Using Law to Confront Malign Foreign Influence

Expert View

Peter Pascucci is a commander in the United States Navy and Kurt Sanger is a lieutenant colonel in the United States Marine Corps. 

They have been legal advisors to senior decision makers on military cyberspace operations and both are 2015 graduates of the Georgetown University Law Center National Security Law program. 

These opinions are their own and do not necessarily reflect official positions of the Department of Defense or any other U.S. Government organization.

OPINION — Since 2016, the peril of foreign malign actors attempting to influence western democracies’ politics has become increasingly apparent.  Reports emerge almost daily alleging that operatives on behalf of Russia, China, and Iran were taking steps to influence the 2020 U.S. elections.  Russia is alleged to have done likewise in multiple European countries. The period between U.S. presidential elections will offer no respite, as malign influence actors seek to shape enduring political and social narratives around the globe to destabilize nations while consolidating their own power and expanding their regional and global influence.

The risk to democracy is exacerbated by two of the most essential aspects of democracy, the freedom to speak and the freedom to receive information.  Protecting the freedom to exchange ideas is a primary mission of democratic governments, but with advancing technology and the ability of foreigners to reach domestic audiences, without filter or verification of accuracy with respect to factual matters, and at little cost, the free exchange of ideas now raises challenges to the systems that guarantee that freedom.

Taking the 2016 U.S. presidential election as an example, although not tested in court, it is unlikely that the U.S. Government could have banned any of the speech that malign Russian actors are alleged to have injected into the U.S. political discourse. While foreign speakers are not entitled to constitutional protection, the Supreme Court routinely has protected U.S. persons’ rights to receive almost any information from foreign sources, even if that information may be characterized as propaganda, falsehood, or otherwise is of dubious veracity or value. Though not demonstrated to be completely analogous, one may assume that any speech protected from the speaker’s perspective will be protected on the receiving end. Other than speech that incites immediate illegality, or media that includes child pornography, little else may be restrained.

The right to receive speech, regardless of its source or in most cases its content, significantly limits potential U.S. government responses to foreigners attempting to influence elections.  Government attempts to regulate the content of speech receive strict scrutiny in the judicial system, the highest level of burden to overcome. It is especially exacting when the speech involves political or electoral matters.  Only restrictions directly related to the speech in question that are narrowly tailored survive judicial review. To foil foreign malign actors’ influence operations, the U.S. must design unique solutions that address the threat without undermining the fundamental features of democratic life.

In order to pass constitutional muster, and preserve the social, cultural, and political benefits of the unburdened exchange of ideas, the solution to foreign malign influence operations must be shaped around the broad boundaries protecting speech. A successful framework can be developed using aspects of the Foreign Agent Registration Act (FARA), and the Stand by Your Ad (SBYA) provision of the McCain–Feingold Act.

The FARA requires certain foreign actors and their agents to identify themselves and their work on behalf of foreign interests by registering with the Department of Justice, making public filings revealing their relationships, and adding a disclosure to their public work identifying their principals. The SBYA requires campaign ads to include a statement and picture of the politicians sponsoring those ads. Between the two laws’ transparency and accountability mechanisms, a statute can be crafted that effectively confronts foreign malicious influence actors and protects First Amendment values.

As written, the FARA applies only to agents physically located in the United States.  To modernize the law and account for advancing technology, this aspect of the Act would need to be modified to include foreign agents acting outside the U.S. who are intentionally reaching audiences inside the U.S. The reality is that ideas can emigrate from any country’s networked system and arrive in any country’s networked system.  Our devices essentially invite the presence of networked individuals and entities around the globe inside our borders, as well as inside our homes, our pockets, and our minds.  If those individuals or entities wish to have a say in American politics, it is reasonable, and constitutional, to require them to identify themselves and their foreign affiliations. Applying the requirements of SBYA to foreign-generated political material would support the transparency needed to help enfranchised U.S. voters to evaluate that material.

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The law would not apply to every statement by a foreigner related to U.S. political matters, and there is no need to regulate private conversations.  Among other limits, regulated activity could be restricted to purchased advertisements or messages sent to a certain threshold number of recipients or those where the author or poster has a threshold number of followers.

The law also would not apply to genuinely sourced foreign material. If the same message originated with two separate foreign actors, the first of whom clearly and honestly identified itself, the second either failing to identify itself or misattributing its identity, only the second actor could be sanctioned.

The measure is primarily administrative, requiring only some form of registration with appropriate U.S. government organizations, or disclosure of identity. However, if a foreign actor fails to register or disclose, the law could enable civil and criminal penalties for the actor.  The law could also establish user verification requirements for social media companies, and liability for those that fail to meet those requirements. A step further, and deserving additional constitutional examination and public debate, the law could permit the government to require removal of covertly sourced foreign political material from platforms.  This extreme remedy requires a broader constitutional analysis and warrants a public conversation about the roles and responsibilities of government, as well as the responsibility of U.S. citizens and organizations, to make informed choices regarding the veracity and reliability of information they receive and transmit.

Based on reports from last year’s federal election, it appears that foreign influence campaigns may have paled in comparison to similar efforts directed by U.S. citizens, whose speech and right to receive information are constitutionally protected.  If foreign influence campaigns had limited impact, or represent a small percentage of similar activity, that is no reason to allow them to continue without opposition.  Forecasting that these actors will not become more effective is a dangerous assumption; they should be opposed now with every tool legally available to the U.S. government.  Malign foreign actors may use their relatively minor efforts in one election to perfect broader efforts in future elections.

Further, were the effort to counter foreign influence only a symbolic effort, outside political actors should know that they do not have equal status to U.S. voters in the American political system, and thus cannot act in the same manner.  Even if a law countering foreign covert influence went unused during its infancy, the enactment of such a law would be a signal to U.S. citizens and outsiders who would seek to harm our democratic institutions that the United States takes such interference seriously and that there will be consequences. A U.S. domestic law might also provide the basis for establishment of international norms, and eventually customary international law.

As a final matter, it must be noted that the United States has been accused of acting covertly in other nations’ elections throughout its history. If the U.S. seeks to counter foreign political influence in its own country, it also must seek to set the example.  It cannot act surreptitiously in another nation’s politics if it expects others to refrain from acting in U.S. elections.  While past actions cannot be undone, they can be discontinued.  Regardless of the result of the debate within U.S. society, American voters must learn from recent history and take steps now to better prepare for future elections or accept that outside influence will alter the nature of American democracy.

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