Cooper Davis Act: Another Attempt By Congress To Regulate That Which They Don’t Understand

There are all sorts of anti-internet bills making the rounds lately, and one of the many on the docket and apparently set to move quickly is the Cooper Davis Act, which aims to create a mandatory reporting rule for websites where promotion of the sale of illegal drugs may occur. As with basically any law named after someone, the details of what happened to that individual are, in fact, tragic:

The bill is named after 16-year-old Cooper Davis, a Kansas City teen who died in August of 2021 when he split what he thought was a Percocet pill with his friends. That Percocet pill ended up being laced with fentanyl causing Davis’s death.

Of course, as researchers have noted, bills named after tragic victims are generally bad news. As that article points out, they are the kind of “but something must be done!” laws that may be put in place with the best of intent, but usually without much understanding or concern for the actual impact.

Bills named after sympathetic victims are the worst form of knee-jerk lawmaking, but it’s a surefire political vote-getting device. A politician holds a press conference standing next to the victim’s family; this gets the bill on the news. Because of terse media coverage, voters think said law will actually do something for a victim or potential future victims, no matter what the real legal changes are.

And these bills do get passed. Study’s show that if you name a law after a victim, even if the law is a mess and won’t help, they get a lot more public support.

I’m sure that Senator Roger Marshall means well with the Cooper Davis Act, but the bill is a complete mess. As EFF’s Mario Trujillo notes, this bill basically turns messaging services and social media into DEA informants.

Under the law, providers are required to report to the DEA when they gain actual knowledge of facts about those drug sales or when a user makes a reasonably believable report about those sales. Providers are also allowed to make reports when they have a reasonable belief about those facts or have actual knowledge that a sale is planned or imminent. Importantly, providers can be fined hundreds of thousands of dollars for a failure to report.

Providers have discretion on what to include in a report. But they are encouraged to turn over personal information about the users involved, location information, and complete communications. The DEA can then share the reports with other law enforcement.

The law also makes a “request” that providers preserve the report and other relevant information (so law enforcement can potentially obtain it later). And it prevents providers from telling their users about the preservation, unless they first notify the DEA.

In many ways, this is similar to the CyberTipline for CSAM that requires websites to report details if they come across child sexual abuse material. But, CSAM is strict liability content for which there is no 1st Amendment protection. Demanding that anything even remotely referencing an illegal drug transaction be sent to the DEA will sweep up a ton of perfectly protected speech.

Worse, it will lead to massive overreporting of useless leads. I’ve mentioned just recently that we get a ton of attempted spam comments here at Techdirt, over a million in just the last six months alone. A decent percentage of these appear to be pushing what are likely to be illegal drugs. Now, we catch the vast majority of these in the spam filter, and they never reach the site. And, I don’t think a mere spam comment alone would reach the level of knowledge necessary to trigger this law, but the point is that there’s potential that our lawyers would warn us that to protect ourselves from potentially ruinous liability for failing to report these spam messages to the DEA, they’d recommend we basically flood the DEA with a bunch of the spam messages we received just to avoid the risk of liability.

I don’t see how that helps anyone. It doesn’t help us. But, more importantly, it wouldn’t help the DEA, and would simply increase the amount of useless noise, rather than providing useful leads for the DEA to work on actual risks to safety.

And, of course, this bill then becomes a model to make websites narc on everyone.

As Trujillo explains:

Most troubling, 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. 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? As we’ve argued many times before, once the framework exists, it could easily be expanded.

But, from what I’ve heard, Congress is ready to roll with the Cooper Davis Act, because rather than considering how things actually work, they want to be able to claim they’ve “fixed” the problem of illegal drug sales online, when all they’ve really done is create a headache for everyone and flooded the DEA with useless leads.