Earlier this year, Senator Diane Feinstein (D-CA) inserted language into the annual Intelligence Authorization bill that would have forced social media companies like Twitter to act as de facto law enforcement agents and censors of the users of their service. The language in question read as follows:
(a) Duty To report.—Whoever, while engaged in providing an electronic communication service or a remote computing service to the public through a facility or means of interstate or foreign commerce, obtains actual knowledge of any terrorist activity, including the facts or circumstances described in subsection (c) shall, as soon as reasonably possible, provide to the appropriate authorities the facts or circumstances of the alleged terrorist activities.
(b) Attorney General determination.—The Attorney General shall determine the appropriate authorities under subsection (a).
(c) Facts or circumstances.—The facts or circumstances described in this subsection, include any facts or circumstances from which there is an apparent violation of section 842(p) of title 18, United States Code, that involves distribution of information relating to explosives, destructive devices, and weapons of mass destruction.
(1) to monitor any user, subscriber, or customer of that provider; or
(2) to monitor the content of any communication of any person described in paragraph (1).
In a social media context, what constitutes “terrorist activity”? And how would a social media company “obtain knowledge” of undefined “terrorist activity” absent active monitoring of all of is users?
Feinstein’s proposal was constitutionally dubious and wildly impractical. It also generated strong opposition from social media and tech companies, the privacy and civil liberties community, and some of her own Senate colleagues.