Kurt Sanger

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.