—Jill Goldenziel, Marine Corps University-Command and Staff College; Fox Leadership International Affiliated Scholar, University of Pennsylvania. Professor Goldenziel’s views do not represent those of her University or any other arm of the U.S. Government.
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]
Freedom of speech and expression and the right to privacy are two constitutional rights that democracies hold most dear. These freedoms are entrenched in the constitutions of most democracies around the world. Freedom of speech is especially prized in the United States, which has some of the least restrictive laws on freedom of speech in the world. The right to privacy is also especially important in democracies. In Europe, the right to privacy has been a hot-button legal issue in the context of the Internet, and a related “right to be forgotten” has been developing. While the right to privacy is not explicitly enumerated in the U.S. Constitution, it has developed in interpretation of many Constitutional amendments, including the Fourth, Fifth, Ninth, and First. U.S. citizens are fiercely protective of their right to privacy against government interference of their freedom of speech. The Privacy Act of 1974, enacted while Americans recoiled from Watergate and the Soviet government’s efforts to surveil Soviet citizens, places significant restrictions on the U.S. Government’s ability to collect data related to the First Amendment activities of U.S. persons.
As detailed in my new article, “The New Fighting Words: How U.S. Law Hampers the Fight Against Information Warfare,” (with Manal Cheema), enemy states are now weaponizing these prized freedoms against democracies. Russia’s information warfare campaigns against Estonia, the Ukraine, and the U.S., for example, have been well publicized. According to the U.S. Department of Justice, foreign-influenced operations like Russia’s include covert actions intended to “sow division in our society, undermine confidence in democratic institutions, and otherwise affect political sentiment and public discourse to achieve strategic geopolitical objectives.” Well before the 2016 U.S. Presidential election, Russia was using online sources disguised as news outlets to produce and distribute fake news, targeting key voter groups. Russia’s sophisticated information warfare campaign against the integrity of the U.S. electoral process continues as it seeks to influence the 2020 presidential election.
Democracies’ laws involving freedom of speech, expression, and information and the right to privacy, tie their hands in the fight against information warfare. An example from the U.S. illustrates this point. In 2016, the U.S. State Department planned a program to identify online influencers who were spreading Kremlin messages and use counterarguments against them. However, the Privacy Act of 1974 restricts government data collection related to U.S. persons’ exercise of their First Amendment rights. The program might inadvertently collect U.S. persons’ data, and it did not fall under the Act’s law enforcement exceptions. State Department lawyers quashed the program, reasoning that collection of tweets and retweets would qualify as data collection related to U.S. persons’ First Amendment rights.
The Article argues that the United States must reform its laws and update its interpretation of the First Amendment to protect national security and the democratic process. It explains how interpretations of the First Amendment, the Privacy Act, and other laws present major hurdles to U.S. efforts to fight information warfare. It then proposes doctrinal and legislative reforms to improve national security while ensuring protection for civil liberties. As democracies worldwide increasingly face the threat of information warfare, the article’s analysis of the appropriate balance between national security and protection of civil liberties is broadly applicable to many other states.
In short, the article argues that 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,” but the Internet and social media are unlike the much-hallowed, metaphorical public square with its Millian marketplace of ideas. U.S. Supreme Court jurisprudence fails to consider the unique characteristics of social media that distort free speech and allow foreign enemies to exploit the U.S.’s information environment. U.S. Supreme Court doctrine is rooted in the idea that true speech should be used to counter false speech: a doctrine known as counterspeech. However, speech and counterspeech are not heard and understood on social media in the same way that they are in the traditional public sphere. For example, recent social science experiments have cast doubt on the effectiveness of counterspeech, especially in the social media context.
Moreover, Supreme Court jurisprudence erroneously likens social media to traditional media. For example, traditional news platforms include editorial vetting. Editors and journalists from traditional media outlets are generally professionalized and trained to take seriously their important role of providing objective information to the members of a democratic society and playing a check on government by ensuring transparency. Social media has little to no editorial vetting. Nearly anyone can be a journalist on the Internet and social media, regardless of training. These differences make much Supreme Court jurisprudence inapt for the social media context.
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. While Russian disinformation efforts may have incited violence in the U.S. in the colloquial sense, most enemy information warfare and propaganda efforts would not qualify as incitement under Supreme Court precedent. The “imminence” element of the incitement standard is challenging to apply in the online context—presenting another example of the difficulty of applying prior free speech jurisprudence to online platforms. Also, 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 but not national security actors like the State Department, impeding a whole-of-government approach to combatting information warfare.
How can democracies deconflict their legal environments to better combat information warfare? In the U.S. context, we argue that Supreme Court doctrine should be revised to treat online platforms and social media companies as distinct entities based on their unique functions. Moreover, Supreme Court doctrine should be reformed to recognize that preserving the integrity of the electoral process is a national security interest and integral to the First Amendment itself. First Amendment jurisprudence has always given the highest protection to political speech because of its importance to the political process; ergo, it follows that the First Amendment should protect the integrity of the electoral process itself. Congress should thus enact legislation that would balance protecting the national security interest in preserving the integrity of the electoral process with U.S. persons’ First Amendment and privacy rights.
In a landmark decision prohibiting the use of harsh physical methods during questioning of suspected terrorists, Israeli Supreme Court Justice Ehud Barak famously wrote that “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand.” Barak argued that preserving the rule of law and civil liberties were part and parcel to national security and strengthened the spirit of democracies. Indeed, when combating enemy information warfare, democracies must take care not to unduly infringe on the democratic freedoms of their own citizens. To do otherwise would be to crush the spirit of societies that have always thrived on free speech and information. The U.S. and other democracies must adopt new laws to better combat enemy information warfare while still protecting civil liberties. The very meaning of liberal democracy may be at stake.
Suggested citation: Jill Goldenziel, How Information Warfare Challenges
Liberal Democracies, Apr. 24, 2019, at: http://www.iconnectblog.com/2019/04/how-information-warfare-challenges-liberal-democracies/
 U.S. Dep’t of Just., Report of the Attorney General’s Cyber Digital Task Force 1 (July 2, 2018) [hereinafter Cyber Digital Task Force Report].
 Adam Entous, Ellen Nakashima, & Greg Jaffe, Kremlin Trolls Burned Across the Internet as Washington Debated Options, Wash. Post (Dec. 25, 2017), https://www.washingtonpost.com/world/national-security/kremlin-trolls-burned-across-the-internet-as-washington-debated-options/2017/12/23/e7b9dc92-e403-11e7-ab50-621fe0588340_story.html.