Perpetrators of the horrific events that took place at the Capitol on January 6 had a clear goal: to undermine the legitimate operations of government, to disrupt the peaceful transition of power, and to intimidate, hurt, and possibly kill those political leaders that disagree with their worldview.
These are all crimes that can and and should be investigated by law enforcement. Yet history provides the clear lesson that immediate legislative responses to an unprecedented national crime or a deeply traumatic incident can have profound, unforeseen, and often unconstitutional consequences for decades to come. Innocent people—international travelers, immigrants, asylum seekers, activists, journalists, attorneys, and everyday Internet users—have spent the last two decades contending with the loss of privacy, government harassment, and exaggerated sentencing that came along with the PATRIOT Act and other laws passed in the wake of national tragedies.
Law enforcement does not need additional powers, new laws, harsher sentencing mandates, or looser restrictions on the use of surveillance measures to investigate and prosecute those responsible for the dangerous crimes that occurred. Moreover, we know from experience that any such new powers will inevitably be used to target the most vulnerable members of society or be used indiscriminately to surveil the broader public.
EFF has spent the last three decades pushing back against overbroad government powers—in courts, in Congress, and in state legislatures—to demand an end to unconstitutional surveillance and to warn against the dangers of technology being abused to invade people’s rights. To take just a few present examples: we continue to fight against the NSA’s mass surveillance programs, the exponential increase of surveillance power used by immigration enforcement agencies at the U.S. border and in the interior, and the inevitable creep of military surveillance into everyday law enforcement to this day. The fact that we are still fighting these battles shows just how hard it is to end unconstitutional overreactions.
Policymakers must learn from those mistakes.
First, Congress and state lawmakers should not even consider any new laws or deploying any new surveillance technology without first explaining why law enforcement’s vast, existing powers are insufficient. This is particularly true given that it appears that the perpetrators of the January 6 violence planned, organized, and executed their acts in the open, and that much of the evidence of their crimes is publicly available.
Second, lawmakers must understand that any new laws or technology will likely be turned on vulnerable communities as well as those who vocally and peacefully call for social change. Elected leaders should not exacerbate ongoing injustice via new laws or surveillance technology. Instead, they must work to correct the government’s past abuse of powers to target dissenting and marginalized voices.
As Representative Barbara Lee said in 2001, “Our country is in a state of mourning. Some of us must say, let’s step back for a moment . . . and think through the implications of our actions today so that this does not spiral out of control.” Surveillance, policing, and exaggerated sentencing—no matter their intention—always end up being wielded against the most vulnerable members of society. We urge President-elect Joe Biden to pause and to not let this moment contribute to that already startling inequity in our society.
