3(b)(2)(B), platforms have an affirmative defense for conduct that would otherwise violate the Act if they do so in order to вЂњprotect safety, user privacy, the security of nonpublic data, or the security of the covered platform.вЂќ This language is too vague, and could be used to deny users the ability to use competing services that offer better security/privacy than the incumbent platform-particularly where the platform offers subpar security in the name of вЂњpublic safety.вЂќ For example, today Apple only offers unencrypted iCloud backups, which it can then turn over governments who claim this is necessary for вЂњpublic safety.вЂќ Apple can raise this defense to justify its blocking third-party services from offering competing, end-to-end encrypted backups of iMessage and other sensitive data stored on an iPhone.ДЄnd the Open App Markets bill has similar issues: Again, the FBIвЂ™s repeated statements about end-to-end encryption could serve as support.ДЇinally, under Sec. It can easily be interpreted to cover any company that offers an end-to-end encrypted alternative, or a service offered in a country whose privacy laws forbid disclosing data in response to US court-ordered surveillance. 2(a)(2), the definition of business user excludes any person who вЂњis a clear national security risk.вЂќ This term is undefined, and as such far too broad. The section also doesnвЂ™t mention any other important privacy-protective features and policies, which also shouldnвЂ™t be the basis for creating liability for a covered platform under Sec. This is very similar to one of the problems with the encryption carve-out in the EARN IT Act. The word вЂњsolelyвЂќ suggests that offering end-to-end encryption could be a factor in determining liability, provided that it is not the only reason.

3(c)(7)(A)(vi) states that there shall be no liability for a platform вЂњsolelyвЂќ because it offers вЂњend-to-end encryption.вЂќ This language is too narrow.

All Apple would need to do is point to any number of FBI materials decrying the security risks with вЂњwarrant proof encryption.вЂќ It would allow Apple to deny access to an encryption service provider that provides encrypted cloud backups to the cloud (which Apple does not currently offer). 3(c)(7)(A)(iii) would allow a company to deny access to apps installed by users, where those app makers вЂњhave been identified as national security, intelligence, or law enforcement risks.вЂќ That language is far too broad. He starts by highlighting how it might work with AICOA: They both could be backdoors to pressuring companies into blocking encryption apps. However, Bruce Schneier now points out another potential issue with both bills that seems like a legitimate concern. There have been some other claims made about problems with these bills, though some of them seem overblown to me (for example, the claims that the Open App Markets bill would magically undermine security on mobile phones). Indeed, it seems pretty clear that the only reason these bills have strong support from Republicans is because they know the bills can be abused to attack editorial discretion. Wed, Jun 22nd 2022 12:11pm - Mike MasnickДЄs the big push is on to approve two internet-focused antitrust bills, the American Innovation and Choice Online Act (AICOA) and the Open App Markets Act, weвЂ™ve been calling out that while the overall intentions of both may be good, there are real concerns with the language of both and how it could impact content moderation debates.

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