usages, most of the people using encrypted apps, most of the people using encrypted devices, which at this point is basically everybody, just by default, most of that is not for crime.

549
00:58:01,060 --> 00:58:16,160
And so we lose sight of placing these things into context and thinking in more big picture about what the cost benefit analysis is of trying to increase surveillance and reduce free speech rights for everybody through bills like this.

550
00:58:16,260 --> 00:58:19,680
I want to make sure we get to some of the questions that have been coming in.

551
00:58:19,680 --> 00:58:22,320
We have maybe about five or ten minutes left to take questions.

552
00:58:22,320 --> 00:58:25,060
I know we've run over a little bit, but it's the end of the day.

553
00:58:25,060 --> 00:58:26,400
There's no rules.

554
00:58:27,360 --> 00:58:29,380
Well, wait till Congress gets at it.

555
00:58:29,380 --> 00:58:35,640
But OK, so I think some of these questions now, some of them are sort of technical to 30 questions.

556
00:58:35,960 --> 00:58:43,080
I almost can globally say, yes, 230 totally applies, although, yeah, if we can get to them, we'll be more specific.

557
00:58:44,480 --> 00:58:48,180
Actually, the most interesting one is one that I've been putting forth.

558
00:58:48,180 --> 00:58:51,820
And since I'm a speaker, I can say that somebody asked a question about 230 and Amazon.

559
00:58:52,000 --> 00:59:00,540
One of the things that's starting to happen is some of Internet services have started to look more like actions than speech, because people sell things on Amazon.

560
00:59:00,540 --> 00:59:02,880
And is that a different sort of activity?

561
00:59:02,880 --> 00:59:13,300
And I've argued in briefs before courts that basically it still boils down to speech, that if you're on Airbnb, what you're really saying is, I have an apartment to rent.

562
00:59:13,340 --> 00:59:19,700
That may be the only thing you're really saying on Airbnb, because it's a very hyper-focused platform.

563
00:59:19,800 --> 00:59:26,220
But again, that whole slide about 230 is kind of general in its application, and it applies to a whole bunch of things.

564
00:59:26,220 --> 00:59:33,820
It can apply to Amazon when you regard that a third-party seller is really a seller saying, I have a thing to sell.

565
00:59:33,820 --> 00:59:49,760
And that when we start imposing liability for attacks to the sale, that ripples through and affects every platform that hosts every type of expression, because there's no real contingency of whether 230 applies to a broad-based platform that takes all sorts of speech,

566
00:59:49,760 --> 00:59:55,360
or a narrow-focused platform that takes very specific, I'm only selling this kind of thing type of speech.

567
00:59:55,500 --> 00:59:58,360
So that's a lot of the 230 things.

568
00:59:58,660 --> 01:00:05,980
On the EARNET side, people are asking, and maybe this is the way to phrase the question, if EARNET passes, what happens?

569
01:00:06,180 --> 01:00:07,940
Does signal go offshore?

570
01:00:07,940 --> 01:00:09,140
Does something go offshore?

571
01:00:09,140 --> 01:00:10,560
Does the internet die?

572
01:00:10,560 --> 01:00:12,140
I mean, it kind of died.

573
01:00:12,140 --> 01:00:20,000
Well, it didn't completely die with FOSTA, except it really took a very severe hit, and so did an awful lot of the users who used it.

574
01:00:20,000 --> 01:00:24,420
Like, that body count of sex workers is significant and real.

575
01:00:24,780 --> 01:00:27,700
So let me ask you, what happens if EARNET passes?

576
01:00:27,900 --> 01:00:38,840
If EARNET passes, I think we will immediately see even more shutdowns of portions of services, or even maybe entire services, just as we saw immediately the moment SESTA-FOSTA was signed into law.

577
01:00:38,840 --> 01:00:46,880
I think we'll see a lot of litigation, including over this encryption safe harbor that Senator Leahy tried to insert in.

578
01:00:47,360 --> 01:01:00,860
It basically creates kind of a license to litigate, where because it is narrowing what should be a broad immunity, and which already takes quite a lot of litigation often to just get to the point of saying, no, Section 230 bars this lawsuit and kicking it out of court.

579
01:01:00,860 --> 01:01:12,560
I think we'll see a lot of litigation over whether a lawsuit is trying to hold a platform accountable for CSAM on its service on the basis of encryption or some other thing.

580
01:01:12,560 --> 01:01:14,480
If it's encryption, then the lawsuit is barred.

581
01:01:14,480 --> 01:01:19,720
If it's some other pretextual reason that the plaintiff or the state AG can come up with, then it's not going to be barred.

582
01:01:19,720 --> 01:01:30,440
So we'll see platforms drawn into quite a lot of litigation, and that's for the ones that dare to continue providing any kind of functionality for user-generated content at all.

583
01:01:30,440 --> 01:01:33,420
I think we may see small platforms start to shut down.

584
01:01:33,520 --> 01:01:39,160
It's true that Signal has threatened to go offshore and move to another jurisdiction.

585
01:01:39,160 --> 01:01:41,400
This is one of the limitations with this bill.

586
01:01:41,400 --> 01:01:46,340
I don't know how it could possibly purport to touch open source tools.

587
01:01:46,340 --> 01:01:51,160
Most of the encrypted tools out there are either open source or housed overseas outside of U.S.

588
01:01:51,160 --> 01:01:52,040
jurisdiction.

589
01:01:52,040 --> 01:01:58,980
So these tools would still be available, and those who want to use encrypted tools for bad acts would flock to using them.

590
01:01:58,980 --> 01:02:01,600
There's another question in the stream about that.

591
01:02:02,300 --> 01:02:16,380
But the people who are just everyday average users probably won't take the time to seek out services that have not been intentionally weakened in order to try and avoid the specter of liability that EARNET would raise, in the event that that is in fact what platforms do.

592
01:02:16,380 --> 01:02:35,980
I think we'll see a difference between the response, as you were talking about earlier, between the large well-resourced platforms that can handle the deep pockets needed to face this kind of litigation and try to make that calculation that they would rather protect their users and continue keeping these kinds of security protections in place and just deal with,

593
01:02:35,980 --> 01:02:39,200
you know, paying for the stuff that they don't catch.

594
01:02:39,260 --> 01:02:44,860
And we might see smaller services either shutting down or, as mentioned, potentially offshoring.

595
01:02:44,860 --> 01:02:45,940
So we'll see.

596
01:02:45,940 --> 01:02:55,080
But all the uncertainty that that opens up is just another reason to, like, keep fighting against this bill, because everything about the world is uncertain right now.

597
01:02:55,080 --> 01:03:00,380
I would like to know that, like, my ability to just use my phone and use whatever you signal is still certain.

598
01:03:00,380 --> 01:03:07,540
So I think this boils down to that, you know, understand how the law works and the basic mechanics of it.

599
01:03:07,540 --> 01:03:09,400
That's how 230 works.

600
01:03:09,400 --> 01:03:12,900
And then definitely understand how the statute messes with that.

601
01:03:13,160 --> 01:03:19,660
I think it boils down to also, like, I asked the question about, like, what is the political motivation behind some of these things?

602
01:03:19,660 --> 01:03:29,420
And to the extent that there's genuine displeasure with some of the larger internet companies, the point you're making also is that they'll probably be able to survive.

603
01:03:29,420 --> 01:03:33,520
But if one of the things we really want to have, like, if we don't like Google, we really need a new Google.

604
01:03:33,520 --> 01:03:35,360
And this is not going to help us get a new Google.

605
01:03:35,360 --> 01:03:40,980
This is going to help us double down and entrench the Google with everything we don't like about it doubled down.

606
01:03:41,020 --> 01:03:43,700
So it doesn't actually solve any of our problems.

607
01:03:43,900 --> 01:03:47,700
And I think the thing is , like, the internet might limp along, it's pretty great.

608
01:03:47,700 --> 01:03:54,780
But I mean, to the extent that the internet facilitates human speech among 7 billion of us, that's a great thing.

609
01:03:55,040 --> 01:04:00,060
And when we take that away, I think we will miss it greatly.

610
01:04:00,180 --> 01:04:04,780
And so I think our final thought is, we need to be a lot more careful.

611
01:04:04,780 --> 01:04:08,460
We can't do legislation based on convenient bumper stickers.

612
01:04:08,460 --> 01:04:27,900
We really have to understand very carefully the dynamics of how law works, how human beings work, and how we start driving behavior when we start imposing punishments or even just uncertainty on people who are talking, expressing themselves, or facilitating that expression.

613
01:04:27,980 --> 01:04:29,780
Any other final thoughts?

614
01:04:31,720 --> 01:04:38,640
Yeah, I mean, just to say again, like, please take action, please call your senators, take action against both of these bills.

615
01:04:38,980 --> 01:04:41,640
There's a question about whether this would be bad for the US economy.

616
01:04:41,640 --> 01:04:53,300
I think the other bill, the LAED bill is a greater threat to the economy on the basis of a similar bill having been passed in Australia a couple of years ago that has really helped to screw up their tech economy sector there.

617
01:04:53,500 --> 01:05:04,560
So I think we would see, yes, a negative impact from the LAED Act, but also from EARNET, because of the lesser amount of vibrant services that we'd be able to see online.

618
01:05:04,800 --> 01:05:07,820
So anyway, I could rant about this all day.

619
01:05:07,820 --> 01:05:10,960
I can rant about 230, my favorite thing.

620
01:05:10,960 --> 01:05:13,320
I mean, I want people to understand it.

621
01:05:13,320 --> 01:05:19,360
I want, you know, right now, there's an awful lot of people with an awful lot of agendas saying, Section 230 bad.

622
01:05:19,440 --> 01:05:23,180
And I think the general populace is like, I don't understand.

623
01:05:23,180 --> 01:05:24,500
Yeah, that sounds good to me.

624
01:05:24,500 --> 01:05:29,100
I want everybody who's listening to be somebody who says, Aha, maybe that's not good.

625
01:05:29,100 --> 01:05:30,700
Maybe I should really rethink that.

626
01:05:30,700 --> 01:05:39,100
And to start, I think if people really understood what is being threatened by this legislation, they would not be for it.

627
01:05:39,200 --> 01:05:42,980
But I, you know, laws is kind of scary and complex system.

628
01:05:43,040 --> 01:05:45,760
And you leave it to other people to do that thinking for you.

629
01:05:45,760 --> 01:05:53,320
But I think, is make it that you can understand the mechanics of how this works, to draw an opinion.

630
01:05:53,320 --> 01:05:55,920
And I think that opinion will be that this is not a good idea.

631
01:05:55,920 --> 01:05:58,880
It's just that it's not always intuitive to understand this dynamic.

632
01:05:58,880 --> 01:06:00,020
How does the law work?

633
01:06:00,020 --> 01:06:02,120
Why do things respond to it?

634
01:06:02,120 --> 01:06:03,740
So hopefully, we can demystify it.

635
01:06:03,740 --> 01:06:17,340
And there's an awful lot of advocates out there, me, Rihanna, EFF, other organizations who, you know, are happy to sort of answer questions and help sort of make people understand what's really at stake with any of these bills.

636
01:06:18,900 --> 01:06:22,740
So I think that actually brings us to an end.

637
01:06:22,740 --> 01:06:25,480
Thank you so much, Village, for having us.

638
01:06:25,480 --> 01:06:27,620
And thank you, Rihanna, for doing this with me.

639
01:06:28,280 --> 01:06:29,500
I think this was great.

640
01:06:29,500 --> 01:06:31,480
And hopefully everybody watching thinks so.

641
01:06:32,720 --> 01:06:36,460
Great, thank you so very much to both of you.

642
01:06:36,460 --> 01:06:40,920
It was a pleasure to wrap up our very first day with you both.

643
01:06:41,200 --> 01:06:44,880
And so thank you, again, for speaking at the Village.

644
01:06:45,620 --> 01:06:49,140
Folks, this is the end of the day for us.

645
01:06:49,140 --> 01:06:59,000
We have survived day one of Virtual Crypto and Privacy Village, which frankly took more years off of my life than maybe all of 2020.

646
01:06:59,000 --> 01:07:00,380
No, I'm just kidding.

647
01:07:00,380 --> 01:07:15,840
But I will say, like an influencer, because I've never really streamed, if you like and subscribe below, we have various different avenues that you can communicate with us, reach out to us, engage with us.

648
01:07:15,840 --> 01:07:22,680
Since we can't be with all of you in person this year, please feel free to reach out to us on Twitter.

649
01:07:23,080 --> 01:07:28,380
For volunteers, I'm reaching out to you about a happy hour tonight.

650
01:07:28,480 --> 01:07:33,360
And to all of our speakers, thank you, thank you so much again.

651
01:07:33,360 --> 01:07:40,120
And if I haven't said this enough, thank you so much to everyone else who makes the Crypto and Privacy Village possible.

652
01:07:40,120 --> 01:07:52,760
There are a ton of folks who spend a lot of time, who have done so much work for the Crypto and Privacy Village this year to make it happen as we shifted gears from going live to going virtual.

653
01:07:52,980 --> 01:08:00,580
I could list all of their names now, but I'll save that for another time when I get to host and see you all again.

654
01:08:00,580 --> 01:08:07,320
So I'm going to transition and hopefully not break OBS because I'm doing both.

655
01:08:07,320 --> 01:08:17,160
So let's see if we can go to something that is a little more on five.

656
01:08:17,160 --> 01:08:19,880
Thank you, everyone, and I'll see you soon.