War may be the health of the state, as New Republic contributor Randolph Bourne proclaimed long ago, but the American surveillance state can grab any available pretext for its steady march into whatever remains of our private lives. As the Covid-19 crisis has confined much of the American public in their homes, we are spending more and more time online—and so President Trump’s Justice Department has seized this moment to obtain a vast expansion of its domestic powers at the behest of an obsequious Congress.

The most immediate pretext is the reauthorization of the 2001 Patriot Act. As New Republic staff writer Melissa Gira Grant noted in an analysis earlier this week, Senate Majority Leader Mitch McConnell is pushing an amendment that would grant the FBI warrantless spying on Americans’ online activities. Congress is also considering a parallel online surveillance measure ostensibly targeting the digital traffic in child pornography—but like precursor measures to curtail digitally enabled sex work, this legislation (known as the EARN IT Act) will likely provide a virtual open door to federal agents listening in on encrypted communications services such as WhatsApp and Facebook Messenger. The combined impact of these measures would be to enshrine Attorney General William Barr, who has already distinguished himself as the most corrupt holder of this critical post in modern history, as our national surveillance czar, with no practical curbs on his power or authority.

A bipartisan amendment to thwart McConnell’s wishes, and thus prevent the DOJ’s power grab, failed by a single vote on Wednesday—thanks in no small part to the inexplicable no-shows of Washington Democratic Senator Patty Murray and Vermont Independent Senator Bernie Sanders. The Senate has yet to reauthorize the Patriot Act in full, and the EARN IT Act remains in committee, but we’re on the cusp of an age when “Americans’ web-searching and browsing histories could be collected by the FBI without a warrant,” Grant writes. “But that’s just the preeminent concern.” Under the provisions of EARN IT, “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 themselves subject to additional moderation and monitoring.”

And just as the brewing war on terror supplied the rationale for rampant government surveillance of private communications of American citizens, so has the rhetoric of the sex-trafficking culture wars provided the alibi of first resort for the migration of state surveillance into the formerly secure realm of encrypted digital apps. EARN IT, which is the P.R.-themed acronym for the Eliminating Abusive and Rampant Neglect of Interactive Technologies Act, seeks on paper to further an aim no one could object to: to prosecute and shut down the online traffic in child porn. But as is often the case with measures that abridge civil liberties, the devil here is in the details—and the details are particularly appalling. The legislation, Grant writes, works to rein in 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 that 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.

Just ahead of Thursday’s vote, Oregon Democratic Senator Ron Wyden, who sponsored the failed Senate amendment, explained in a statement to TNR that the fallout from these wrongheaded bills will be severe: “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 we do and say online.”

Particularly in view of Barr’s shameful handling of the Michael Flynn prosecution and the sentencing of Trump campaign crony Roger Stone, the vast expansion of the DOJ’s surveillance authority could not come at a worse time, Grant notes. And as a consequence of the coronavirus lockdown, Barr and his minions will have a wealth of material to sift through. “In all likelihood, the pandemic means more and more of our lives will be led online,” she writes. “To further expose our lives to Bill Barr’s corrupt and compromised Justice Department is a door opening to nothing good.” Now that this exposure is a fait accompli, it appears that civil liberties will be another collateral casualty of the Covid-19 age.

—Chris Lehmann, Editor