A Democratic Senator is opposed to a bill he claims would perpetuate discriminatory effects of the drug war by forcing technology companies and social media to monitor people to combat illicit drugs sales. This could lead to “unjustified” referrals to Drug Enforcement Administration (DEA).
Sen. Ron Wyden, D-OR, has vowed to raise objections to any future motions for unanimous consent to advance the Cooper Davis Act. This comes about a week following the approval of an amended version by the Senate Judiciary Committee.
The bill amends the Controlled Substances Act in a manner that requires social media companies, and other communication service providers, to report suspected cases of sales, manufacturing, or possession with intention to distribute fentanyl and methamphetamine in their networks. Marijuana, and other controlled substances, would not be specifically targeted.
The law does not require companies to “monitor” or “affirmatively search” for drug-related content. However, a maximum $190,000 fine is imposed if they “knowingly and willfully fail to report” relevant content to DEA. A second offense is punishable by up to $380,000 in fines.
The DEA would be able to receive reports from social media companies if they believe that they have a’reasonable suspicion’ that a particular user is engaged in one of the prohibited activities listed.
Wyden stated there’s no doubt that there’s a fentanyl crisis in the United States, but he said that the legislation fails to offer serious solutions for this epidemic.
The senator explained that the bill would require platforms to scan users’ communications and look for any content that could be interpreted in a negative light, such as mentioning drugs or selling them. It is easy to predict, given the failure of the ‘War on Drugs,’ that conversations in communities of color would be monitored and criminally prosecuted. This is why civil rights groups such as the ACLU and NAACP oppose it.
The bill doesn’t appear to be designed to target those who merely use or possess drugs, as suggested by the senator. However, due to the latitude given to companies to interpret suspicions of possession with the intent to distribute, social media companies could alert the DEA to people who have only talked about simple possession.
A Wyden spokesperson told Marijuana Moment that the DEA would be notified of any use or possession if the DEA received a report from a company.
The legislation was modified by committee in order to address some concerns. For example, the Justice Department is required to only receive records that are “necessary to complete an inquiry”. It was also amended to include penalties for service providers that “knowingly” give false information to government officials or omit pertinent details in their reports.
The bill was amended further to require DEA submit a detailed report to Congress within one year of its enactment, detailing how many reports they received as well as other non-personal details about the nature and number of reports. The bill also explicitly exempts broadband providers from having to submit reports.
Wyden is still concerned about the current legislation.
He said that by forcing a platform to determine what constitutes a drug transaction, many innocent people would be referred for an investigation and prosecution. “Finally the reporting structure in this legislation will likely result in a large number of unjustified referrals to the Drug Enforcement Administration, and do little to protect vulnerable communities or address the true causes of the fentanyl crisis.”
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ACLU wrote to the Judiciary Committee in a letter last month that “the criminal legal system has enforced drug crimes disproportionately against Black and Brown Communities” and the bill will “result in the same disparate results.”
The DEA said that people often use emojis to communicate illegal activities.
Drug policy reformers and civil rights activists have reacted with skepticism to the Congressional efforts made to combat illicit fentanyl markets.
This includes a separate bill that was passed by the House back in May. It would increase criminal enforcement for fentanyl trafficking while removing certain barriers to research on Schedule I drugs such as marijuana and some psychedelics. A GOP senator also sought to include that bill‘s language in the chamber version of the National Defense Authorization Act.
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