LDF and a coalition of criminal justice organizations sent a letter to U.S. Senate Judiciary Committee Chair Dick Durbin and Ranking Member Lindsey Graham urging Committee members to vote “no” on S. 1080, the Cooper Davis Act. The bill would require private messaging services, social media companies, and cloud providers to report users and suspected illegal drug sales to the Drug Enforcement Agency (DEA). Companies would be pressured to report users’ online activity, location data, and other identifying information.
The bill purports to address the sale of methamphetamine, fentanyl, and “counterfeit substances” by coopting online services to report the alleged or suspected creation, manufacture, or distribution of these substances — or possession with intent to create, manufacture, or distribute them. Rather than meaningfully addressing the public health crisis caused by such substances, this bill would instead incentivize online services to search through user content and effectively deputize them as agents of the Drug Enforcement Agency (DEA), undermining the Fourth Amendment and the Stored Communications Act, likely with disproportionate effects on people of color, LGBTQ+ people, and other marginalized communities. Companies could face criminal fines based on the mandatory and voluntary reporting scheme.
This bill circumvents constitutional and statutory privacy protections and falls short of its intended purpose. The bill requires online services — including social media, email, and internet service providers — to identify “facts or circumstances” indicating an “apparent violation involving” “the creation, manufacturing, distributing, dispensing, or possession with intent to manufacture, distribute, or dispense” fentanyl, methamphetamine, or a counterfeit substance and report them to the DEA. Not only does the bill require reporting for “actual knowledge” of those “facts and circumstances,” but it permits reporting on a mere “reasonable belief” that an “apparent” violation has occurred. Failure to perform the required reporting can result in criminal and civil fines amounting to hundreds of thousands of dollars. The bill goes further in encouraging companies to turn over identifying information including screen names, photos, IP addresses, geolocation information, and even the content of communications to the DEA and potentially other law enforcement agencies. The bill also requires that the provider retain the information for later access by law enforcement9 and prohibits notice to the user.
Read the full letter here.
Founded in 1940, the Legal Defense Fund (LDF) is the nation’s first civil rights law organization. LDF’s Thurgood Marshall Institute is a multi-disciplinary and collaborative hub within LDF that launches targeted campaigns and undertakes innovative research to shape the civil rights narrative. In media attributions, please refer to us as the Legal Defense Fund or LDF. Please note that LDF has been completely separate from the National Association for the Advancement of Colored People (NAACP) since 1957—although LDF was originally founded by the NAACP and shares its commitment to equal rights.