Flood of Section 230 Proposals Threatens Encryption and the Fight Against Voter Suppression
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In recent months, proposals to amend Section 230 have come fast and furious in the U.S. Congress and from the Administration, taking aim at different elements of the law that shields intermediaries from liability for hosting user-generated content.
In the House, Reps. Wagner and Garcia introduced the companion bill to the EARN IT Act, first proposed by Senators Graham and Blumenthal. As we explained in July, the EARN IT Act remains fundamentally flawed and threatens individuals' free expression, privacy, and access to encrypted technologies. The House version goes even farther to emphasize that, when intermediaries provide end-to-end encryption services, they should expect that fact to be used against them in lawsuits over user-generated content. In the Senate, Senator Graham rushed to push his "Online Content Policy Modernization Act" through the Judiciary Committee. CDT led a coalition of civil rights and civil liberties organizations in warning the Committee that the bill would threaten the fight against online voter suppression by making it riskier for social media services to fact-check and take down election misinformation.
Other proposals that would make it more difficult to fact-check and remove misinformation are everywhere: in the NTIA's petition to the FCC for rulemaking on Section 230, in the legislation proposed by the White House and DOJ to amend Section 230, and in several other bills in Congress. CDT's opposition to the NTIA's petition underscored the jurisdictional and constitutional barriers to the actions the petition seeks.
As CDT noted in response to President Trump's recent tweet calling for the repeal of Section 230, these efforts are attempts to reinforce the unconstitutional chilling effect of the President's social media Executive Order, which CDT challenged in June. It is crucial that social media companies continue to fight election disinformation, and that the intermediary liability framework in the U.S. enables them to do so.
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In Case You Missed It
We are excited to announce that Iverna McGowan has joined CDT as the new Director of CDT's Europe Office. With an impressive track record and commitment to protecting civil liberties, human rights, and democractic values, she is a wonderful addition to the team. You can read more about Iverna and CDTEU here, and keep up with the team's work via our EU Newsletter.
Student privacy and equity are at the forefront of many minds in this unusual school year. CDT went straight to the source, surveying parents' views on the use and implications of educational technology, and concerns about their children's digital privacy. The research is available here, with more to come on parent, teacher, and student knowledge, perceptions, and concerns about student digital safety. You can keep up with CDT's student privacy work by subscribing to our new Student Privacy Newsletter.
This week, the House Judiciary Committee released a report on its more than year-long investigation into competition policy and big tech. The report makes some legislative proposals, which will be a roadmap for the next Congress. CDT's antitrust expert Avery Gardiner recently outlined what to look for in that section of the Committee's report.
In a judgment sought by President Trump's campaign, the Supreme Court of Pennsylvania ruled that completed mail-in ballots returned without being enclosed in secrecy envelopes - termed "naked ballots" - must be disqualified. The ruling could lead to the invalidation of potentially tens of thousands of ballots in Pennsylvania. More from CDT on the context and effects of the decision is available here.
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CDT in the PressMichelle Richardson, Director of CDT's Privacy & Data Project, was quoted in a Marie Claire piece about data collection and sale by period tracker apps: "Everything I put into my period-tracking app is fair game to be sold," she told the magazine.
Stan Adams, CDT's Deputy General Counsel and Open Internet Counsel, talked to CoinDesk about a pending U.S. Supreme Court case, Van Buren v. United States, that rests on how the Court interprets the overboard 1986 Computer Fraud and Abuse Act (CFAA): "Vague laws like the CFAA can kill security research... Security by obscurity is not the way forward. The CFAA is a pretty heavy hammer to wield."
Discussing the future of Section 230, Director of CDT's Free Expression Project Emma Llansó told the Daily Dot that the controversial law has "unfortunately, become a political shorthand for a whole host of different, often contradictory, ideas of how to rein in big tech and address various issues with the online information economy."
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CDT "in Person"Tech Prom is the night CDTers look forward to all year, but due to the COVID-19 pandemic, we held this year's 25th anniversary event virtually. That by no means limited the fun, with current and former leaders from government, academia, foundations, civil society organizations, and the corporate sector coming together to discuss the most pressing issues in tech policy. The event featured remarks from CDT President & CEO Alexandra Givens, Ford Foundation President Darren Walker, and U.S. Senator Ron Wyden. More details about the evening's festivities are available here.
In late September, CDT held an online research workshop focused on disinformation and its effects in terms of race and gender. Featuring a multi-disciplinary set of over 30 experts in public policy, political science, gender studies, and technologists among others, the workshop addressed the need for interdisciplinary research and policy-solutions to combat disinformation. A public report is in progress; you can read more about the workshop here.
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CDT is a nonprofit organization, with our work made possible by a variety of supporters. Many potential donors evaluate organizations using sources like the charity rating organization GreatNonprofits. If you value CDT's work, we hope you'll share your thoughts this week on the GreatNonprofits website. Their comment period ends October 31st. This small step can help bring more supporters to CDT, enabling us to continue to put democracy and individual rights at the center of the digital revolution.
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Staff Spotlight
Avery Gardiner, General Counsel and Senior Fellow for Competition, Data, and Power
How long have you been working in digital rights? I've spent my career working on competition law issues, sometimes for big companies, sometimes for DOJ, sometimes for individual tech companies, and most recently, for CDT. Users' digital rights have been part of my legal career for 20 years. If we can't be who we are and want to be online, what's the use of the internet?
What is your proudest moment while here at CDT? We sued the President within a few days of his issuance of an illegal, unconstitutional, and un-American executive order restricting speech, just as I took over the General Counsel role. That was exciting, and I'm proud of our work to protect the free speech rights of all Americans. We worked fast, and we were right.
What is the best book you have read recently? Hamnet, by Maggie O'Farrell, which my book club read in September. It is a female-centric view of Shakespeare's family in England during the Plague. Beautifully written and with overtones that resonate during today's pandemic. When reading it, try to simultaneously think about the humanity it displays and the Shakespeare plays it evokes.
What is the most recent cultural activity you've been to? My most successful New Year's resolution in the last five years was to pledge to attend a cultural event at least once per month. Living in Washington, D.C. makes that easy, or at least it did pre-pandemic. I took my kids to the new Hirshhorn sculpture garden a few weeks ago. But that was only marginally successful, during these strange times. Instead, I nominate hiking on Sugarloaf Mountain, standing at the white rocks overlook with lots of fellow hikers, at an appropriate distance, all marveling at our luck and enjoying our ham and cheese sandwiches.
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