Balkinization: How US Law Harms the Fight Against Disinformation

How US Law Harms the Fight Against Disinformation

Jill Goldenziel

This post was co-authored by Jill Goldenziel and Manal Cheema. The post reflects the personal views of the authors and not of any arm of the U.S. government.

As candidates gear up for the 2020 election, disinformation campaigns are gearing up faster. Even before the 2016 election and the 2018 midterms, the United States has been grappling with its response to foreign disinformation campaigns that threaten to undermine the U.S. electoral process. They are perpetrated not only by foreign bots and trolls from states like Russia and Iran, but also U.S. persons.

Disinformation campaigns are now targeting 2020 Democratic candidates, who are grappling with how to respond. As a result, candidates are grappling with how to respond to this new, nefarious phenomenon. Joe Biden pledged that he would not use bot networks to spread disinformation about opponents. By contrast, President Trump recently said that he would welcome political campaign help from foreign actors.

The U.S. response to disinformation campaigns has been fragmented. As detailed in our article, The New Fighting Words: How U.S. Law Hampers the Fight Against Information Warfare, U.S. laws and jurisprudence protecting free speech and privacy were not designed for the technological realities of today. The United States’ own laws tie its hands in its fight against information warfare. Specifically, laws involving freedom of speech and information enable foreign actors to exploit our free information environment. The Privacy Act and related laws preclude a necessary interagency response to the threat of disinformation.

The United States must reform its laws and update its interpretation of the First Amendment to protect national security and the democratic process. Our Article explains how interpretations of the First Amendment, the Privacy Act, and other laws limit U.S. efforts to combat information warfare. It then proposes doctrinal and legislative reforms to improve national security while ensuring protection for civil liberties.

In short, the U.S. Supreme Court’s interpretation of the First Amendment does not apply well to the realities of political speech on the Internet and social media. Justice Kennedy has famously likened the Internet to “the new public square.” However, U.S. Supreme Court jurisprudence fails to consider the unique characteristics of social media that distort speech and allow foreign enemies to exploit the United States’ information environment. Moreover, the Court likens social media to traditional media without considering critical differences between them, such as the lack of editorial vetting.

Other legal factors hamper the U.S.’s ability to combat information warfare. For example, First Amendment doctrine protects false speech, which may include enemy disinformation. Furthermore, while Russian disinformation efforts may have caused distrust of the U.S. Government and individual citizens, this would not legally qualify as incitement, one of the few exceptions to First Amendment protection. Meanwhile, the Privacy Act and other surveillance laws forbid the government from collecting data relating to U.S. persons’ First Amendment activities. These acts include an exception for law enforcement agencies, but not national security actors like the State Department, impeding a whole-of-government approach to combatting information warfare.

So how can the United States deconflict its legal environment to better combat information warfare? First, the Supreme Court must revisit its First Amendment doctrine to account for the realities of the Internet and social media. Second, the United States must reform its laws to enable a whole-of-government approach to fighting disinformation, with a primary focus on civilian government agencies.

Supreme Court doctrine must be revised to treat online platforms and social media companies as distinct based on their unique functions. Legal doctrine must recognize that preserving the integrity of the electoral process is a national security interest and integral to the First Amendment itself. To be clear, we do not argue that the First Amendment is outdated or should be changed. Instead, we argue that the First Amendment must be reinterpreted to reflect the reality of the speech environment and to continue to protect the values embedded within the Constitution.

Legislative reforms are also necessary to enable a whole-of-government approach. Laws must be devised that prescribe civil or criminal penalties reckless, false speech intended to undermine the integrity of the electoral process. Authorities for surveillance must be amended to allow for a narrowly tailored national security exception with appropriate safeguards for civil liberties. In a related article, Protecting First Amendments in the Fight Against Disinformation: Lessons Learned from FISA, we explain how to balance the government’s need for information with First Amendment rights and privacy protections. Existing laws, like the Foreign Agent Registration Act must be aggressively enforced to deter foreign actors seeking to intervene in the electoral process.

Our article also weighs the benefits and drawbacks of having social media companies self-regulate to fight disinformation. First, while the U.S. Government may encourage social media companies to self-regulate, they must not mandate them to do so to avoid censorship and infringement on corporations’ First Amendment rights. Asking companies to censor content without any form of due process removes transparency and could chill speech. Instead, the U.S. government should encourage self-regulation by social media companies as a form of good corporate citizenship and to build trust in their user base. Twitter, for example, has been widely successful in detecting and removing disruptive fake accounts from their platforms. Meanwhile, Facebook has lost some of its U.S. user base due to distrust of the company.

Disinformation threatens the existence of a well-informed public, and therefore, democracy itself. As Justice Robert Jackson aptly noted, the Constitution should not be a suicide pact. The time has come for the U.S. to reform its laws to improve the fight against foreign information operations while protecting civil liberties and the electoral process. When combating enemy information warfare, the United States must take care not to unduly infringe on the democratic freedoms of its own people. As malignant disinformation campaigns continue to escalate their efforts for the 2020 election, the United States must reform laws, doctrine, and policies to protect national security and the democratic process.

Posted 12:19 PM by Jill Goldenziel [link]