While the country is facing a daily Covid-19 death toll in the thousands and the coronavirus outbreak snakes its way inside the executive branch, Congress is currently considering a vast expansion of the Justice Department’s power over online platforms and the people who use them. Should these measures pass, Americans’ web-searching and browsing histories could be collected by the FBI without a warrant. But that’s just the preeminent concern. Should Congress grant the DOJ all the power it is seeking, users may also lose access to apps that use end-to-end encryption (like Signal and Facebook Messenger), and the kinds of content they can currently post online may find themselves subject to additional moderation and monitoring.
The exposure of search and browser histories would be the result of an amendment to the Patriot Act, passed in 2001 and up for reauthorization. As reported by Spencer Ackerman at The Daily Beast, Senate Majority Leader Mitch McConnell is pushing for an amendment extending those powers to the FBI, “under cover of redressing what President Donald Trump and his allies call the FBI’s ‘witch hunt’ over collusion with the Kremlin.” The Patriot Act requires that materials that are “relevant” to an ongoing investigation be turned over; McConnell’s amendment expands that, as Democratic Senator Ron Wyden told The Daily Beast, so that “[Attorney General Bill] Barr gets to look through the web browsing history of any American—including journalists, politicians, and political rivals—without a warrant, just by saying it is relevant to an investigation.”
As for the possibility that Congress may substantially diminish the rights we currently enjoy in terms of content creation and user encryption, that might come about through the passage of the EARN IT Act—Eliminating Abusive and Rampant Neglect of Interactive Technologies. Introduced by Republican Senator Lindsey Graham, with the support of Democratic senators such as Richard Blumenthal and Dianne Feinstein, the new bill could threaten online privacy by requiring online platforms like Facebook to “earn” immunity from liability for user-generated content—something they already are granted under law—by meeting a new set of “child safety” requirements. Compliance in these matters would, once again, be overseen by the attorney general. These requirements would likely necessitate that companies monitor their users, including what they share in private or encrypted communications, to ensure that child sexual abuse material (child pornography) is not being disseminated on their platforms. Barr would have authority over the guidelines as well, which are not enumerated in the bill.
“Together, EARN It and Mitch McConnell’s Patriot Act amendments would give the most corrupt attorney general of our lifetime unprecedented ability to pry into everything Americans do and say online,” Wyden told The New Republic in a statement. “It would be an unconscionable mistake for Democrats to hand Donald Trump and Attorney General Barr these sprawling powers, especially during the Covid-19 crisis, when Americans are spending more and more time on our devices.”
There is a chance, during the ongoing spectacle of this pandemic, that these measures may pass with little notice or public debate, despite significant opposition. The Patriot Act is one of the hallmarks of the 9/11 era, and privacy and rights advocates have been fighting it for nearly two decades now—there was a push to just let it expire this time around. EARN IT is a new creation, but the tactics its supporters have deployed to ensure its passage are highly reminiscent of the ones that drove the 2018 Stop Enabling Sex Traffickers Act, or SESTA, and the Allow States and Victims to Fight Online Sex Trafficking Act, or FOSTA, which are now referred to collectively as SESTA/FOSTA.
EARN IT takes aim at the same law SESTA/FOSTA rolled back in part, the Communications Decency Act, which, despite the name, helped open up online speech. Sex workers’ rights advocates and advocates for victims of human trafficking were the first to speak out against SESTA/FOSTA, and some of the same groups are leading a campaign to stop EARN IT. As the sex worker tech collective Hacking//Hustling writes in its bill explainer, “This bill is such a clear extension, and expansion of SESTA/FOSTA; even more aggressively geared toward surveillance and government anti-encryption crackdowns.”
Barr and his congressional allies say the bill is meant to target child sexual abuse material online—content that is already unlawful. Protecting children from abuse was the justification for SESTA/FOSTA, as it is for EARN IT. Not everyone is buying this line, however. “Although the EARN IT Act attempts to protect children from online sexual exploitation—an important and laudable goal—it does so by impermissibly regulating online speech,” Electronic Frontier Foundation staff attorneys Sophia Cope and Aaron Mackey wrote to the Senate Judiciary Committee on March 9. Just as the war on terror provided the ammunition for the Patriot Act, so does the “war on trafficking” drive SESTA/FOSTA.
What is especially perilous about measures like this, in this moment, is whom they would most likely empower: an attorney general who flagrantly puts the interest of the president over the people he theoretically represents. Prior to the coronavirus outbreak, Barr demonstrated the willingness to demolish the firewall of independence that for decades has stood between the DOJ and the White House as a polite tradition.
With attention diverted onto a public health crisis, Barr is escalating his effort to become a wholly owned subsidiary of Trump, Inc. His Justice Department has now dropped its prosecution of Michael Flynn, who confessed to lying to investigators, another sign Barr is willing to carry on Trump’s campaign of vengeance against those who launched and facilitated the Russia investigation. Nearly 2,000 former DOJ officials have called for Barr’s resignation—for the second time in four months. Putting the details of these pieces of legislation aside, this is not an opportune time to be expanding either the DOJ’s power in general or Barr’s in particular. There is no good time, in fact, to expand Barr’s powers.
It was just a few weeks ago that people were outraged at Zoom for not doing enough to protect the privacy of its users, including children, who could be exposed to abuse on its platform. One thing that could protect children in that instance would be end-to-end encryption, which Zoom does not offer (though it may offer it, for a premium). The DOJ is instead telling the public—and Congress—that encryption enables predators and endangers children. And it is claiming this while also working to get its own lawful access to our Zoom chats and anything else we do in what remains in the privacy of our online lives. In all likelihood, the pandemic means more and more of our lives will be led online. To further expose our lives to Bill Barr’s corrupt and compromised Justice Department is a door opening to nothing good.