New Senate Bill Would Turn Online Services Into Narcs

An expanded surveillance state can’t solve problems created by drug prohibition.

Drug war nostalgia got you down? Do you miss the police state evolving around you to combat people's desire to get high instead of the vague threats of terrorism or "domestic extremism"? Well, a bipartisan cabal of senators offers just what you need! These lawmakers are sponsoring legislation to force online services to monitor and report any mentions you make of illicit intoxicants. It's a terrible idea that builds on earlier drug policy errors.

"The Cooper Davis Act…requires communication service providers to report to the DEA on the sale or distribution of illicit drugs including fentanyl, methamphetamine, or a counterfeit controlled substance," boasts Sen. Roger Marshall (R–Kan.) of S.1080, introduced (after a failed effort last year) on March 30 with co-sponsors Richard Durbin (D–Ill.), Chuck Grassley (R–Iowa), Amy Klobuchar (D–Minn.), Jeanne Shaheen (D–N.H.), and Todd Young (R–Ind.). The legislation "bolsters DEA's existing data infrastructure to improve intelligence gathering on drug dealers operating across various online communication platforms."

Bad Law Doubling Down on Bad Policy

The bill is named after Cooper Davis, a Kansas 16-year-old who died in 2021 after reportedly consuming counterfeit Percocet pills laced with fentanyl he and his friends purchased from a dealer they encountered on Snapchat. Understandably upset, his mother, Libby Davis, became an anti-drug activist. Marshall and company's Cooper Davis Act, "to amend the Controlled Substances Act to require electronic communication service providers and remote computing services to report to the Attorney General certain controlled substances violations," is the result. Unfortunately, it's ill-considered legislation that would double down on bad policy to inflict greater surveillance on the country at large.

"The bill, named the Cooper Davis Act, is likely to result in a host of inaccurate reports and in companies sweeping up innocent conversations, including discussions about past drug use or treatment," warns Electronic Frontier Foundation (EFF) staff attorney Mario Trujillo. "While explicitly not required, it may also give internet companies incentive to conduct dragnet searches of private messages to find protected speech that is merely indicative of illegal behavior."

The legislation also continues down the prohibitionist path that brought us counterfeit pills of uncertain and often lethal potency. Black markets always rise to meet demand for illegal goods and services, but what they offer is rarely as reliable or safe as offerings from legal providers.

Blame Prohibition for Dangerously Powerful Drugs

"Fentanyl is just the latest manifestation of what drug policy analysts call 'the iron law of prohibition,'" Cato Institute Senior Fellow in Health Policy Studies Dr. Jeffrey A. Singer told the House Judiciary Committee's Subcommittee on Crime and Federal Government Surveillance on March 1. "A variant of what economists call the Alchian‐​Allen Effect, the shorthand version of the iron law states, 'the harder the law enforcement, the harder the drug,' Enforcing prohibition incentivizes those who market prohibited substances to develop more potent forms that are easier to smuggle in smaller sizes and can be subdivided into more units to sell."

"The iron law of prohibition is why cannabis THC concentration has grown over the years," Singer added. "It is what brought crack cocaine into the cocaine market. And it made fentanyl replace heroin as the primary cause of overdose deaths in the United States."

In a world in which getting high was legal (let's leave age limits aside for the moment), Cooper Davis might have consumed a relatively mild drug of known dosage manufactured by a reputable company that faced serious liability concerns if it varied from safe practices. Instead, we have prohibition encouraging criminal providers to develop ever-more-powerful intoxicants, produced in batches of inconsistent purity and power, that can be easily smuggled past law enforcement and sold to end users.

Legal or not, people who want drugs can get them. But prohibition gives us recurring games of chemical Russian Roulette every time somebody takes an illegal dose. It's that prohibitionist system, which has proven incapable of preventing drugs from getting to the Cooper Davises of the world, that the senators want to enhance with new surveillance authorizations forcibly deputizing communications companies as narcs. And they'll have plenty of incentive to report, or over-report.

"A provider that knowingly and willfully fails to make a report required under subsection (b)(1) shall be fined…in the case of an initial knowing and willful failure to make a report, not more than $190,000," specifies the bill. "In the case of any second or subsequent knowing and willful failure to make a report, not more than $380,000."

But there's no reason to expect that this is the prohibitionist measure that will make the difference.

"If policymakers double down on the same prohibitionist policies they have employed for over 50 years, deaths from illicit drug overdoses will continue to rise," noted Cato's Singer. "Doing the same thing repeatedly, with even more vigor this time, will not yield a different result."

A Model for Future Surveillance

Worse, forcing communications companies to snitch on customers threatens to become a habit all too easy to extend and apply to a wide range of politicians' pet causes.

"This bill is a template for legislators to try to force internet companies to report their users to law enforcement for other unfavorable conduct or speech," cautions EFF's Trujillo. "This bill aims to cut down on the illegal sales of fentanyl, methamphetamine, and counterfeit narcotics. But what would prevent the next bill from targeting marijuana or the sale or purchase of abortion pills, if a new administration deemed those drugs unsafe or illegal for purely political reasons?"

Conservatives might want to contemplate such power in the hands of anti-gun officials, such as the one currently occupying the White House.

After all, there's precedent for surveillance powers growing to meet new fears real and imagined. The proposed bill is loosely modeled on a law mandating reporting of material related to child abuse. The 9/11 terrorism attacks became an excuse to dust off domestic surveillance powers proposed after the Oklahoma City bombing, and to repackage them in the PATRIOT Act. With terrorism fears fading, the FBI is distributing bulletins warning that Revolutionary War imagery might indicate "anti-government or anti-authority violent extremis[m]." If the Cooper Davis Act passes and evolves, simply planning Independence Day festivities via social media could become a touch risky in the future.

Save Kids. Dump Prohibition

Instead of further empowering a surveillance state that is already over-intrusive, officials and advocates concerned about drug availability should look to the real problem: the war on drugs. Prohibition brings us ever-more-powerful intoxicants and little control over how they're produced and distributed. Legalization won't make drugs go away, but it will help make the market for them safer and more responsible. That's more than any snitch bill can offer.