A Democratic senator is opposing a bill that he says would perpetuate the discriminatory consequences of the war on drugs by forcing social media and other technology companies to broadly surveil people in an effort to combat illicit drug sales and lead to “meritless” referrals to the Drug Enforcement Administration (DEA).
Sen. Ron Wyden (D-OR) vowed that he will raise an objection to any future unanimous consent motion to advance the Cooper Davis Act on the floor on Thursday, about a week after an amended version of the legislation was approved by the Senate Judiciary Committee.
The bill would amend the Controlled Substances Act (CSA) in a way that would require social media companies and other communications service providers to report instances where there’s suspected sales, manufacturing or possession with intent to distribute of fentanyl, methamphetamine, prescription opioids and counterfeit drugs happening in their networks. Marijuana and other controlled substances would not specifically be targeted.
While the legislation says it would not “require” the companies to monitor or affirmatively search for such content, it imposes a maximum fine of $190,000 if the business “knowingly and willfully fails to make a report” to DEA about relevant drug-related content that they become aware of. A second offense would be punishable by a maximum $380,000 fine.
Social media companies would also be permitted to report to DEA if they simply believe they have a “reasonable belief” that a user is involved in the listed prohibited activities.
“Instead, it would mandate that platforms scan their users’ communications for anything that could be interpreted as being about selling or using drugs,” the senator said. “Given this country’s experience with the failed ‘War on Drugs’ it is easy to predict that communities of color will disproportionately have their conversations surveilled and referred for prosecutions, which is why it is opposed by civil rights groups, including the ACLU, NAACP and Leadership Conference on Civil and Human Rights.”
The bill itself doesn’t seem designed to target people who merely use drugs as the senator suggested; however, the wide latitude that companies would be given to interpret suspected instances of possession with intent to distribute could ultimately lead to social media companies alerting DEA about people who only discussed simple possession.
“Given the penalties in the bill and the ambiguity about intent, there are concerns that it is very likely that use/possession will be swept up in reports by companies to the DEA,” a Wyden spokesperson told Marijuana Moment on Friday.
The legislation was amended in committee to address certain concerns, including by requiring the Justice Department to “limit” the records it receives only to those that are “necessary” to complete an investigation. And it was also revised to add penalties for service providers who “knowingly” provide false information to the government or omit relevant details from their reports.
It was further amended to require DEA to submit a report to Congress one year after enactment to detail how many reports it received and other non-personal information about the nature of the reports. Additionally, the bill now explicitly exempts broadband internet providers from being required to submit reports.
But Wyden still has concerns about the legislation in its current form.
“Forcing a platform to decide what represents a drug transaction means that lots of innocent people will be referred for investigation and prosecution,” he said. “Finally, the reporting structure of this legislation is likely to produce large numbers of meritless referrals to the Drug Enforcement Administration and do little to address the real causes of the fentanyl epidemic or protect vulnerable communities.”
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In a letter to the Judiciary Committee last month, ACLU said that the “criminal legal system has always enforced drug crimes disproportionately in Black and Brown communities,” and the bill “will result in the same disparate outcomes.”
“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,” it said, referencing the agency’s attempts to “decode” emojis that it says are used in drug transactions.
Congressional efforts to combat the illicit fentanyl market have been met with skepticism and opposition from drug policy reform and civil rights advocates.
That includes a separate piece of legislation that passed the House in May that would ramp up criminal enforcement of fentanyl-related trafficking, while at the same time removing some barriers to research for Schedule I drugs like marijuana and certain psychedelics. A GOP senator also sought to include the language of that bill in the chamber’s version of the National Defense Authorization Act (NDAA).