The EARN IT Act Violates the US Constitution

Labor parties in countries like the UK and Australia specifically exist to act as union-supported (and funded) parties. Unions do exist to help deal with members' employers, but they also exist to allow for collective political action.

An obvious example worldwide is teachers' unions (though you could argue because their employer is the state government, the union is fighting against their employer). Another example would be the strikes in the UK during Thatcher's time in office. Not to mention that basically all workers' rights legislation in most countries came out of battles between unions and governments, hence why they are so "weary" to "permit" unions to take political action -- because collective action works.

> So you'd need workers to unionize (which they have NOT done to deal with their employers) [...]

There's a saying about the second best time to plant a tree being today, and that applies here. This battle is most likely already lost, but actively choosing to not learn a lesson from it (unionise and mobilise for the next time this happens) is simply foolish. Ideally the technology industry would've unionised 30 years ago, but you'll never have any strength if the immediate response to someone saying "we should unionise" is "even if we unionised right now we couldn't solve $current_problem". Even if that is true, maybe having that infrastructure in place will allow you to solve tomorrow's problem?

> I think the real question here is why tech companies (or rather their CEOs, founders etc) are not making a fuss.

I hope by "fuss" you mean "shutting down operations until demands are met". Plenty of CEOs blogged about how insane the aforementioned anti-encryption legislation is (as they have in most of these cases). Looks like that doesn't work, maybe we should stop trying the same tactic?

> Politicians ignore us because 90% of people are not informed and choose not to think about history when these issues come up.

If (hypothetically) Google shut down for a week over this or any other bill, it would not be passed. They ignore us because all of our complaining is petulance -- it's not a substitute for action. That's the entire historic purpose of general strikes.

A heavy compliance burden is a moat for incumbents. This is true in most industries - businesses only squeal about regulations if it's going to severely hurt their bottom line, if it's just an annoyance than they'll publicly claim they don't like it but also point out that it stops cowboys and amateurs (i.e. new competitors) from potentially hurting consumers.

“Violence, naked force, has settled more issues in history than has any other factor.” ― Robert A. Heinlein, Starship Troopers

If asking nicely isn't getting you anywhere then the only alternative to achieve your goal is to use some kind of force. Economic, social or direct physical force.

And beyond the fight itself being so ephemeral, there's no real way to know when it's been won or not. I believe that the FCC's tight-fisted control over what's allowed on what is allowed on network television is gone, and has been for some time. The Supreme Court has shown that they actually value the first amendment pretty strongly in recent years, even when its exercise may have bad side effects, and I think that if the FCC were to try and level fines against a new broadcaster for using the word 'ass' on television or something, it could be fought and the law overturned. But existing broadcasters are relatively complicit in that. The bigger networks don't want their family friendly-mass market television to have to compete with FX, HBO, or whatever other edgier networks are out there on the same spectrum, so they don't make a fuss because the barrier to entry that those broadcasting standards impose is worth paying the occasional small fine for accidental violations.

This is undoubtedly true in some tech arenas as well, and that tech companies - despite their lofty ideals, are finding it hard to find the energy to muster full-throated rebukes of policies that they may dislike ideologically, but maybe derive some small benefit from that their upstart competitors may not.

An interesting notion, but not at all reflective of the way unions relate to politics in the US or Europe at least.

Wise unions may not, but U.S. unions constantly do. Some governments may not permit politically-active unions, but the U.S. government does, and unions are consistently large contributors (cf. https://www.opensecrets.org/overview/toporgs.php?view=hm&cyc...).

Simply not true. Unions engaged in both historically. Workers rights is a political cause after all. Historically, unions primarily engaged the government to gain rights for the workers. Every union is/was a political organization first.

I see a lot of ‘Made in NY’ startups, even open source stuff use that brand, it feels like developer community is ripe for something like this.

Exactly correct. I said elsewhere in this thread that I gave them (plus ISPs etc) the benefit of the doubt when it came to Snowden and their compliance with government requests because I could understand they were scared by sept 11th, they wanted to be patriotic, maybe they didn't fully understand the risk or the future they were building etc. If they let EARN pass and comply with it, we all need to opt out.

My worry is how to get enough people to do the same. Being in the 1-10% of people not using these services is difficult (I have too many friends stuck using Whatsapp and Facebook messenger), it's uneconomic (who's buying a non-apple, non-android phone?) and it just makes it too easy for government to surveil you as your own special group.

Sadly, centralization is simpler. And privacy was an illusion anyway.

Very well put

How can someone possibly not 'fathom' a scenario?

There's someone shooting at people/cops, car chase, prison break out, or some kind of major violent criminal moving down the highway - they may roughly what he looks like, i.e. race and gender, hence, people who fit this profile get flagged, those that don't move on.

How hard is that to imagine?

Surely it's pretty rare, but surely such situations happen.

I've literally never seen anything like that in my entire life so it's probably not like the police are likely to be acting outrageously disproportionately. But I don't know, maybe you can look it up. But it's certainly easy to see scenarios in which many might want this to be public policy given certain scenarios.

To quote Justice William Rehnquist: “one of the greatest 'fictions' of our federal system is that the Congress exercises only those powers delegated to it, while the remainder are reserved to the States or to the people. The manner in which this Court has construed the Commerce Clause amply illustrates the extent of this fiction. Although it is clear that the people, through the States, delegated authority to Congress to 'regulate Commerce ... among the several States' (Commerce Clause), one could easily get the sense from this Court's opinions that the federal system exists only at the sufferance of Congress."

If they really want to address child pornography as a problem, they would treat it as a social ill/disease and go after the users instead of the platform. The goal should be reform that minimizes recidivism because it makes it easier to find those partaking in this content. At least with something like Facebook, they have a shot at identifying those sharing such content. Make it impossible to share on a widely used and understood service like Facebook and people will migrate to platforms that are much much harder to police.

I think she's making the wrong call but I can understand the process by which she made it.

> Some agencies of the United States Government (notably the Federal Bureau of Investigation (FBI)), want to prevent the deployment of encryption technology. They want either encryption so weak that just about anyone can break it, or they want a copy of every key used with strong encryption. This would be equivalent to a town with no locks on the front doors, or where the sheriff has a copy of every door key (just in case he has to search the house).

http://www.clock.org

Reading this, I could’ve sworn that it was referring to the EARN IT act. But the website hasn’t been updated in years.

> Influencing legislation is a right reserved for campaign contributors. Until we get serious about "getting money out of politics," that will be the case.

I dont even think its just that. I'd wager than whenever a case like this comes up, the bill is either popular in the congressperson home state or people are widely just ignorant about it and what it entails. These two things probably help contribute to some of the most unpopular senators nationally are constantly re-elected and have been for decades.

There are technical solutions coming down the pike at our benighted lawmakers that are going to change the balance of power and force them to be more attentive and truly represent their constituents. That's all I can say for now.

Pelosi and Feinstein DO truly represent their constituents as far as I can tell, it has to be said. I don't particularly like either of them, but then I don't particularly care for the people they represent either.

As a non-lawyer with a bit of interest in understanding the law, though, I'm strongly opposed to that technical debt. While it sure does keep the lawyers employed, it makes it _very_ hard for the lay citizen to understand what we can or cannot do.

I agree, and it's mind-blowing to me that no effort is being made to improve that process and the tooling that goes around it.

I recently read "You have to remain innocent" by James Duane (of "never talk to police fame"), and it's truly chilling how nobody can even tell what is or isn't a crime anymore.

We really should improve this.

So at the time this argument applies, you have provided them readable information and the doctrine would apply.

To be fairer to EFF in the light of the morning, their argument actually does account for the third-party doctrine: it instead rests on the theory that courts would find EARN IT so coercive that the service providers should be effectively treated as an arm of the state. I take a pretty dim view of the likelihood of such an argument's success, but it's a game attempt.

The 1st Amendment case is probably stronger, especially given the tendency toward maximalism in that area by the Supreme Court lately... but I wouldn't call it very strong. Defeating this politically is a much better bet.

End to end encryption is one way of fighting back against that regime: if the third party has nothing it can use to respond to a subpoena then that's that.

Of course we see here that the government quite likes their access (and sees encryption as standing in the way even of warrant-based access) and so they're stirring to action. I suppose I'm just a pessimist about the prospects of courts stepping in here to "fix" their mistakes (or prevent the legislature from making new ones).

The part that is often cited as being "voluntary" is that you decided to volunteer your information to a third-party (even if the service requires you to do so, and thus you actually had no meaningful choice in the matter) and thus you have "no reasonable expectation of privacy".

"First they came..." is about people not about ice cream flavors, or video games or constitutional amendments. Changing laws is a normal function of society. It is an anomaly (and a grave defect) that the US has become unable to even think of changing these particular laws, to the point where many of its people enshrine them as holy principles rather than recognising they are just laws of men.

It has been forever since America had judges brave enough to argue that something can't be lawful because it is evil, and so the EFF is obliged to frame things as "unconstitutional" instead. In a way that's America's legacy, the observation that slavery was evil pre-dates its founding as a country built on slavery, so it has always been necessary to its function to pretend that it's somehow important to allow evil if it's legal. In such an environment any potential judge with strong moral character could only be discouraged.

Reagan, the arch-priest of the small government cult did it too. He bullied states into changing the minimum drinking age by withholding Federal funding.

People rarely use the Small Government argument to combat items like excessive military expenses. It's always to do with taxes, privatizing (profitable) government functions, or criticizing consumer protection laws.

Here’s an example of a well-formatted prediction, from https://slatestarcodex.com/predictions-bets/: “Gay marriage will remain legal throughout a Trump presidency [confidence: 95%]” (prediction made 2016-11-15). That page also has some more detail on the theory of making predictions.

For this situation, david_w could give a prediction like “I think there is a 90% probability the EFF will support banning strong encryption by 2021-07-01.” Then, if the prediction turns out to be false, it either means David was wrong and he should have been much less confident, or he was right and encountered that unlucky one-in-ten unusual situation. And you, the observer who would personally estimate a different probability of that prediction coming true, could calculate the probabilities of those two situations being the case by using various formulas, including Bayes’ theorem. (David himself could also calculate the probabilities of those two situations, and use that to decide whether to change any of his views on the EFF.)

Once upon a time, the ACLU believed so deeply in the First Amendment that they fought National Socialist Party of America v. Village of Skokie all the way to the supreme court. You may remember the plaintiffs from the Blues Brothers movie, perhaps? The Illinois Nazis? Skokie, the town, was deliberately chosen because it had a large Jewish population, and many Holocaust survivors, yet the ACLU went to court to fight for these bona fide Nazis, and won them the right to wear their Nazi uniforms and their swastikas when they marched, carrying their hypocritical signs about "white free speech."

Can you imagine the ACLU doing that today?

..is a Babylon Bee headline that just writes itself.