The NDAA is No Place for Sweeping Internet Legislation Like the STOP CSAM Act

By Jason Kelley and Sophia Cope

The STOP CSAM Act of 2023 would undermine services offering end-to-end encryption and push internet companies to take down lawful user speech. This dangerous bill would threaten security and free speech on the internet—but incredibly, it may pass Congress without even being seriously debated.  Some lawmakers are seeking to attach this dangerous proposal to the National Defense Authorization Act (NDAA), the “must-pass” military budget bill.

As we’ve written before, the STOP CSAM Act would create new criminal and civil claims against online providers based on broad terms and low standards, and will undermine digital security for all internet users. It does three main things:

• It makes it a crime for providers to “knowingly host or store” CSAM or “knowingly promote or facilitate” the sexual exploitation of children, including the creation of CSAM, on their platforms.
• It creates a new civil claim and corresponding Section 230 carveout based on the lower standard of “recklessness”.
• It creates a notice-and-takedown system overseen by a newly created Child Online Protection Board.

Taken together, these provisions greatly endanger encrypted communications and protections that ensure platforms can operate. It harms internet users who rely on intermediaries to speak online—that is, all of us.

Providing Encryption Isn’t a Crime

This bill introduces the same misleading “encryption exception” found in the EARN IT Act, which we’ve written about at length. The exception purports to protect online platforms from liability for offering encrypted services, but it specifically allows the use of encryption to be introduced as evidence of the facilitation of illegal material.

If encryption can be introduced as evidence of the facilitation of illegal material, the bill potentially allows people to be sued or prosecuted for even merely providing an encrypted app. It’s likely that plaintiffs will argue that companies merely offering end-to-end encryption are “recklessly” enabling the sharing of illegal content on their platforms by failing to scan for and remove that content.

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Though the bill specifies that a platform must have “knowledge” of the illegal content in order to be criminally liable, and that it is a defense that the company cannot remove it (such as when it is encrypted content uploaded by a user without the providers’ knowledge), the question remains why this new crime is needed when it is already a federal crime for anyone to promote or distribute CSAM. Existing law already requires online service providers who have actual knowledge of “apparent” CSAM on their platforms to report that content to the National Center for Missing and Exploited Children (NCMEC), which is essentially a government entity.

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Bad Actors Will Push Online Services to Censor Legal Speech

The STOP CSAM Act  also poses significant threats to free speech online.

Section 230 creates the legal breathing room for internet intermediaries to create online spaces for people to freely communicate around the world, with low barriers to entry. This law would create a new exception to Section 230’s partial immunity, exposing providers to more lawsuits.

The bill also creates a convoluted notice-and-takedown regime that allows individuals to file complaints against companies to remove alleged CSAM from their platforms. This system would certainly be gamed by bad actors, exposing platforms and users to bogus takedown requests, likely involving First Amendment-protected content involving sexuality, sexual orientation, or gender identity.

To mitigate the risk of new civil lawsuits and administrative proceedings, platforms would censor more and more user content and accounts, with minimal regard as to whether that content is in fact legal.

If elected lawmakers want to limit our free speech, they should just admit it and debate the issue. Instead, they’re hiding the ball. It’s outrageous to include a law that would have such a huge impact on speech in must-pass legislation without full discussion. Please join us in telling Congress not to pass the STOP CSAM Act.

Source: EFF

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