We live in an era where online disinformation sometimes — fortunately very rarely — sparks Americans to do bad things. A few people believe things planted by unknown persons with no regard for veracity on the Internet or social media. In an era where insane readers strap up and crash into pizza parlors to free children supposedly held by Hillary Clinton, the same stories are echoed by White House officials. The Russians set up the “Internet Research Agency” solely to exacerbate social strife through fake news.

Recent research shows that, while the Internet Research Agency’s effectiveness was very limited, those affected by it were those who were already primed for action — “locked and loaded” if you will.

We find no evidence that interacting with these [Russian Internet Research Agency] accounts substantially impacted political attitudes and behaviors. Descriptively, interactions with trolls were most common among individuals who use Twitter frequently, have strong social-media “echo chambers,” and high interest in politics. These results suggest Americans may not be easily susceptible to online influence campaigns, but leave unanswered important questions

As Freud said, sometimes a cigar is just a cigar, but there is an interesting First Amendment issue here. Please forgive the “deep dive” into First Amendment vulnerabilities, but consider this:

Would you be at risk for a federal investigation if you were deemed to be a “foreign agent” affected by these foreign trolls? Even if you weren’t a “locked and loaded” fringy, but just someone really dedicated to a cause and then stimulated by a targeted online campaign to do something to influence American policy?

It sounds outlandish, but one pretty decent analysis says: maybe. And if you look at modern advertising targeting, that danger is probably a lot greater than it was in the past.

A very interesting article in Lawfare raises that possibility, citing recent successful prosecutions and indictments related to the 2016 Russian social media disinformation campaign run by the Internet Research Agency. Author Joshua Fattal, a former government official and current law clerk to a federal judge on the nationwide litigation over the 9/11 terrorist attacks, points out that the U.S. Department of Justice is starting to use the Foreign Agent Registration Act, normally used to require disclosures of agents of foreign governments who lobby the U.S. government, against targets such as the Russian Internet Research Agency, a former White House Counsel to President Obama, and former officials of the 2016 Trump presidential campaign.

FARA in its original sense was an anti-foreign propaganda law, requiring disclosure and reporting of foreign attempts to influence American public opinion. Sounds pretty contemporaneous, doesn’t it? But FARA was enacted in 1938, in the wake of German Nazi-era propaganda. It’s now being applied to Facebook, as Fattal discussed in a recent law review article.

Fattal’s latest Lawfare article shows a new side to the recent DoJ FARA enforcement efforts, which, if pushed further than current understanding (and it’s possible in today’s environment that the DoJ or the FBI might keep pushing; just ask Greg Craig, see below), could conceivably ensnare U.S. citizens just responding eagerly to foreign disinformation:

But the Justice Department has also begun to employ FARA in an entirely new context, a move that has so far failed to attract significant attention or analysis. In February 2018, Mueller indicted 13 Russian individuals and three organizations allegedly involved in the 2016 Russian coordinated disinformation campaign. Mueller’s team claimed that these actors violated a number of laws—including failing to register as foreign agents under FARA. …

As the case against these actors has proceeded in the U.S. District Court for the District of Columbia, the government indicated in October that it intends to argue at trial that the defendants conspired to cause a number of individuals or organizations to act as agents of a foreign principal, for which the individuals and organizations or the conspirators (or both) would have had a legal duty to register under FARA with the Justice Department. In other words, the government is arguing that foreign online disinformation actors such as the Russia-based Internet Research Agency, and perhaps those Americans acting at the behest of foreign disinformation organizations, have a legal duty to register their activities with the department.

Id., emphasis added. As the DoJ trial letter quoted by Fattal shows, the government’s argument was that the American individuals and organizations “caused” to “act” by agents of a foreign government — even without knowing it — would have had to register under FARA.

And prosecuted if they don’t register, like Greg Craig, former White House Counsel to President Barack Obama, who was recently acquitted of charges of failing to register under FARA for writing a legal report for pro-Russian leaders in Ukraine in 2012. Craig was the first prominent Democrat to be indicted in a spin-off from former Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential campaign.

Greg Craig was an accomplished lawyer, and apparently quite careful in his consideration of what FARA required. In 2014, he wrote in an email: “I don’t really care who you ask [about the FARA requirements] but we need an answer from someone who we can rely on with a straight face.”  According to news reports, Craig “testified that because his position was contrary to that of the Ukrainian government, he did not view himself as a foreign agent and did not think it necessary to register as one with the Justice Department.”

They charged him anyway. Although prosecutors did not charge Craig with failing to register under FARA, they did charge him with not giving them all the facts behind his relationship to his foreign clients and his interactions with American media to promote his views about an action of the Ukrainian government at the time.

But Craig had the money and connections to fight the charges and win. That doesn’t mean that other Americans who guess wrong about DoJ’s expanding interpretation of FARA will also win. Fattal notes:

It is unprecedented for the Justice Department to use FARA in the context of social media disinformation campaigns that originate abroad.  …

FARA’s disclosure and record-keeping requirements are imposed on “persons” who act as “agents of a foreign principal.” A “person” is an “agent of a foreign principal” when the person “acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal.” Justice Department regulations have not further clarified the necessary elements of an agent’s relationship with a foreign principal, but they have defined “control” to include “the possession or the exercise of power, directly or indirectly, to determine the policies or the activities of a person, whether through… contract, or otherwise.” This definition does not provide much guidance as to what kinds of activities, in practice, suffice to establish a principal-agent relationship.

The case law interpreting FARA suggests that the principal-agent relationship does not require that the parties expressly enter into a contract establishing the relationship. While financial support from a foreign principal alone is insufficient to establish agency, the U.S. Court of Appeals for the D.C. Circuit has held that financial support is not required to establish agency. FARA also does not include any threshold requirements for a certain degree of activity on the agent’s part (i.e., there is no set minimum amount of political activity that the actor has to engage in to properly qualify as an agent).

So is it likely that a concerned American, responding to a post that invites her to protest American policy, has unwittingly become a “foreign agent,” whose failure to register under FARA could put her in jeopardy? Case law, including a 1981 case, Attorney General of the U.S. v. Irish Northern Aid, suggests an important caveat, as Fattal explains:

The [U.S. Court of Appeals for the Fourth Circuit] suggested that it is important to ascertain whether “those requested to act were identified with specificity by the principal”—specifically, whether “a particular individual, or a sufficiently limited group of identifiable individuals, is asked to act.” The court also suggested that the specificity of the action requested is relevant: “Once a foreign principal establishes a particular course of conduct to be followed, those who respond to its ‘request’ for complying action may properly be found to be agents under the Act.”

But how strong is that caveat almost forty years after Irish Northern Aid? In days of yore, such specificity was hard to come by, meaning that Americans were undoubtedly safe from prosecution as “foreign agents.”

Not today, where the hallmark of social media (and mainstream Internet advertising) is precise targeting on the basis of individual, “identifiable” characteristics. Ads are no longer bought in enormous blocks of anonymous recipients; they are personally tailored to a select group of individuals defined by specific characteristics. Social media giants are struggling to adjust.

So would the Irish Northern Aid test for “identified with specificity by the principal” actually protect anyone in today’s microtargeting environment? Google, for example, seems to be proactively getting ahead of this question:

While we’ve never offered granular microtargeting of election ads, we believe there’s more we can do to further promote increased visibility of election ads. That’s why we’re limiting election ads audience targeting to the following general categories: age, gender, and general location (postal code level). Political advertisers can, of course, continue to do contextual targeting, such as serving ads to people reading or watching a story about, say, the economy.

But it’s an ever-changing environment right now, and we may not know exactly where we stand until additional DoJ or FBI actions, and, of course, until more judicial interpretations.

 

 

 

• Uncategorized