
The EARN IT Act Violates the US Constitution - notRobot
https://www.eff.org/deeplinks/2020/03/earn-it-act-violates-constitution
======
cyphar
It's strange to me that technology workers are seemingly unwilling to unionise
and hold general strikes to protest these kinds of policies -- if we aren't
willing to take real collective action, we aren't ever going to have our
voices heard. When Australia passed an even more ludicrous anti-encryption
bill a year ago, the only real response by the technology community was a
handful of blog posts (after it was too late to do anything about the
legislation[+]) and grand-standing on twitter.

Why are we so shocked when politicians don't listen to us? We act like
petulant children -- small bursts of outrage, but with no consequences for the
people in power.

[+]: Most posts were published either a day or two before it passed through
the House of Reps, and some were posted _during the day of the Senate
discussion and passage_. I did submit comments during the comment period, but
we all know that had zero effect on their decisions.

~~~
LatteLazy
Unions exist primarily to engage with employers, not government. Governments
are very weary to permit any union to become politically important for
historic reasons. And any wise union thinks twice before getting involved in
politics.

So you'd need workers to unionize (which they have NOT done to deal with their
employers). AND for that union to pick the federal government as it's first
opponent (and not it's members' employers!?). AND to get that all done before
this bill becomes law (and in a time of epidemic). AND then for them to win an
uphill battle with the most powerful political entity on earth despite the
fact that ~80% of voters don't know what you're campaigning about and if they
did wouldn't care.

I think the real question here is why tech companies (or rather their CEOs,
founders etc) are not making a fuss. I was disappointed by the revelations
from Snowden about how Google, FB, Apple, ISPs and everyone else turned over
everything without asking any questions before it was even legal after sept.
11th. But I gave them the benefit of the doubt: they were afraid, they wanted
to be patriotic, it's hard to say no when someone asks nicely etc. Then they
were all "outraged" by the revelations. If they were really outraged, they'd
be buying senators, hiring PR firms and making public statements decrying
this.

The cynical answer to that is that these companies have made a calculated
decision not to pick a fight most users don't (yet) care about.

I'd also be careful calling us petulant. Politicians ignore us because 90% of
people are not informed and choose not to think about history when these
issues come up. But the audience here are mostly members of the other 10%.
Since we're overwhelmingly outnumbers, out voted and ignored, what can we do
but be outraged, share some articles about self-service-encryption and then
move on?

Sorry, I've been quite confrontational in this comment. I also think there
will be a lot more "outrage" than action on this. But when the possible action
is very limited... Unionization would likely be positive too, I just think it
would be a small part of a large and complex solution.

~~~
cyphar
> Unions exist primarily to engage with employers, not government.

Labor parties in countries like the UK and Australia specifically exist to act
as union-supported (and funded) parties. Unions do exist to help deal with
members' employers, but they also exist to allow for collective political
action.

An obvious example worldwide is teachers' unions (though you could argue
because their employer is the state government, the union _is_ fighting
against their employer). Another example would be the strikes in the UK during
Thatcher's time in office. Not to mention that basically all workers' rights
legislation in most countries came out of battles between unions and
governments, hence why they are so "weary" to "permit" unions to take
political action -- because collective action works.

> So you'd need workers to unionize (which they have NOT done to deal with
> their employers) [...]

There's a saying about the second best time to plant a tree being today, and
that applies here. This battle is most likely already lost, but actively
choosing to not learn a lesson from it (unionise and mobilise for the next
time this happens) is simply foolish. Ideally the technology industry would've
unionised 30 years ago, but you'll never have any strength if the immediate
response to someone saying "we should unionise" is "even if we unionised right
now we couldn't solve $current_problem". Even if that is true, maybe having
that infrastructure in place will allow you to solve tomorrow's problem?

> I think the real question here is why tech companies (or rather their CEOs,
> founders etc) are not making a fuss.

I hope by "fuss" you mean "shutting down operations until demands are met".
Plenty of CEOs blogged about how insane the aforementioned anti-encryption
legislation is (as they have in most of these cases). Looks like that doesn't
work, maybe we should stop trying the same tactic?

> Politicians ignore us because 90% of people are not informed and choose not
> to think about history when these issues come up.

If (hypothetically) Google shut down for a week over this or any other bill,
it would not be passed. They ignore us because all of our complaining _is_
petulance -- it's not a substitute for action. That's the entire historic
purpose of general strikes.

~~~
LatteLazy
The last Labour (UK) government launched the Iraq war, started privatising the
NHS, brought in student fees and cut benefits for working people. They
supported measures far more draconian than this, including detaining people
without charge for 28 days.

The party was founded to empower workers and unions. But that was in 1900.
Things have changed a lot on the last 120 years.

>If (hypothetically) Google shut down for a week over this or any other bill,
it would not be passed.

Assuming that's true, its irrelevant. No one here can turn off Google (or
Facebook or whatever else) for a week. So no one here is being petulant are
they? A few very rich and powerful people might be able to. I'm happy to agree
they should do more. But 99.999% of people can do nothing but complain.

Edit: FYI, I agree they should get on and unionize. But that will be a multi-
year (maybe multi decade) process...

~~~
ben_w
The most recent U.K. Labour government _also_ reintroduced national minimum
wage, raised the zero-tax threshold, and passed the Human Rights Act and the
Freedom of Information Act.

I don’t like _everything_ they did, but they did do various things which
supported worker rights.

------
nimbius
Im with most of the tenets of the post, however its worth noting the US
Government and its member states tend to generally ignore the fourth amendment
unless you've got the cash to file a lawsuit.

[https://arstechnica.com/tech-policy/2020/02/removing-a-
gps-t...](https://arstechnica.com/tech-policy/2020/02/removing-a-gps-tracking-
device-from-your-car-isnt-theft-court-rules/)

[https://www.washingtonexaminer.com/michael-bloombergs-
stop-a...](https://www.washingtonexaminer.com/michael-bloombergs-stop-and-
frisk-violates-the-fourth-amendment)

[https://en.wikipedia.org/wiki/Border_search_exception](https://en.wikipedia.org/wiki/Border_search_exception)

[https://reason.com/2019/09/10/the-supreme-courts-next-big-
fo...](https://reason.com/2019/09/10/the-supreme-courts-next-big-fourth-
amendment-case/)

and lets not forget, the star of the 21st century...

[https://www.aclu.org/blog/national-security/privacy-and-
surv...](https://www.aclu.org/blog/national-security/privacy-and-
surveillance/nsa-continues-violate-americans-internet-privacy)

~~~
leggomylibro
It's incredible how far we've fallen; the border exception is particularly
terrible.

I was once driving along I-10, which is an 8-lane / 80mph interstate. CBP had
blockaded the entire road, and were pulling every single car and truck off to
be questioned and searched.

My truck had a canopy with heavily-tinted windows that could have easily fit a
few people, but I don't "look foreign", so they waved me through without even
glancing at my ID or vehicle. From the people who had been pulled off, it
looked like their job was to hassle people with brown skin.

I can't fathom how it isn't a violation of the Constitution to (ostensibly)
search every individual driving along a major highway. What ever happened to
'probabale cause'? Is living in the US considered evidence of committing a
crime in the US nowadays?

~~~
selimthegrim
Within 100 mi of a border it doesn’t apply

~~~
40four
I don't live near a border, I had never heard of this before, and I found a
nice description on the ACLU website.

[https://www.aclu.org/know-your-rights/border-
zone/](https://www.aclu.org/know-your-rights/border-zone/)

It appears the 4th amendment certainly still applies in the 100 mile zone, and
if it did not that would be _insane_. According to that page, 2/3 of the
population lives inside the 100 mile zone.

The CBP officers _do_ apparently have more leeway as far as detaining a person
roadside (see 'reasonable suspicion'), or boarding a bus/ train and the like,
but probable cause is still required to search a vehicle, or arrest a suspect.

 _" An immigration officer also cannot search you or your belongings without
either “probable cause” or your consent. If an agent asks you if they can
search your belongings, you have the right to say no."_

In the past, I have successfully denied an officers request to search my
vehicle at a routine traffic stop. He backed off immediately. It is easier
said than done, being stopped by law enforcement is always stressful. But
simply saying in a polite manner, 'No, sir. I prefer you didn't search the
vehicle', is one of our greatest tools the 4th amendments provides us.

Officers _WILL_ ask and try to gain consent if at all possible. I suspect that
most of the vehicles the other commenter saw being searched by the roaming
patrol, either did not know they _could_ say no, or did not have the nerve to
say no in a tense stressful situation.

------
tphyahoo2
Dear Thomas:

Thank you for writing to me to share your concerns about law enforcement
access to encrypted communications. I appreciate the time you took to write,
and I welcome the opportunity to respond.

I understand you are opposed to the “Eliminating Abusive and Rampant Neglect
of Interactive Technologies (EARN IT) Act of 2020” (S. 3398), which I
introduced with Senators Lindsey Graham (R-SC), Richard Blumenthal (D-CT), and
Josh Hawley (R-MO) on March 5, 2020. You may be interested to know that the
Senate Judiciary Committee—of which I am Ranking Member—held a hearing on the
“EARN IT Act” on March 11, 2020. If you would like to watch the full hearing
or read the testimonies given by the hearing witnesses, I encourage you to
visit the following website: [https://sen.gov/53RV](https://sen.gov/53RV).

The “EARN IT Act” would establish a National Commission on Online Sexual
Exploitation Prevention to recommend best practices for companies to identify
and report child sexual abuse material. Companies that implement these, or
substantially similar, best practices would not be liable for any child sexual
abuse materials that may still be found on their platforms. Companies that
fail to meet these requirements, or fail to take other reasonable measures,
would lose their liability protection.

Child abuse is one of the most heinous crimes, which is why I was deeply
disturbed by recent reporting by The New York Times about the nearly 70
million online photos and videos of child sexual abuse that were reported by
technology companies last year. It is a federal crime to possesses,
distribute, or produce pictures of sexually explicit conduct with minors, and
technology companies are required to report and remove these images on their
platforms. Media reports, however, make it clear that current federal
enforcement measures are insufficient and that we must do more to protect
children from sexual exploitation.

Please know that I believe we must strike an appropriate balance between
personal privacy and public safety. It is helpful for me to hear your
perspective on this issue, and I will be mindful of your opposition to the
“EARN IT Act” as the Senate continues to debate proposals to address child
sexual exploitation.

Once again, thank you for writing. Should you have any other questions or
comments, please call my Washington, D.C. office at (202) 224-3841 or visit my
website at feinstein.senate.gov. You can also follow me online at YouTube,
Facebook and Twitter, and you can sign up for my email newsletter at
feinstein.senate.gov/newsletter.

Best regards.

Sincerely yours,

    
    
      Dianne Feinstein
             United States Senator

~~~
ibeckermayer
"Please know that I believe we must strike an appropriate balance between
personal privacy and public safety."

Why do you believe that, Dianne? Do you disagree with the spirit of the Fourth
Amendment? Are invasions of personal privacy only justified by probable cause,
or is that not the case? What is your standard for the "appropriate balance"?

\----------

Is it even worth assuming sincerity with somebody like Feinstein? Child
pornography is a heinous crime, but not nearly as heinous as using child
pornography as a lever for industrial scale human rights abuses. Frauds and/or
useful idiots.

~~~
malandrew
What's more absurd is the assumption that they can stop child porn or sharing
of anything "subjective" in the sense that it's a bunch of bytes difficult to
distinguish from other bytes without manual filtering. You just can't automate
distinguishing between legitimate porn and child porn. Even if you could,
you'll just drive sharing of such content underground, while trampling all
over the personal rights of those doing nothing wrong.

If they really want to address child pornography as a problem, they would
treat it as a social ill/disease and go after the users instead of the
platform. The goal should be reform that minimizes recidivism because it makes
it easier to find those partaking in this content. At least with something
like Facebook, they have a shot at identifying those sharing such content.
Make it impossible to share on a widely used and understood service like
Facebook and people will migrate to platforms that are much much harder to
police.

------
LatteLazy
So what? If the supreme Court refuse to heard the case, like they have with
the Patriot Act and pretty much every similar case since Sept 11th, nothing
will stop it.

------
emilecantin
I like to see legislation as similar to computer code, where the "computer" is
society & the courts.

There are a lot of parallels: the actual laws that are passed often look like
diffs explained with words (insert this word here, remove this sentence, etc),
every concept has to be explicitely defined, and you have to think of all the
corner-cases otherwise you get unforeseen consequences, etc.

Unfortunately, most bodies of law have amassed a huge amount of technical
debt, and nobody seems interested in solving it.

The fact that most legislators are actually terrible coders doesn't help at
all either.

~~~
jacques_chester
This analogy is commonly drawn by programmers. Like many analogies it's
imperfect.

Law in the Common Law countries (the UK, US, Australia, Canada, NZ etc) has
two main sources: case law and legislation. They are both the law. Case law
derives its power from precedent, legislation from declaration. But they are
_both_ the law. Legislation read in isolation will not give you a correct
understanding of the law.

More specifically:

> _Unfortunately, most bodies of law have amassed a huge amount of technical
> debt, and nobody seems interested in solving it._

Reform acts are passed all the time, often consolidating caselaw, or
consolidating legislation, or both. Just as often there's a process of
cleaning up the attic and finding old legislation that needs to be repealed.
Where I studied law, the _Law of Property Act 2000 (NT)_ included repeals for
Acts going back as far as 1266[0].

But a legislature has limited bandwidth. Within this bandwidth there is a fat
tail distribution of attention. Contentious issues frequently absorb
legislative time and effort out of proportion to their size or complexity.
This is not a matter of legislation-as-code, this is a matter of the economics
of public choice and bargaining.

> _The fact that most legislators are actually terrible coders doesn 't help
> at all either._

Legislation is typically drafted by professional drafters working for the
legislature. Some comes from "model acts" provided by lobbyists, these too
drafted by professionals. Drafting legislation is as hard or harder than
coding. There are no debugging tools, no test suites, everything is done live
in production with potentially unlimited consequences. Those drafters work
with _immense_ care and often under absurd deadlines.

[0]
[http://classic.austlii.edu.au/au/legis/nt/consol_act/lopa200...](http://classic.austlii.edu.au/au/legis/nt/consol_act/lopa2000198/sch4.html)

~~~
mywittyname
The court system is the team that applies patches or updates the configuration
for the Society OS.

~~~
jacques_chester
"Yes, but no", as analogies are.

It varies according to the case. Whether courts _create_ law or whether they
merely _discover_ law is a matter of serious scholarly debate. Patching or
reconfiguring is closer to creation and legislatures jealously guard that
privilege. Courts must apply the implications of existing laws applied to
novel circumstances. Code can crash, but a court must _always_ provide an
answer, even if that answer is "you have wasted the court's time".

------
zerocrates
It's the EFF's job to advocate for a strong position on this kind of stuff,
but it's a little hard to square those strong 4th Amendment claims with the
existence of the third party doctrine.

~~~
ncallaway
Let's say a service builds a system with end-to-end encryption, such that the
service provider itself is unable to decrypt and read any messages sent using
the service.

How would the third party doctrine apply to that scenario? I haven't
voluntarily given any decrypted information to the service provider. Instead,
I specifically _avoided_ voluntarily giving them that information.

So, at least in the context that the EARN IT act may threaten end-to-end
encryption (or may attach significant civil liability to adopting end-to-end
encryption) I'm not sure I understand how the third party doctrine applies.
Can you expand on that?

~~~
zerocrates
The trouble is that the argument isn't that pressuring providers to eliminate
end to end encryption itself violates the 4th Amendment, but that, in the new
scheme required under EARN IT, that when a provider _does_ scan your
information, _that_ will violate the 4th Amendment.

So at the time this argument applies, you _have_ provided them readable
information and the doctrine would apply.

To be fairer to EFF in the light of the morning, their argument actually does
account for the third-party doctrine: it instead rests on the theory that
courts would find EARN IT so coercive that the service providers should be
effectively treated as an arm of the state. I take a pretty dim view of the
likelihood of such an argument's success, but it's a game attempt.

The 1st Amendment case is probably stronger, especially given the tendency
toward maximalism in that area by the Supreme Court lately... but I wouldn't
call it _very_ strong. Defeating this politically is a much better bet.

~~~
salawat
This only holds water actually if you accept a program run on someone's
computer is not 'theirs'.

I.e. it going into an encryption routine as part of the software package does
not constitute me accepting the service provider's access to meta information
about the transaction or to the contents of the original stream.

That's like saying putting something in a Post Office envelope/box is to
accept that the post office can open and inspect it will. Which is patently
ridiculous.

The legal system needs to come to terms with the fact that the usage of a
program to transfer or transform information to the ends of achieving
communication is in and of itself A) an act of speech, and B) qualifies as
letters, papers, etc on light of the 4th Amendment. Further, the Court needs
to do a better job at holding companies to account for informing when their
tools are built in such a way that Third Party Doctrine applies. Furthermore,
the implementation of that communication that Third Party Doctrine applies of
should not be tolerated if it turns into some traditional template document
that everyone tucks into something no one is going to read if we really care
about civil rights at all.

It's worthy of ridicule the way we've let legal doublespeak undermine our
fundamental civil rights.

~~~
zerocrates
The trouble is that there's already a significant amount of precedent here
holding that the Constitution _doesn 't_ treat this kind of information
passing through intermediaries the same as letters through the mail. Congress
had to pass the Stored Communications Act to provide any sort of halfway-
reasonable protections for email stored on third-party servers, for example.
And it can be pretty _un_ -reasonable itself.

Encryption changes things substantially, at least for practical purposes, but
the whole idea of EARN IT is to coerce services to disincentivize the kind of
encryption that would matter.

The Court has made some baby steps in the direction of fixing the more "core"
deficiencies of the 4th Amendment's protections given the realities of the
modern world, but they're not showing any signs of rushing to go further.

------
CriticalCathed
So do a lot of things our government does. I am glad that my monthly donation
to the EFF at the very least is being used to push back.

------
duncan_bayne
It's funny (to me) that people are surprised that Feinstein is so willing to
trample over Constitutional protections while blithely ignoring the objections
of the citizens she (in theory) represents.

For _years_ , this has been her approach to the 2nd amendment, and to be
honest, most geeks have either remained silent, or applauded her actions.

 _Now_ she's coming for the 4th amendment, and geeks are up in arms (humour
intentional).

~~~
AdrianB1
Many people believe the second amendment is wrong and it does not require
protection, but they still care about the 4th. The only thing I always think
about when I see this:
[https://en.wikipedia.org/wiki/First_they_came_..](https://en.wikipedia.org/wiki/First_they_came_..).

~~~
tialaramex
The Second Amendment was probably a bad idea when it was written. Its
proponents made a bunch of assumptions that look laughable in hindsight. Today
in the hands of a Supreme Court increasingly disconnected from reality it's
interpreted as an excuse to let people who clearly shouldn't have guns at all
have as many guns as they can buy.

"First they came..." is about _people_ not about ice cream flavors, or video
games or constitutional amendments. Changing laws is a normal function of
society. It is an anomaly (and a grave defect) that the US has become unable
to even think of changing these particular laws, to the point where many of
its people enshrine them as holy principles rather than recognising they are
just laws of men.

It has been forever since America had judges brave enough to argue that
something can't be lawful because it is evil, and so the EFF is obliged to
frame things as "unconstitutional" instead. In a way that's America's legacy,
the observation that slavery was evil pre-dates its founding as a country
built on slavery, so it has always been necessary to its function to pretend
that it's somehow important to allow evil if it's legal. In such an
environment any potential judge with strong moral character could only be
discouraged.

~~~
david_w
How do you propose the People should resist a despotic government. Supposing,
as we must, the government literally becomes tyrannical, how do propose people
resist it at that point?

That is the whole reason we have a 2nd Amendment. That's what it's _about_.

We went in with _everything_ to Iraq and Afghanistan and did we subdue them?
No. Why not? Because they had guns, and with guns, they acquired further
weaponery to fight us; No other reason.

So you remove all the guns from "people who shouldn't have them" and how do
you propose people should resist a tyrannical government?

Serious question, I am not mocking you.

~~~
mrguyorama
If the people were ever willing to use those guns to resist a despotic
government, then why do we essentially have one now?

~~~
AdrianB1
Because the easy way to rule over people is to convince them it's a good
thing, not to force them. If you find enough people to agree with you and to
vote, they will vote ever worse (the worst:
[https://en.wikipedia.org/wiki/Adolf_Hitler%27s_rise_to_power](https://en.wikipedia.org/wiki/Adolf_Hitler%27s_rise_to_power))

~~~
david_w
Please, move to America... and bring all your friends.

------
nikanj
Would a republican-heavy Supreme Court agree?

~~~
SamReidHughes
If the ruling voting to overturn on these grounds were 6-3 I'd guess it was 4
repubs, plus Soto and RGB. If it were 8-1 I'd guess it was 4 repubs + 4 dems,
with Thomas dissenting. Edit: Well, nah, it'd be some breakdown with
concurrences in part.

~~~
rudiv
Haha, RGB. 'The Notorious RGB' sounds like something people in the printing
industry say.

------
frankzen
What is it about weak encryption that has these politicians convinced that
using it won't lead to higher incidents of hacking and identity theft? We're
already dealing with one blow to our economy, should we bracing for a second?

------
fmakunbound
It's amazing what you can get done in the name of saving the children.

~~~
snarf21
Fear-mongering is strong. Look at all the freedoms we lost after 9/11\.
Pedophiles and terrorists and porn are always the scapegoats.

------
david_w
Like the EFF cares about free speech. Like they have showed up even once to
campuses across the nation to defend the Constitutional rights of their
ideological opponents.

Everyone knows the EFF and the ACLU are thinly camoflaged shells of their
former selves, tactically pushing for whatever will advance their quest for
power. Yeah, we know that if we want help defending our Constitutional rights,
we go to non-psychopathic organzations like FIRE and Judical Watch and Project
Veritas.

They defend strong encryption because it's a tool their side still needs, for
now. Defending the Constitution and free speech is just a temporary tactic for
them until they get more power, the sort of power they now wield openly on
campuses across this nation and which you use to silence anyone who disagrees
with them.

After that, they'll start talking about how old the Constitution is, how its
from another, quainter time, and how it needs now to be put aside.... and how
important it is the government oversee people's speech lest someone utter
hatespeak .....and consequently we must ban strong encryption.

Or, in their own words: [https://www.eff.org/pages/speaking-freely-sandra-
ordonez](https://www.eff.org/pages/speaking-freely-sandra-ordonez)

~~~
KarlKemp
The EFF didn’t change. You just went off the deep end. They don’t care about
your pet issue of alt-right 4chan stars not getting rooms at universities
because there just is no right to get meeting space at public universities.

(And what a surprise that what bothers you most is the EFF supporting a woman)

~~~
fennecfoxen
I'm not sure whether the EFF changed, but the ACLU certainly has.

Once upon a time, the ACLU believed so deeply in the First Amendment that they
fought _National Socialist Party of America v. Village of Skokie_ all the way
to the supreme court. You may remember the plaintiffs from the Blues Brothers
movie, perhaps? The Illinois Nazis? Skokie, the town, was deliberately chosen
because it had a large Jewish population, and many Holocaust survivors, yet
the ACLU went to court to fight for these bona fide Nazis, and won them the
right to wear their Nazi uniforms and their swastikas when they marched,
carrying their hypocritical signs about "white free speech."

Can you imagine the ACLU doing that today?

~~~
david_w
The former President of the ACLU has decride the current positions taken by
the ACLU. I believe she wrote a book on it.

I actually remember the Skokie march. We were kids. I loved the ACLU and so
did everyone else I knew. They were like Free Speech super-heros. They were an
institution, a force, feared and respected.

Now, yeah, well....

