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Sen. Feinstein Shouldn’t Make Tech Companies Do the Government’s National Security Job for It

Sen. Dianne Feinstein (D-Calif.)
Sen. Dianne Feinstein (D-Calif.)
Michael W. Macleod-Ball,
First Amendment Advisor,
ACLU Washington Legislative Office
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December 8, 2015

When a legislator offers a bad legislative idea, I love it when the outcry is so loud, so immediate, that it falls off the radar with nary a whimper.

That was the case this summer when Sen. Dianne Feinstein (D-Calif.) tried to fold an amendment into the Intelligence Authorization bill that would have required technology companies to report online ”terrorist activity.” Sure, it sounds like a good idea, but as my colleague Gabe Rottman wrote, the mandate was incredibly vague and would have encouraged companies to report online activity of wholly innocent individuals who had no connection to terrorism whatsoever. The provision was quietly removed from the bill due to outcry from companies, free speech advocates, and even certain politicians.

It’s a mistake to require social media companies to act as arms of the national security state.

You’d think that would be the end of it. But here’s what I don’t like so much about bad legislative ideas: When they turn up like a bad penny, especially at times of crisis when politicians think they can ram through a proposal that couldn’t pass at a time when cooler heads prevail.

But, determined to regurgitate her proposal in the wake of the terrible attacks in Paris and San Bernardino in recent weeks, Sen. Feinstein just introduced a standalone measure with precisely the same language that was rejected over the summer.

It’s a mistake to require social media companies to act as arms of the national security state. It’s not their job. It’s not what they do best. The government already monitors much of this information, since so much social media content is in the public domain already.

This proposal failed once when everyone was thinking rationally about the risks of terrorist attacks. We shouldn’t let the passions of the moment direct us down a different path — one that won’t solve the terrorist problem but will impact the speech rights of untold numbers of wholly innocent social media users.

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