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By Katie Buehler ·
Law360 (July 13, 2023, 6:53 PM EDT) -- The U.S. Senate Judiciary Committee voted 16-5 Thursday to advance a bill that would require social media companies to report to the U.S. Drug Enforcement Administration the sale or distribution of illicit drugs on their platforms, with lawmakers vowing to give individuals the right to sue companies under the legislation. The Cooper Davis Act would require social media companies to report to law enforcement the sale or distribution of fentanyl, methamphetamine or counterfeit controlled substances conducted on their platforms when they obtain "actual knowledge" of such acts. The bill also gives the U.S. attorney general authority to bring criminal and civil claims against companies who fail to meet or properly comply with the reporting requirement. The bill is named after a Kansas teenager who died in August 2021 after taking a counterfeit prescription pill that was laced with fentanyl. He allegedly obtained the pill from a drug dealer he communicated with over Snapchat. A bipartisan group of committee members hailed the act Thursday as a way to help law enforcement crack down on the national opioid epidemic while holding some of the world's most powerful companies accountable. But others raised concerns about the bill's reach, as well as its limitations — issues supporters of the legislation promised to tackle through amendments before the bill receives a vote by the full Senate. One of those limitations is the inability for individuals to hold social media platforms accountable for allegedly harmful acts. The companies currently receive broad immunity from claims related to third-party content posted on their platforms under Section 230 of the Communications Decency Act. Sen. Lindsey Graham, R-S.C., the committee's ranking GOP member, expressed doubt that the Cooper Davis Act would have much effect on how social media platforms run their businesses, saying individuals should be able to hold the companies accountable in court. Graham has repeatedly told the Senate Judiciary that he plans to soon introduce legislation to repeal Section 230. "This is the one area of life in America where the courtroom door is closed to every American for no good reason," he said Thursday. Sen. Richard Blumenthal, D-Conn., suggested the act should be amended to allow the U.S. attorney general, state attorneys general and individuals to bring civil claims against platforms. Even though his amendment was ultimately struck down, Committee Chairman Sen. Dick Durbin, D-Ill., promised to work on an amendment incorporating that language into the bill while it is pending on the Senate floor. Durbin also told the committee he is open to incorporating amendments like the one offered by Sen. Jon Ossoff, D-Ga., which would've increased the act's criminal penalty for knowingly and willfully failing to report sales or distribution of illicit drugs from $190,000 for the first violation and $380,000 for subsequent violations to $1 million per violation. Ossoff's amendment, which wasn't adopted, would've also increased the act's civil penalty from between $50,000 and $100,000 to $5 million per offense. "What's going to change the conduct of the tech companies is if they face criminal and civil penalties for the trafficking of drugs," Ossoff said. "I don't think Meta is shaking in its boots about the current fine." Durbin explained he is more than willing to amend the bill once it's on the Senate floor, but he said his goal for Thursday was to just advance it out of committee. Other senators criticized the act for not addressing the root problem of the opioid epidemic, and for giving law enforcement and the social media companies too much power in their respective roles under the legislation. The Cooper Davis Act requires platforms to provide law enforcement with as much identifying information about the alleged perpetrator as possible, including their name, screen name, email address and IP address. But it leaves it to the platforms to decide whether they'll include additional information, including screenshots, the alleged perpetrator's geographic information and other data. Sen. Alex Padilla, D-Calif., questioned how the act would affect platforms who use encryption services and whether providing those services would be viewed as companies deliberately blinding themselves to potential criminal activity. He added that the legislation also puts users' privacy rights at risk by allowing the platforms to determine how much information to share with law enforcement agencies. "It compels and encourages technology companies to erode that privacy," he said, adding that the bill's penalties for noncompliance would make platforms "likely to err on the side of over-reporting and over-referring users to the DEA." Sen. Cory Booker, D-N.J., raised similar concerns. "The bill gives way too much power to already-too-powerful companies," he said. To address some of those concerns, Durbin provided amendments to the bill that would limit how long users' data remains in the hands of law enforcement. The act calls on the U.S. attorney general to limit the length of time for which reports are stored and the amount of content included in them to only what's necessary to carry out an investigation. Meanwhile, Sen. John Cornyn, R-Texas, was pessimistic about the overall impact this bill would have on the opioid crisis, telling his fellow committee members they shouldn't go home and tell constituents that they "got the job done." "This legislation does nothing to eliminate the source of the fentanyl," he said. "It's like dealing with a cow after it's already gotten out of the barn." --Editing by Scott Russell.
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