Lawfare and Information Operations

By Kurt Sanger

Mr. Kurt Sanger is a Judge Advocate with the United States Marine Corps

Kurt Sanger is a Judge Advocate with the United States Marine Corps. He received an LLM from Georgetown University Law Center and a JD from the Cardozo School of Law at Yeshiva University. The views presented are those of the writer and do not necessarily represent the views of the US Department of Defense and its components.

Democracies arrive to competition in the information environment with a distinct, significant, and unavoidable disadvantage to their adversaries.  This is not because their adversaries are undefeatable; it is because, in competing with adversaries, democracies may defeat themselves.

Based on the laws, values and traditions common to democratic societies, information and the people who deliver it are not only free, they are protected by their governments.  In the United States, extremely narrow categories of information are prohibited, and the limited class of information subject to content or dissemination regulation is still easily accessible.  In the struggle to protect U.S. citizens from foreign information operations designed to influence Americans, the laws designed to protect free speech for Americans also protect and empower U.S. adversaries.

Protection from adversaries is not the only aspect of information operations in which democracies find themselves disadvantaged by their laws, values and traditions.  They face additional challenges if they attempt to employ information deliberately to advance their goals. Democratic governments rely on the consent of their people.  In part, their power depends on their citizens’ notions of legitimacy, fairness and competency.  A government that manipulates information for its own purposes, even if focused outside their borders and solely on the leaders or citizens of an adversarial state, may call into question all information it shares.

Manipulating information also undermines the notion that a free society should not have to alter the truth in order to succeed.  The truth should be on a free society’s side.  To act discordantly is to admit otherwise and cedes moral high ground to autocrats who would enjoy seeing democracies play by their rules.

Autocrats need not worry about the consequences of their information operations in the same way as democracies.  Regarding their own populations, authoritarians already are capable of and expected to control and manipulate information to defend their regimes and policies.  Likewise, with regard to their information operations abroad, there is a preexisting expectation and tradition of dictators using information to diminish their adversaries, whether individuals, organizations, or states.  Dictators draw their power not from legitimacy or competency, but through control.  They accept or dismiss truth based on its utility.

Two democratic freedoms that information manipulators may take advantage of are protected by the First Amendment: freedom of speech, and the lesser known but concomitant and critical right to receive speech.  The U.S. Constitution does not protect the free speech rights of foreign individuals outside the U.S. However, everyone in the U.S., and U.S. citizens around the world, have a constitutionally protected right to hear from those foreign individuals.  The net effect of the First Amendment right to receive information is essentially to share free speech rights with foreigners under many circumstances.

Until recently, the impact of foreign-sourced information operations was relatively limited. In the years before World War II, for example, the U.S. did not have to worry about its citizens receiving propaganda from German newspapers because those papers were rarely available, and almost never in real time, to U.S. citizens.  The internet changed that.  Now, with influencers of all kinds making use of widely available capabilities to create and distribute content, anyone with an internet connection can easily access almost any news source from any place in the world.  Information operations anywhere can influence events everywhere.

With laws, traditions and values protecting information, its creators and disseminators – making little distinction between friends and foes – what is a democracy to do in the face of adversarial information operations?  Can anything be done?

One response could be to change laws and adjust values to enable a democratic government’s greater control over the types of information available to the public.  This is the easiest answer, and the most direct method to contend with outsiders who try to influence another nation’s politics. However, were a democracy to prohibit broadly the information its own citizens receive, it could lose the information war by its own hand.  If an adversary motivates a democracy to abandon one of its core values, perhaps the most fundamental of all values found in free nations, that democracy would be diminished.  So too would the government that chose this remedy be diminished, perhaps not only with regard to speech, but its ability to govern.

While U.S. law does not support much by way of prohibiting or regulating speech, there are options worth exploring.  Last year, a senior Department of Justice official stated that, in his view, the First Amendment does not provide a right to receive covert foreign propaganda. Leaders around the globe often comment on other nations’ policies in legitimate and valuable ways but doing so surreptitiously may be distinguishable from a legal standpoint, and thus be regulable.  Though this position is largely untested, there are Supreme Court cases supporting it. Lawmakers also may look to regulations of speech content or aspects of dissemination that already have survived legal challenges, applying to foreign influence operations rules previously demonstrated to be judicially palatable.  Certain speech has been regulated as to its time, place and manner of delivery, as well as speech related to commerce.  Ultimately, these issues likely would be challenged by First Amendment advocates, and federal courts may find them unconstitutional, but they provide a place to begin confronting the threat of foreign information operations without starting a slide down the slippery slope towards additional prohibitions.

On the offense, democracies must be beyond reproach if they choose to engage in information operations.  They must shield their own citizens from those operations, to the extent possible in the networked world, and use truthful, factual, verifiable information whenever possible.  Some audiences refuse to accept proof no matter how well founded, but democracies must nevertheless strive to ensure that their information is verifiable to reasonable and unbiased audiences. More than anything else, democracies must communicate through their actions.  Acting fairly, reasonably, and magnanimously is the best information operation a democracy can conduct.

Before arriving at any solution, democracies should reckon with the probable consequences of creating a defense to information operations through outlawing certain categories of information content or designing an offense that relies on delivering falsehoods to broad audiences.  A self-inflicted wound such as this would do far more damage than any nefarious foreign actor’s ideas.  Facing similar circumstances during the Cold War, U.S. Ambassador George Kennan recognized a peril greater than the red scare, and so should we recognize the same peril now: “Finally we must have courage and self-confidence to cling to our own methods and conceptions of human society. After all, the greatest danger that can befall us in coping with this problem of Soviet communism, is that we shall allow ourselves to become like those with whom we are coping.”

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