Guilt by association is a relatively modern concept. Back in the olden days, people were free to fraternize with criminals and terrorists, as that was our First Amendment right.
This was primarily a consequence of the unreasonable burden of trying to police such activity. A self-interested government tries to maximize economic output, to generate more tax dollars to pilfer. A ban on doing business with Bad Guys imposes transaction costs, as every business would have to conduct a background check before accepting a customer.
In fact, the government was so adamant in prioritizing free-market trade that even social justice warriors were told to stand down. In 1966, the NAACP tried to organize a boycott of racist businesses in Claiborne County, Mississippi. The merchants sued for tortious interference (the boycott interfered with the merchants’ business relationship with their customers) and won in the Mississippi Supreme Court1. BUT! In 1982, the US Supreme Court reversed that decision.
A lot happened between 1966 and 1982. Information moved from filing cabinets to IBM mainframes. Businesses began collecting vast quantities of location data, spending history, and demographic information, all in a conveniently searchable database.
By 1970, it was no longer unreasonable to expect banks to record the source of customer funds. So money laundering laws were invented to create Guilt by Association. It costs nothing to deputize the banks, and the War on Drugs is more important than our First, Fourth, and Fifth Amendment rights.
The internet further changed our notions of indirect liability. Lack of knowledge has always been an affirmative defense to possession of illegal contraband (“These aren’t my pants, officer. I had no idea there was a sack of freebase in the back pocket!”).
But that doesn’t work if you’re an internet service provider with activity logs. If illicit data passes through your servers, you knowingly possess that data. By 1998, “I had no idea my customer was downloading Metallica bootlegs” was not an affirmative defense2.
Anything that can be deputized will be deputized. We take it for granted that businesses know about every criminal that uses their service. But wait — Big Tech companies have made a business of predicting exactly what people want. It’s no longer unreasonable to expect companies to detect when people are wanting to do Terrorism.
That was the justification for the NSA’s warrantless wiretapping after 9/11. We were outraged when word first got out, but now it’s accepted as a part of life. In fact, we literally demand that social media platforms police people who think Bad Thoughts.
Laws are a codification of social norms. If technology changes those norms, then it’s inevitable that laws soon follow.
“Federal law enforcement is currently working to identify any suspected extremists who may pose a threat at the planned armed demonstrations.” —FBI Bulletin, January 12 2021
Preemptive policing! Lock up those criminals before they even commit a crime. You want to stop Domestic Terrorism, don’t you?`