EFF, the ACLU, the National Association of Criminal Defense Lawyers joined a coalition that sent two letters to the Senate Judiciary Committee to oppose S. 1080, the Cooper Davis Act. The letters point out the privacy, speech, and criminal justice problems with the bill.

The bill would require private messaging services, social media companies, and even cloud providers to report their users to the Drug Enforcement Administration (DEA) if they find out about certain illegal drug sales.

Even with the proposed amendments, S. 1080 would weaken an already insufficient privacy law and would provide a roadmap for more sweeping and overbroad carveouts. Its vague requirements and criminal penalties would result in companies over-reporting users to the DEA for innocent, protected speech. History shows it may also encourage companies to engage in dragnet scanning of user communications, which would result in even more errors and sweep up the same voices Congress is trying to protect.

Rather than addressing a pressing health crisis caused by fentanyl overdoses, this bill does an end run around the Fourth Amendment  by requesting user information from online services in the form of mandatory reporting and voluntary disclosures. This puts online services in the position to decide whether their users have engaged in a sale of or intent to sell illicit substances and then decide how much to report to the DEA. The bill also expressly undermines the already limited warrant or subpoena and notice requirements of the Stored Communications Act.  

The criminal legal system has always enforced drug crimes disproportionately in Black and Brown communities. This bill will result in the same disparate outcomes. Online services are not qualified to determine a user’s intent when they post photos, videos, or other communications to online services. People on online services often post things that are untrue or exaggerated in order to promote a persona — and as the DEA has observed, illegal activity is often transacted in coded communication  that is not easily decipherable. The inevitable result will be users having their personal information and private communications shared with the DEA by online services that lack the expertise and cultural competence to determine users’ intent — a fact demonstrated by the disproportionate impact of online services’ content moderation efforts on Black and transgender people.  Whether the determinations are made by algorithms or humans, disparate outcomes will mirror those in the larger criminal legal system.

Congress should be highly skeptical about giving law enforcement broad access to our conversations without judicial oversight. This bill contains no warrant requirement, no required notice, and limited user protections. Congress should vote No.

The other signers of EFF’s letter include:

  • Advocacy for Principled Action in Government
  • American Civil Liberties Union
  • Center for Democracy & Technology
  • Chamber of Progress
  • Defending Rights & Dissent
  • Fight for the Future
  • Freedom of the Press Foundation
  • Government Information Watch
  • National Association of Criminal Defense Lawyers
  • R Street Institute
  • S.T.O.P. - Surveillance Technology Oversight Project

Other signers of ACLU and NACDL’s letter include:

  • Advocacy For Principled Action In Government
  • American Civil Liberties Union
  • Center for Democracy & Technology
  • Defending Rights & Dissent
  • Due Process Institute 
  • Government Information Watch
  • Innocence Project
  • Justice Strategies
  • The Leadership Conference on Civil and Human Rights
  • NAACP Legal Defense & Educational Fund, Inc.
  • National Association of Criminal Defense Lawyers
  • Organization for Identity & Cultural Development (OICD)
  • Restore The Fourth
  • Surveillance Technology Oversight Project