Senate Judiciary vote adds momentum to attack on tech's legal shield

The Senate Judiciary Committee unanimously voted Thursday to remove liability protections for online businesses that host child porn, advancing a measure that poses the most significant threat in years to the tech industry’s fiercely guarded legal shield.

And a House companion version is coming soon, Senate co-sponsor Richard Blumenthal (D-Conn.) said afterward — indicating that the drive to roll back Silicon Valley's prized liability safeguards is gaining bipartisan momentum.

The legislative action comes as the same legal protections are facing a broad attack from the Trump administration.

How the vote went down: The committee approved a revamped version of the EARN IT Act by a 22-0 vote. The panel also approved an amendment by Chair Lindsey Graham (R-S.C.) that could defuse attempts to portray the bill as an attack on encryption.

Under the bill's original version, digital companies that wanted to keep their legal protections for a broad swath of user-generated content would have had to prove to a newly crafted commission that they are doing enough to curb child abuse material. But Graham amendment's would narrow that legal shield, simply removing all protections from federal and state civil lawsuits for hosting child porn. Under the revamped framework, the commission would still craft voluntary guidelines for companies to follow.

Tech industry officials and some advocacy groups opposed the original measure, which they feared could empower regulators on the proposed commission, including Attorney General William Barr, to force companies to open up users’ encrypted communications to law enforcement. Barr has condemned the availability of virtually unbreakable encryption on products like Apple's iPhones, accusing them of impeding investigations into crimes like terrorism and human trafficking. But some lawmakers have defended encryption as essential to protecting personal privacy.

Graham said Thursday that the encryption debate is “a separate issue,” adding, “My goal is not to outlaw encryption.”

The committee also unanimously approved an amendment by Sen. Patrick Leahy (D-Vt.) intended to "exclude encryption" as something that could lead to "increased liability" for companies.

Sens. Chris Coons (D-Del.) and Mike Lee (R-Utah) unveiled separate amendments for the legislation on Wednesday, but said at Thursday’s session they were pulling them from consideration for the time being. Lee said he reserved the right to seek to “amend the language on the floor.”

A major threat for tech: The measure poses the biggest threat to the tech industry’s legal liability shield, Section 230 of the Communications Decency Act of 1996, since passage of the landmark 2018 sex trafficking law known as FOSTA-SESTA. It’s the first bipartisan bill seeking to pare back those protections to advance out of a congressional committee since that law.

The bill is far less sweeping than the changes demanded by President Donald Trump, who has urged Congress to revoke Section 230 entirely while ordering his regulators to look for ways to restrict its protections. But its bipartisan support indicates that the bill stands a significant chance of becoming law.

Section 230 protects online sites from suits over material their users post, a safeguard that has made it easier for tech giants like Facebook and Google, plus smaller players like Yelp, Tripadvisor and Pinterest, to profit by hosting ordinary people's posts, photos, videos, product reviews and other content. But what was once seen as an essential safe harbor for a fledgling internet industry is facing scrutiny like never before.

Blumenthal said at Thursday’s hearing that it’s past time to revisit those protections. “There is no reason for these platforms to have blanket immunity, a shield against any accountability that is not enjoyed by any other industry in the same way,” he said in his opening remarks.

"Stripping liability to make sure they do a better job of protecting children from sexual exploitation and the scourge of child pornography is a giant step forward in change," Graham told POLITICO on Thursday after the session.

What’s next: Blumenthal said after the markup session that the unanimous committee vote on the bill is a "strong sign of momentum and support," and both he and Graham said they hope to see the legislation taken up by the full chamber this year.

"We'll be talking to the majority leader about scheduling a vote," Blumenthal told POLITICO during an interview on Capitol Hill.

"I think I'll be doing that this afternoon," Graham said of speaking to Majority Leader Mitch McConnell about getting a vote on EARN IT scheduled.