After a month of unprecedented protests against police brutality across the country, in which encrypted communications have been essential for organizers and protesters to communicate safely, the Senate Judiciary Committee plans to take up a bill that will strike at the heart of encrypted communications and undermine free expression on the internet. The Eliminating Abusive and Rampant Neglect of Interactive Technologies Act of 2020 (EARN IT Act) amends an existing federal law to force online platforms into changing how they moderate content online by scanning and censoring more of their users’ communications.

In addition to the harms against protesters, the EARN IT Act — like SESTA/FOSTA, which amended the same provision a few years ago — threatens our online speech and privacy rights in ways that will disproportionately harm LGBTQ people, sex workers and others who use the internet to privately communicate and share information and resources. The Senate Judiciary Committee is getting ready to vote on it on Thursday, July 2. We sent a letter yesterday urging committee members to vote against this dangerous bill.

The EARN IT Act purports to require online platforms to “earn” certain protections from liability. Current federal law, through a provision known as Section 230 of the Communications Decency Act (CDA 230), generally shields platforms from legal liability for content provided by users, something that is foundational to modern online communications. The EARN IT Act conditions this shield on “voluntary” compliance with best practices to combat online child sexual exploitation and to limit children’s access to certain content through age gating and age rating practices, which are policies designed to keep youth from exposure to certain content.
Most troubling, the bill tasks an unelected commission with writing the best practices. The commission will not include representation from the LGBTQ, sex worker, or other marginalized communities. And to make matters worse, the bill provides the commission too much discretion to recommend policies that undermine strong encryption and free speech. For good measure, the bill stacks the deck to coerce platforms into certifying compliance with best practices and backs any false certifications with criminal penalties. In other words, the “voluntary” best practices are mandatory.

To be clear, child sexual exploitation is a serious problem that Congress should address. But this bill is not a solution. For one thing, the existing law does not protect platforms from liability for federal crimes like child sexual exploitation. Also, the bill does not at all tackle known deficiencies in our response to this problem. For instance, it provides no assistance for prevention programs and makes no attempt to address the root causes of the problem. Rather than provide measured solutions that would protect children, the EARN IT Act instead needlessly threatens our privacy and online speech rights.

Attorney General William Barr, who will head the commission that writes the best practices and have near veto power over them, has identified strong encryption as one of the primary bars to effective law enforcement. Thus, it is particularly concerning that the EARN IT Act provides broad latitude for “best practices” that involve building vulnerabilities into encrypted communications — vulnerabilities like “back doors” for law enforcement that are really open doors for bad actors or mass scanning of private communications.

Any threat to encryption is a threat to the privacy and safety of every American, but particularly to the LGBTQ community, sex workers, and to other vulnerable and marginalized groups. Strong encryption can be vital to many in the LGBTQ community who rely on the internet to access a support network, seek resources to combat discrimination and abuse, and find doctors and treatment to assist with transition, HIV prevention, and other health concerns. Now, as many in our country take to the streets to demand racial justice, encryption is critical for organizing protests and ensuring the safety of protesters. Even more, when companies weaken encryption for U.S. consumers, they are poorly positioned to resist requests by foreign governments to apply the same standards to products abroad.  This can pose a particular threat to individuals abroad that live in countries that actively persecute and criminalize LBGTQ people. Encryption also safeguards domestic violence victims, allows journalists to communicate with confidential sources, and protects our military and national security in conflict zones.

The EARN IT Act, with its broad mandate and the authority it grants to an anti-encryption Attorney General, endangers the protection encryption offers.

That’s not the EARN It Act’s only problem. In addition to undermining encryption, the bill poses serious dangers to online free speech by requiring platforms to engage in broad content moderation practices or lose the protections from liability afforded to them by CDA 230. Congress has abrogated CDA 230’s liability shield only one other time. SESTA/FOSTA, introduced in 2018,eliminated 230’s protections for sex trafficking advertisements. That experience taught us two things. First, to avoid liability, online speech platforms will engage in broad content moderation and censorship. Entire web sites that provided forums for sex workers to connect, share critical health and safety information, and build community disappeared after SESTA/FOSTA. Google and other remote storage sites began to scan for sex-related content and remove it from their systems. Second, the censorship of sex-related speech will disproportionately harm the LGBTQ community.

Under the EARN IT Act, much like SESTA/FOSTA, best practices will not only apply to illegal child sexual exploitation. By requiring platforms to broadly monitor and censor speech to which children might be exposed online, the EARN IT Act’s commission may recommend best practices that disproportionately censor, among other things: sex education materials, online support systems and communities for youth who are transgender or non-binary, and all other youth who are in any way questioning their gender or sexual identity to communicate with each other and with community members, any sex-related speech, particularly the speech of sex workers and of those in the sex industry, and any communication or speech involving youth. Paradoxically, the best practices could harm children’s ability to engage fully and experience the tremendous benefits to education and enrichment the internet offers.

The bill’s sponsors want us and their fellow lawmakers to ignore all of that, though. They’re saying that their bill will hold powerful companies accountable for their failure to protect children from dangers on their services. The idea that big online platforms will risk liability rather than silencing our speech and undermining our privacy simply to avoid that liability risk is laughable, and we already know from experience with SESTA/FOSTA that they won’t. They will sacrifice our privacy and our ability to communicate freely to ensure their bottom line.

Child sexual exploitation online and anywhere else is a serious problem that deserves serious solutions. Congress should spend its time devising methods to properly safeguard children from child sexual exploitation, not undermining the privacy and speech rights of the LGBTQ community, protesters, and all of us.

Kate Ruane, Senior Legislative Counsel, ACLU

For well over a year, the U.S. government has held Adham Hassoun in a detention facility without trial, without criminal charge, and without end in sight. Today, a court ordered the government to release him and expressed contempt for the government’s frivolous and alarming legal position: “Distilled to its core, [the government’s] position is that [it] should be able to detain Mr. Hassoun indefinitely based on the executive branch’s say-so, and that decision is insulated from any meaningful review by the judiciary. The record in this case demonstrates firsthand the danger of adopting [the government’s] position. [The government’s] position cannot withstand constitutional scrutiny.”

The Court gave the government until July 2 at noon to seek an emergency appeal to block Mr. Hassoun’s long-awaited release, even as the Court told the government it didn’t have “a serious chance” of persuading a higher Court of its baseless arguments. Failing what would be an unwarranted intervention by an appellate court, Mr. Hassoun will finally be free from his illegal imprisonment.

“These government officials have gamed the courts to drag out my detention,” Adham said to the court. “Now they apparently want to drag it out for many more months in appeals while I stay in detention. All I want is for someone to recognize the truth and to set me free.”

Though the ruling is a victory for due process, Adham will never get back the nearly 17 months he’s already spent locked up on false pretenses. That Adham has been deprived of his liberty for this long is an alarming example of the government’s abuse of overbroad national security powers. 

The government claims it can indefinitely detain Adham based on a never-before-used provision in the 2001 Patriot Act that — it argues — lets the executive branch indefinitely detain someone it deems a “threat to national security.” The government also relied on an obscure immigration regulation which it said gave it sweeping powers of detention, and which the judge declared a “legal nullity” in December. In rejecting the government’s arguments, the Court warned that adopting the government’s position would give it a chillingly powerful weapon for imprisoning people without charge and without credible evidence.

Like many Muslim men in America, Adham became a subject of unfounded government suspicion in the years after 9/11. In 2007, he was convicted of violating a deeply problematic federal statute that allows prosecutors to charge people with “material support” for terrorism. In Adham’s case, that “material support” consisted of charitable aid to organizations supporting Muslims suffering in military conflicts abroad in the 1990s. After Adham served his criminal sentence, he was placed in immigration detention, where the government held him for several months. Once it couldn’t hold him under immigration law any longer, the government turned to the Patriot Act, dredging up a litany of false accusations to make it seem as though releasing Adham would endanger national security.

Adham filed a habeas petition to challenge his indefinite detention and vigorously denied the government’s allegations. In response, the government tried to block the court from even reviewing its contested evidence, arguing that the judicial branch had no authority to look into whether the government’s case against Adham was valid. The court rejected this argument and ordered an evidentiary hearing at which the government had to prove by clear and convincing evidence that Adham’s detention was justified.

Adham was eager to defend himself at his long-awaited day in court, which was originally scheduled for late April but delayed to June 24 due to COVID-19. And then — just days before the hearing — the government asked the court to cancel the hearing, conceding that it would not be able to meet the burden of clear and convincing evidence to prove Adham is a threat to national security. The government reasserted its objection to an evidentiary hearing in the first place and declined to put on a case, in a transparent attempt to avoid defending baseless allegations in court. Adham, knowing that the government has no case against him, agreed to the cancellation of the evidentiary hearing and asked the court to order his immediate release.

The government’s decision to back out of the evidentiary hearing followed a series of embarrassing revelations about its slipshod investigation — and the falsehoods at the heart of its case. For instance, after the court authorized discovery and Adham’s team began an independent investigation, it became clear that the government’s central allegations came from a single jailhouse informant named Shane Ramsundar. Ramsundar has a startling history of deception that includes defrauding fellow immigrants out of huge sums of money while posing as a federal agent. His allegations against Adham turned out to be recycled from previous allegations he’d made against other people in an effort to curry favor with immigration authorities and avoid deportation.

The government had this information all along, but never provided it to Adham’s lawyers, despite a legal obligation to do so. The government also concealed evidence that would have helped Adham and would have shown that its central allegations were false. When Adham’s team brought this malfeasance before the court, the government dropped Ramsundar as a witness, citing concerns about his credibility. The court is still considering Adham’s motion for sanctions against the government for failing to preserve and disclose critical evidence.

Amazingly, the government is still fighting to keep Adham locked up, even though its case has now been reduced to calling him a “radicalizing” influence for criticizing U.S. policies. The government says this precludes his release under any conditions of supervision. But criticizing this country, or any country, is not a legitimate justification for detention under any circumstances — let alone indefinite detention.

Adham’s case shows that habeas corpus remains a vital check on the executive’s detention power. It also shows how harmful and unwise it is for Congress to give the government the power to detain people based on claims of “dangerousness.” Such expansive power, long a hallmark of authoritarian regimes, leads to abuse, as this case powerfully demonstrates.

The government shouldn’t be able to imprison anyone indefinitely based on a pack of lies. Yet that’s exactly what it did — and is still trying to do — to Adham. The fight’s not over, and Adham’s life has been severely damaged by the government’s shameful conduct. But today’s court order is a welcome and important step toward his freedom and a victory for the rule of law.

Jonathan Hafetz, Senior Staff Attorney, ACLU Center for Democracy,
& Aly Panjwani, Legal Assistant, ACLU

As cases of COVID-19 in immigration detention facilities have exploded in recent months, Immigration and Customs Enforcement (ICE) has continued to argue that it has done all that it possibly can to manage this crisis. A new report by the Department of Homeland Security’s Office of Inspector General (OIG) — the department’s oversight body — however, sheds new light on ICE’s failure to do so, and the continued danger faced by detainees and detention staff alike.
 
Notably, the OIG’s report is based purely on surveys of ICE personnel themselves, without actual inspections of facilities or any interviews with detainees, as is typically expected for such investigations. But even with this limited set of self-reported data, the OIG’s report provides startling insight into ICE’s failure to control the spread of COVID-19 in detention — and the fears of ICE’s own personnel regarding their inability to address outbreaks in individual facilities.
 
Since the start of the pandemic, ICE has claimed in court filings that the low number or lack of confirmed COVID-19 cases in specific facilities suggests that the problem is under control in detention. But contrary to the logic of the Trump administration, less testing does not mean fewer cases, and the OIG’s report reveals for the first time the scope of ICE’s failure to provide adequate testing. Even with demonstrated under-testing of people in detention, almost 2,500 people in ICE detention have tested positive for COVID-19 since the start of the pandemic.
 
According to the OIG, 70 percent of all ICE detention centers nationwide reported that they had not tested any detained people for COVID-19. As of late May 2020, ICE had just over 2,000 testing kits available on-site at detention facilities, although ICE detained over 25,000 people. The report also notes that there is no consistent national standard or clear guidance for detention staff to decide whether to test a detainee for COVID-19. Even absent a consistent national standard, ICE also admitted that at least 20 detained people who met local protocols for testing failed to receive COVID-19 tests.
     
The OIG’s report also reveals ICE personnel’s own admission of the impossibility of controlling a COVID-19 outbreak at the facility, and the dire consequences that an outbreak would have. Detention facilities admitted that they lack adequate expertise, personnel, and equipment in case of a COVID-19 outbreak. As one ICE facility reported, “We do not have any medical staff. If any detainee tests positive for COVID-19 we will have to shut down the detention facility . . . we do not have the medical capacity to house anyone with COVID-19.”
 
Other ICE facilities noted the impossibility of having enough personal protective equipment needed in case of an outbreak: “If an outbreak were to occur the stock of [protective equipment, including masks] would be depleted. We have been attempting to acquire additional equipment for weeks, however as most are aware this is difficult given the high demand.”
 
ICE facilities also admitted their inability to practice social distancing in detention, or to adequately quarantine people suspected or confirmed to have COVID-19. “The nature of detention facilities makes social distancing impractical, as detainees are housed together in dorm-like pods, some with as many as 50 to 75 detainees in each pod. Additionally, most detention centers have few means to isolate large numbers of detainees.”
 
More than one-third of detention facilities reported not having enough hand sanitizer for detained people to use. More than half of facilities stated that they do not have the space to quarantine or isolate detained people who are suspected or confirmed to have COVID-19, and almost two-thirds of facilities had none, or less than two “negative pressure rooms” — medical rooms with closed ventilation systems to isolate airborne infections.
 
The danger of an outbreak is imminent: Since the start of the pandemic, three detained people and five guards have lost their lives to COVID-19, and an unknown number have become seriously ill and have been hospitalized due to the virus. Despite this threat, the OIG found that less than 20 percent of ICE’s detention facilities had released people to mitigate the danger of COVID-19. According to ICE data, facilities released only 1,137 detainees of the approximately 25,000 people in ICE custody from March 17 to May 5, 2020, due to reasons related to COVID-19.
 
The OIG reports that this is only the first stage of its investigation of ICE’s efforts to prevent and mitigate the spread of COVID-19 in its facilities, which is a positive step. The OIG should also investigate ICE’s continued transfer of detainees between facilities, a widespread practice that flies in the face of CDC guidance.
 
Further, the OIG should investigate the number of detained people hospitalized as a result of COVID-19, and the number of people who, upon deportation, have tested positive for COVID-19, so that the public can understand the full scope of the crisis. Deporting people who have been exposed to and contracted a deadly virus in the U.S. is not only unethical, but potentially disastrous for global public health, and we have good reason to believe that has become regular protocol.
 
In the meantime, ICE must quickly act to release people from detention, including those who are medically vulnerable to COVID-19. This is the only way to prevent certain death — of detained people, ICE staff, and people in the communities they return home to.

Eunice Cho, Senior Staff Attorney, ACLU