While the tech law is expected to achieve the rare feat of getting through Congress at what experts told Ars was a record pace, both supporters and critics also expect that the law will just as promptly be challenged in courts.
Supporters have suggested that any litigation exposing flaws could result in amendments. They’re simultaneously bracing for that backlash, while preparing for the win ahead of the vote tonight and hoping that the law can survive any subsequent legal attacks mostly intact.
Experts disagree on encryption threats
In a press conference hosted by the nonprofit Americans for Responsible Innovation, Slade Bond—who serves as chair of public policy for the law firm Cuneo Gilbert & LaDuca, LLP—advocated for the law passing, warning, “we should not let caution be the enemy of progress.”
Bond joined other supporters in suggesting that apparent threats to encryption or online speech are “far-fetched.”
On his side was Encode’s vice president of public policy, Adam Billen, who pushed back on the claim that companies might break encryption due to the law’s vague text.
Billen predicted that “most encrypted content” wouldn’t be threatened with takedowns—supposedly including private or direct messages—because he argued that the law explicitly covers content that is published (and, importantly, not just distributed) on services that provide a “forum for specifically user generated content.”
“In our mind, encryption simply just is not a question under this bill, and we have explicitly opposed other legislation that would explicitly break encryption,” Billen said.
That may be one way of reading the law, but Daly told Ars that the EFF’s lawyers had a different take.
“We just don’t agree with that reading,” she said. “As drafted, what will likely pass the floor tonight is absolutely a threat to encryption. There are exemptions for email services, but direct messages, cloud storage, these are not exempted.”
