Graham-Blumenthal Bill: Farewell to Anonymity

Last Updated: March 20, 2020
Muhammad Hamza Shahid

Muhammad Hamza Shahid

With most of the population in quarantine, a group of Senators is in the midst of passing a law that will change online privacy forever. By the time the COVID-19 hysteria dies, users online may find their right to digital anonymity criminalized.

For most people, early 2020 will forever go down as the time in their lives when the entire world was busy dealing with COVID-19. The deadly virus has ravaged the entire globe, putting metropolitans in quarantine, effectively shutting down the entire world’s tourism industry, brought airlines to their knees…and provided the perfect distraction.

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Noam Chomsky once wrote that the powers that be are always in anticipation of such events. The simple reason is that it sets the ground for them to pass legislation that would otherwise cause riots on the streets. Today, just so it happens, half the world’s population is either in quarantine or lockdown.

What Is the Graham-Blumenthal Bill?

Privy to the world’s attention focused elsewhere, certain individuals in hallways of power are about to pass a piece of legislation that will forever change how users interact and communicate online. While the repercussions of Coronavirus continue to hog headlines 24/7, Senate Judiciary Committee Chairman Lindsey Graham, Senators Richard Blumenthal, Josh Howley, and Ranking Member Dianne Feinstein have introduced the EARN IT Act.

The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act (EARN IT Act) is billed as the definitive law that aims to curb online child pornography and harassment. While readers may feel this sounds like a noble plan, there’s just one catch. It proposes to achieve this goal by eliminating the most vital aspect of digital anonymity i.e. encryption.

Attacks on Privacy Are Nothing New

The legislation marks the most blatant attack on free speech and anonymity since 1993 when the Clinton Administration proposed the installation of “clipper chips” in electronic devices. Borrowing a page straight from the KGB’s playbook, it would have allowed the US government to engage in mass surveillance and eavesdrop on its entire population.

This same legislation (that never passed) gave birth to the program that eventually led to the creation of the NSA’s techniques later exposed by Edward Snowden. In the years after that, officials ranging from Attorney General William Barr as well as NSA Director Keith Alexander have claimed that tougher laws are needed to sharpen the law enforcement agency’s capabilities in combating online child exploitation.

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This isn’t also the first time Senators Lindsey Graham and Richard Blumenthal have come together to impede citizens’ right to freedom. In the aftermath of the shooting in El Paso and Dayton, they proposed a set of “Red Flag” laws that introduce tougher restrictions on online gun purchases.

With the dot com boom of the late 1990s, the internet became a festering lair for all kinds of trafficking rings. The early days of the 2000s Internet were highly regularized, making it next to impossible for agencies to keep track of everything going on.

Brave New World, Brave New Rules?

The surge in the popularity of Facebook, Twitter, and YouTube meant that these platforms began to be used almost as exhibition halls with images and videos of minors being spread like wildfire. Just as recent as 2019, it became known that Instagram had been used actively and openly to exchange child pornography through MEGA and Dropbox links.

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While federal action was promised, the issue remained largely on the back burner for the good part of the year. However, in early January, around the same time that COVID-19 was starting to raise alarms all across the world, an early draft for the proposed Graham-Blumenthal Bill was submitted in the house.

Rather ominously, there was a visible lack of coverage for something so seismic. The bill proposes a series of laws and legislation to be passed both at state and federal levels that would curb strong encryption for use on either the provider or the client’s end. Stanford Law School’s blog critically evaluated the bill and called it the biggest attack on the digital right to security online in recent memory.

Law That Violates Another Law

Laws of this nature have typically come under heat in the past for the nefarious underlying implications they come with. The EARN IT Act, for instance, singles out encryption as the biggest weapon in the child trafficking circle’s arsenal. The exact details of the bill and how it would come into effect are still unclear. However, it identifies some exact methods that would strip users of the bulk of their safety online. Top of the agenda is stripping some of the protections that Section 230 of the Communications Decency Act provides. The section stipulates

…all users have the right to protect their digital identity online…

The bill is a classic case of bait-and-switch, with Senator Lindsey Graham claiming that it was the government’s first real instance of holding big tech responsible for its inactive and lukewarm attitude towards hate-speech and exploitation through their platforms.

Does The Law Really Address the Problem?

This mirrors the sentiment expressed by several NGOs such as the National Center for Missing and Exploited Children as well as the National Center on Sexual Exploitation. These groups appear oblivious to the fact that curbing child trafficking is merely a cloaking device. The fact of the matter is that for years, organized gangs have been operating out in the open and there have been exactly zero steps taken against them.

Instagram still hasn’t launched an investigation into how such groups were able to use the platforms so blatantly for years. Furthermore, there is no evidence that eliminating end-to-end encryption will not cause these gangs to simply revert to communication via the dark web.

Even if there was the slimmest chance of reducing these nefarious activities, such a law will undoubtedly end up causing way too much harm than good in the long run.

To make matters worse, the bill does not specify exactly how it would deal with information on individuals and groups found guilty of these crimes. It mentions explicitly that the main target of this legislation is to severely restrict the implementation of end-to-end encryption. It also leaves a significant number of loopholes that will eventually end up being used as backdoors, letting law enforcement agencies to access private conversations.

Has There Been Any Opposition to The Bill?

Yes, there has been an unprecedented scale of lobbying that has been going on behind the scenes and away from Capitol Hill. The Internet Association, the tech trade group that acts as Silicon Valley’s de facto union, has expressed “very strong concerns” that the bill aims to “impede existing industry efforts” against online child exploitation.

Similarly, there has been a concurrent yet completely separate initiative taken by the Department of Justice (DoJ) that has had the backing of tech companies, such as Facebook and Google. This separate but completely voluntary program has a series of guidelines on what tech companies can do to confront the challenge of online abuse of children.

The main difference between the two proposals is that one is a series of recommendations that take the apprehensions of the main stakeholders into account. The other one is an authoritarian law that seems to have been taken straight out of 1984’s handbook.

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While there are valid critiques of encryption such as the fact that it makes life extremely difficult for law enforcement agencies when dealing with these crimes, the answer lies somewhere in better screening methods rather than eliminating encryption. Tech experts and privacy advocates have long argued that there would be nothing better than such a law that would pave way for all kinds of bad actors to put users in further risk.

While the world continues to deal with the corona epidemic, it is important to keep an eye on everything else that is transpiring in the world. If we continue to remain oblivious to all these developments, billions of users worldwide may find their online privacy gone by the time this epidemic is over or worse, criminalized.

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