Censorship Proposal Opposed by Coalition Fails in U.S. Senate
Fritz Mulhauser | July 28, 2023 | Last modified: July 29, 2023
The D.C. Open Government Coalition and over 50 other groups joined a July 19 letter to the U.S. Senate expressing opposition to a censorship proposal offered by Senators Amy Klobuchar (D-Minn.) and Ted Cruz (R-Tex.) as an amendment to the FY24 National Defense Authorization Act (bill S. 2226).
This and almost 1,000 other amendments proposed for the must-pass bill were never considered as the Senate completed action Thursday (27) evening.
The internet censorship amendment, Senate Amendment 218, was largely identical to the Judicial Security and Privacy Act that was slipped in at the last minute to last year’s NDAA, but this amendment focused on Congress, not federal judges. See critical analysis of that measure here.
The amendment that failed contained again serious problems that undercut its apparent intention of addressing security and privacy issues regarding elected leaders and those closely associated with them.
The letter, drafted by Demand Progress, explained that the signers “are deeply concerned this proposal will enable corruption to flourish undetected and severely chill press reporting on congressional affairs generally, while providing a mirage of security to lawmakers and their loved ones. These flaws also directly conflict with the cherished values and freedoms that are vital to our democracy, including government transparency, accountability, free expression, and freedom of the press.”
Amendment 218 would have allowed Members of Congress to compel the censorship of a broad range of information whose publication is protected by the First Amendment—including the types of information routinely reported by journalists, government watchdogs, and ordinary citizens. This is precisely the information necessary for the American public to evaluate lawmakers’ adherence to laws and ethical standards, as well as their policy promises to their constituents.
Specifically, the amendment would have empowered a range of individuals connected to Members of Congress to order websites and data brokers to delete information from the digital public domain and from databases, backed by court order. The sweepingly broad categories of information subject to coerced deletion would have included information about the lawmakers or their spouses, siblings, parents, or anyone else living in their household, including information already publicly available or easily observed by anyone out in public. This includes their home address, addresses of other residences, vehicle license plate number, and whereabouts.
Washington, D.C., journalists could have been subjected to orders to delete any reference to the address of D.C. Delegate Eleanor Holmes Norton, whose home on Capitol Hill can be easily located in online D.C. voter records.
“We ask you to instead work with us to truly improve the privacy and security protections available to all Americans while making good on our shared ideals of an open and honest Congress that is accountable to the American people.”Coalition Letter to U.S. Senate, July 19, 2023
Though both Senators authoring the amendment are attorneys, the proposal appeared to conflict with Supreme Court precedent that prohibits censorship of publication of truthful information. It also left open awkward loopholes that would plague implementation such as an exemption for major data brokers. It also included undefined terms such as another exemption for publication on a “matter of public concern” that could take years of litigation to sort out. A New Jersey equivalent of the earlier Judicial Security and Privacy Act (as applied to law enforcement officials there) faces a court challenge by the ACLU now.
These laws and proposals respond to violent and tragic incidents in recent years. No public officials should live in fear as they do their work, but ill-designed and largely symbolic measures that infringe civil liberties are no answer.