While the country is facing a daily Covid-19 death toll in the thousands, and the coronavirus outbreak snakes its way inside the executive branch, Congress is currently considering a vast expansion of the Justice Department’s power over online platforms and the people who use them. Should these measures pass, Americans’ web searching and browsing histories could be collected by the FBI without a warrant. But that’s just the pre-eminent concern. Should Congress grant the DOJ all the power they are seeking, users may also lose access to apps that use end-to-end encryption (like Signal and Facebook Messenger), and the kinds of content they can currently post online may find itself subject to additional moderation and monitoring.
The exposure of search and browser histories would be the result of an amendment to the PATRIOT Act, passed in 2001 and up for reauthorization. As reported by Spencer Ackerman at The Daily Beast, Senate Majority Leader Mitch McConnell is pushing for an amendment extending those powers to the FBI, “under cover of redressing what President Donald Trump and his allies call the FBI’s ‘witch hunt’ over collusion with the Kremlin.” The Patriot Act requires materials that are “relevant” to an ongoing investigation be turned over; McConnell’s amendment expands that, as Democratic Senator Ron Wyden told The Daily Beast, so that “[Attorney General Bill] Barr gets to look through the web browsing history of any American—including journalists, politicians, and political rivals—without a warrant, just by saying it is relevant to an investigation.”
As for the possibility that Congress may substantially diminish the rights we currently enjoy in terms of content creation and user encryption, that might come about through the passage of the EARN IT Act—“Eliminating Abusive and Rampant Neglect of Interactive Technologies. Introduced by Republican Senator Lindsey Graham, with the support of Democratic senators such as Richard Blumenthal and Dianne Feinstein, the new bill could threaten online privacy by requiring online platforms like Facebook to “earn” immunity from liability for user-generated content—something they already are granted under law—by meeting a new set of “child safety” requirements. Compliance in these matters would, once again, be overseen by the Attorney General. These requirements would likely necessitate companies monitor their users, including what they share in private or encrypted communications, to ensure that child sexual abuse material (child pornography) is not being disseminated on their platforms. Barr would have authority over the guidelines as well, which are not enumerated in the bill.
“Together, EARN It and Mitch McConnell’s PATRIOT Act amendments would give the most corrupt attorney general of our lifetime unprecedented ability to pry into everything Americans do and say online,” Senator Wyden told The New Republic in a statement. “It would be an unconscionable mistake for Democrats to hand Donald Trump and Attorney General Barr these sprawling powers, especially during the Covid-19 crisis, when Americans are spending more and more time on our devices.”