The EARN IT Act (S. 3538) is proposed legislation first introduced in 2020 in the United States Congress. It aims to amend Section 230 of the Communications Act of 1934, which allows operators of websites to remove user-posted content that they deem inappropriate, and provides them with immunity from civil lawsuits related to such posting. Section 230 is the only surviving portion of the Communications Decency Act, passed in 1996.
A number of events in the 2010s led lawmakers to question the legal freedom that website operators have, and among other legislation options, the EARN IT Act was proposed to alter Section 230's protections and put more responsibility on website operators. While it initially failed to pass in 2020, it was reintroduced in 2022 and for a third time in 2023.
Background
Section 230 was introduced as an amendment with the 1996 Communications Decency Act (CDA) that sought to amend the Communications Act of 1934. Section 230 was introduced by Senators Christopher Cox and Ron Wyden after seeing news of a pair of lawsuits, Cubby, Inc. v. CompuServe Inc. and Stratton Oakmont, Inc. v. Prodigy Services Co., which ruled very differently for two interactive computer services on the matter of their liability for user content solely because Prodigy moderated its content and CompuServe did not. The intent of Section 230 was to provide the same metaphor that ISPs were simply distributors of materials like booksellers, rather than publishers, and thus should not be responsible for the content they distribute for fear of creating a chilling effect on free speech.
Section 230 contained two primary clauses that apply to any "interactive computer service" such as a website, an ISP, or similar content provider. Section 230(c)(1) states simply that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Section 230(c)(2) is considered the "Good Samaritan clause," that as long as any service provider or user finds any content "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable", constitutionally protected or otherwise, they may take actions in good faith to restrict said content.
The CDA passed and was signed into law, but it was immediately challenged in the court system under Reno v. American Civil Liberties Union. The case concluded in 1997, ruling that all of the CDA excluding Section 230 was unconstitutional.
Section 230 itself was challenged in other cases, but case law established its constitutionality, primarily with Zeran v. America Online, Inc. in 1997, in which the Fourth Circuit stated that Congress had recognized the threat of tort-based challenges to the growing Internet and properly provided the liability protections that ISPs needed to sustain operations. Since then, Section 230 has generally survived all subsequent legal challenges, and the ability for the Internet to grow at a great pace has been attributed to it. Congress has passed one law that has impacted Section 230, the FOSTA-SESTA Act in 2018 that specifically removed liability protection from services that did not take actions against users knowingly involved in sex exploitation of children or sex trafficking.
Events leading to EARN IT
The 2016 United States presidential election drew concerns about possible Russian interference in the elections. In the wake of various allegations, the U.S. government, then with a Republican leadership, started questioning the role of the Big Tech companies—Google, Apple, Microsoft, and Facebook—as well as other social media sites like Twitter in moderating content. They faced increased pressure to address misinformation, hate, and violent content on their sites. Social media sites took steps to moderate content and, under their Section 230 allowance, blocked accounts they had deemed to violate their terms of service, most of which had come out of alt- and far-right groups. This led Republican lawmakers to claim that these sites were using Section 230 immunity to create a bias. Senator Ted Cruz argued that section 230 should only apply to providers that are politically "neutral", suggesting that a provider "should be considered to be a liable 'publisher or speaker' of user content if they pick and choose what gets published or spoke." Senator Josh Hawley alleged that Section 230 immunity was a "sweetheart deal between big tech and big government".