Last month, we expressed concerns about how the STOP CSAM Act threatens encrypted communications and free speech online. New amendments to the bill have some improvements, but our concerns remain.
The STOP CSAM Act Should Not Use the EARN IT Act as a Template for How to Protect Encryption
The amendments to the STOP CSAM Act make the bill similar to the EARN IT Act, which is to say, still highly dangerous for encryption.
TELL CONGRESS NOT TO OUTLAW ENCRYPTED APPS
In their current versions, both the STOP CSAM and EARN IT bills remove Section 230 immunity for civil claims against internet intermediaries for injuries involving CSAM, although at the moment EARN IT creates the possibility of a broader range of state and federal claims against platforms (as well as broader criminal liability).
Two main amendments limit the scope of the civil claim in the STOP CSAM Act.
First, the latest amendments introduce the same misleading “encryption exception” found in the EARN IT Act. We’ve written at length about why the encryption exception is insufficient. Although the exception purports to protect online platforms from liability for offering encrypted services, it specifically allows the use of encryption to be introduced as evidence of the facilitation of illegal material.
Second, the civil claim previously could be premised on “negligent” behavior by the platform. The amendments now require that the civil claim be premised
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