Senators Propose New Law to Require Facebook and Google to Report Suspicious Content to the Feds
Technological innovation and the transfer of many aspects of everyday life onto the Internet has been a boon to society at-large. Few can dispute this. Family members across the country can connect via video calls in seconds, individuals can deposit funds near instantaneously, self-driving automotive technology has begun deployment, and many jobs can be done 100% remotely. All of this is possible due to the extraordinary computing technologies that have been deployed, the global trade in precious metals and energy resources, and our digital infrastructure.
In order to constantly improve many of technologies, our systems rely on large quantities of data points often provided by users of the products. This is true of machine learning. Largely without our knowledge, companies aggregate and mine our data points to improve their products or to build “dossiers” on consumers for their clients. Some companies like Facebook have been alleged to track their users’ data even after the user has logged out of the platform. Many times, supposedly “free services” are allowing a user access to their platform in return for collecting and analyzing that user’s data. Unbeknownst to many everyday Americans, companies like Amazon, Facebook, and Google account for around 70% of digital advertising spending; digital advertisers want to narrowly target their advertisements to consumers using the large data sets these companies assemble on consumers. This targeted advertising is incredibly lucrative and useful for advertisers seeking to reduce wasteful spending.
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With these large data sets, major companies have access to all kinds of data that is analyzed through their algorithms. For example, Twitter algorithms might be programmed to include a “Notice” or “Fact Check” on posts that include “COVID-19” or “2020 Election.” In recent years, there has been a massive effort to pressure these technology companies into doing the bidding of political interests: scanning their platforms for Russian bots, deleting false or potentially harmful information, and providing fact checks on disputed claims among other things. Countless elected officials have threatened to revoke a federal statutorily-granted liability shield if these companies do not comply with political pressure. Two U.S. Senators have plans to increase the burden on some of these companies to include identifying “suspicious transmissions,” as defined by the See Something, Say Something Act of 2020 (“the Act”).
Senators Joe Manchin and John Cornyn have introduced a bill to require interactive computer services (ICPs) to file suspicious transmission activity reports (STARs) with the federal government. The intent is to utilize the ICPs as intermediaries in identifying “suspicious transmissions” and providing prompt notice to the relevant federal agency. The best defense of this proposal is that rather the allowing the federal government to monitor activity on these platforms, the private companies will be required by law to independently monitor and report on their findings, thereby allowing government agencies to avoid infringing on Americans’ constitutional rights. An ICP is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer service, including specifically a service or system that provides access to the Internet.” ICPs are best known to the public as services like Facebook, Twitter, and Google.
The senators bill defines a suspicious transmission as “any public or private post, message, comment, tag, transaction, or any other user-generated content or transmission that commits, facilitates, incites, promotes, or otherwise assists the commission of a major crime.” In order to comply with this bill, ICPs must submit to federal agency a STAR within 30 days or provide immediate notification “in the case of a suspicious transmission that requires immediate attention.” Non-compliance with this legislation may result in the loss of the now infamous Section 230(c) liability shield for ICPs. Notably, this legislation provides serious non-compliance penalties that mirror the level of political pressure seen from other members of the Senate and Congress.
This legislation builds on a reporting model from the financial industry. Under the Bank Secrecy Act, financial institutions must file suspicious activity reports (SARs) within 30 days. According to the Office of the Comptroller of the Currency, financial institutions are required to assist the federal government in detecting and preventing money laundering. Such requirements include: keeping “records of cash purchases of negotiable instruments,” filing “reports of cash transactions exceeding $10,000,” and reporting “suspicious activity that might signal criminal activity.” Both the Act and the Bank Secrecy Act undoubtedly sweep up “suspicious” activity that is not truly criminal. The Act, however, covers First Amendment activities; whereas the Bank Secrecy Act does not.
In limiting the damage to potentially constitutionally protected speech, the Act defines “major crimes” as including a crime of violence, relating to domestic or international terrorism, and that is a serious drug offense. On its face, none of these categories of major crimes appears troublesome; however, in the aftermath of the January 6th riot at the U.S. Capitol, many members of Congress and President Biden have begun a new domestic “War on Terrorism.” These powerful individuals have laid their sights on actual domestic terrorists, or those involved with the Capitol Riot, and those who directly or indirectly circulated ideas that could have incited the riot.
Their argument is as follows: former President Trump, many Republican members of Congress and the Senate, and conservative influencers and pundits spent months inflating a narrative that there had been widespread election irregularities. Some, including former President Trump, went so far as to call the 2020 Election “rigged” and “stolen;” many branded this effort “Stop the Steal.” For weeks, this narrative spread throughout the conservative media ecosystem with some granting more credence to its allegations than others. Notably, most discussion involved peaceful but hysterical dialogue; few sought to overturn the election with violence and those who did, did so publicly on various social media platforms.
While the See Something, Say Something Act of 2020 purports to focus on “the illicit sale of opioids and other drugs online,” the bill is written broadly enough to include potentially constitutionally protected speech. In the aftermath of the January 6th U.S. Capitol riot, the conflation between actual domestic terrorists and their supposedly conservative counterparts in Congress and the broader public has reached a level unseen in modern peaceful times.
In an excellent piece called, “The New Domestic War on Terror is Coming,” Glenn Greenwald writes, “We have witnessed an orgy of censorship from Silicon Valley monopolies with calls for far more aggressive speech policing, a visibly militarized Washington, D.C. featuring a non-ironically named “Green Zone,” vows from the incoming president and his key allies for a new anti-domestic terrorism bill, and frequent accusations of “sedition,” “treason,” and “terrorism” against members of Congress and citizens.” Greenwald cites CNN host Brian Stelter and one of his past guests Alex Stamos who discussed the “need for social media companies to use the same tactics against U.S. citizens that they used to remove ISIS from the internet…and that those tactics should be directly aimed at what he calls extremist ‘conservative influencers.’”
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Greenwald’s point is reinforced by leftists like Nicholas Kristof or Oliver Darcy who accuse Fox News and other conservative cable networks of airing sedition and claiming that “Fox News laid the groundwork for the attack on the Capitol by challenging the results on 774 individual instances with wild conspiracies.” It is no stretch to see how reporting on suspicious online content can be interpreted as relating to fringe extremists and criminals to those who may report on less accepted news stories, or those that the corporate media determines to be “fringe.” For those who see these concerns as dubious, even the Biden administration is “considering civil-rights concerns” with regards to any new domestic terrorism laws, according to the Wall Street Journal.
With the See Something, Say Something Act of 2020, the reality is that ICPs will be pressured into sharing more information with law enforcement than less, especially if there are not firm regulations defining conduct to be included under the “domestic terrorism” section of “major crimes.” As we have seen in the past five years, members of Congress and federal government officials will use all tools available to bludgeon the “Big Tech” companies into submission. It is often said that the road to hell is paved with good intentions. In light of the renewed “War on Terror,” Americans should be suspicious of elected officials who take advantage of the tragedy at the Capitol and weaponize it for their own political gain.