June 5, 2023
RE: Criminal Justice Organizations Urge “No” Vote on Cooper Davis Act
The Honorable Dick Durbin
Chair, Senate Judiciary Committee
711 Hart Senate Office Building
Washington, D.C. 20510
The Honorable Lindsey Graham
Ranking Member, Senate Judiciary Committee
211 Russell Senate Office Building
Washington, D.C. 20510
Dear Chair Durbin, Ranking Member Graham, and Members of the Senate Judiciary Committee:
The below signed criminal justice and civil rights advocacy groups urge you to vote “no” on S.
1080, the Cooper Davis Act. The bill purports to address the sale of methamphetamine, fentanyl,and “counterfeit substances” by coopting online services to report the alleged or suspected
creation, manufacture, or distribution of these substances — or possession with intent to create,
manufacture, or distribute them.1 Rather than meaningfully addressing the public health crisis
caused by such substances, this bill would instead incentivize online services to search throughuser content and effectively deputize them as agents of the Drug Enforcement Agency (DEA),2
undermining the Fourth Amendment and the Stored Communications Act, likely withdisproportionate effects on people of color, LGBTQ+ people, and other marginalizedcommunities.
This bill circumvents constitutional and statutory privacy protections and falls short of its
intended purpose. The bill requires online services3 — including social media, email, andinternet service providers4 — to identify “facts or circumstances” indicating an “apparentviolation involving” “the creation, manufacturing, distributing, dispensing, or possession withintent to manufacture, distribute, or dispense” fentanyl, methamphetamine, or a counterfeit
substance and report them to the DEA.5 Not only does the bill require reporting for “actualknowledge” of those “facts and circumstances,” but it permits reporting on a mere “reasonablebelief” that an “apparent” violation has occurred.6 Failure to perform the required reporting canresult in criminal and civil fines amounting to hundreds of thousands of dollars.7 The bill goes1

Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(b)(1), (3) (ELL23280).
Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(b)(1), (3) (ELL23280).
3
The bill applies to “providers,” encompassing “electronic communication services” and “remote computingservices” as defined under the Electronic Communications Privacy Act. Cooper Davis Act, S. 1080, 118th Cong.,
sec. 2(a)(1), § 521(a) (ELL23280) (citing 18 U.S.C. §§ 2510, 2711).
4
In re iPhone Application Litigation, 844 F.Supp.2d 1040, 1057 (N.D. Cal. 2012) (“[T]he computer systems of an email provider, a bulletin board system, or an ISP are uncontroversial examples of facilities that provide electroniccommunications services to multiple users. . . .”).
5Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(b)(3) (ELL23280).
6
Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(b)(2) (ELL23280).
7
Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(f)(1)–(2) (ELL23280).
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further in encouraging companies to turn over identifying information including screen names,photos, IP addresses, geolocation information, and even the content of communications to theDEA and potentially other law enforcement agencies.8 The bill also requires that the provider
retain the information for later access by law enforcement9 and prohibits notice to the user.10
Rather than addressing a pressing health crisis, this bill does an end run around the Fourth
Amendment11 by requesting user information from online services in the form of reporting andvoluntary disclosures. This puts online services in the position to decide what appears to be asale of or intent to sell illicit substances and then decide how much to report to the DEA. The
bill’s “reasonable belief” standard is not clearly defined and falls far short of the probable cause
standard demanded by the Fourth Amendment12 that law enforcement generally has to meet
before obtaining a warrant and engaging in a search. The bill also expressly undermines13 thealready limited warrant or subpoena and notice requirements of the Stored Communications
Act.14The criminal legal system has always enforced drug crimes disproportionately in Black andBrown communities. This bill will result in the same disparate outcomes. Online services are notqualified to determine a user’s intent when they post photos, videos, or other communications toonline services. People on online services often post things that are untrue or exaggerated inorder to promote a persona — and as the DEA has observed, illegal activity is often transacted incoded communication15 that is not easily decipherable. The inevitable result will be users having
their personal information and private communications shared with the DEA by online services
that lack the expertise and cultural competence to determine users’ intent — a fact demonstrated
by the disproportionate impact of online services’ content moderation efforts on Black andtransgender people.16 Whether the determinations are made by algorithms or humans, disparate
outcomes will mirror those in the larger criminal legal system.
Opioid addiction continues to be a pressing health concern that has claimed entirely too many
lives; however, this bill does not properly address the problem. It instead creates a new problem
by asking the employees of online services or even algorithms to make determinations on themeaning and intent of people’s social media posts and private messages. Online services are notqualified to make judgements on who is selling unlawful substances. Even law enforcement
officers with years of experience are prone to misread such actions and intentions, and social
media companies should not be asked to undertake the same highly problematic task. Thank you
for your consideration. We urge you to vote no on this bill.
8

Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(c)(1)(A)–(E) (ELL23280).
Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(i)(A) (ELL23280).
10
Cooper Davis Act, S. 1080, 118th Cong., sec. 2(a)(1), § 521(i)(B) (ELL23280).
11United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (“The government may not compel a commercial ISP
to turn over the contents of a subscriber's emails without first obtaining a warrant based on probable cause.”).
12Id.
13Cooper Davis Act, S. 1080, 118th Cong., sec. 2(b) (ELL23280).
1418 U.S.C. §§ 2702–03.
15
Drug Enforcement Administration, EMOJI DRUG CODE DECODED (2021), available athttps://www.dea.gov/sites/default/files/2021-12/Emoji%20Decoded.pdf
16Oliver Haimson et al., Disproportionate Removals and Differing Content Moderation Experiences forConservative, Transgender, and Black Social Media Users: Marginalization and Moderation Gray Areas,Proceedings of the ACM (2021), https://dl.acm.org/doi/abs/10.1145/3479610.
9

For questions please contact Jumana Musa, National Association of Criminal Defense Lawyers,at jmusa@nacdl.org or Cynthia Roseberry, American Civil Liberties Union, atcroseberry@aclu.org.
Sincerely,
Advocacy For Principled Action In Government
American Civil Liberties Union
Center for Democracy & Technology
Defending Rights & Dissent
Due Process InstituteElectronic Frontier Foundation
Electronic Privacy Information Center
Government Information Watch
Innocence Project
Justice Strategies
The Leadership Conference on Civil and Human Rights
NAACP Legal Defense & Educational Fund, Inc.
National Association of Criminal Defense Lawyers
Organization for Identity & Cultural Development (OICD)
Restore The Fourth
Surveillance Technology Oversight Project