Author: barnabyzall

New Reporting Sheds Light on Chinese-American Cooperation in Fighting Coronavirus

Leaving aside the legal question of the federal government’s position on prosecuting Americans for believing foreign propaganda, new reporting shows that information-sharing can be beneficial, particularly in a period of intense international crisis.

And the underlying message bolsters the rationale for the First Amendment: government information control can be more dangerous than free expression. Especially in a time of crisis when information is at a premium.

Getting information out of China can often be difficult, but two invaluable sources of information are the South China Morning Post and the Wall Street Journal. Today found two articles of particular First Amendment interest:

The SCMP story, “China’s Centres for Disease Control should have power to warn public, says country’s leading expert,” by correspondent Wendy Wu, was particularly telling, putting the contentious question about information control by the Chinese central government in a different light. In February, China’s “leading epidemiologist Zhong Nanshan … [told the media]  that CDC’s functioning had been weakened in recent years, and it was unable to report directly to the central government or issue public warnings.”

On Sunday, Dr. Zhong told People’s Daily that “The CDC [China’s Centres for Disease Control and Prevention] should be granted certain powers, rather than merely being a technical unit to collect and report data.” He emphasized that experts should be permitted to address the public directly, rather than being subject to government limitations:

“China’s CDC is so far basically a technical department. In finding problems, discovering origins of viruses, assessing the severity of contagion, it should have the authority to interpret,” he said. “On one hand it needs professionals, on the other hand it needs to be empowered, like those in some other countries, that can speak to the public when necessary or in emergencies.”

And Jonathan Cheng reported [paywall] for the WSJ in “As U.S., China Clash Over Coronavirus, Their Doctors Quietly Join Forces,”  about the extensive cooperation between front-line Chinese and American doctors and scientists trying to combat the virus.

The U.S. and China are at each other’s throats, bickering over the origins of the coronavirus and bashing each other’s handling of the crisis.”

Behind the scenes, hundreds of doctors and scientists in the U.S. and China have been using online platforms to hold virtual meetings, trading notes on how best to treat patients and procure needed supplies. …

One of the key figures in the trans-Pacific collaboration has been Zhong Nanshan, China’s best-known epidemiologist and the director of the Guangzhou Institute of Respiratory Diseases.

When the coronavirus outbreak began to grow dire in Wuhan in late January, Dr. Zhong—head of a coronavirus expert committee for China’s cabinet-level National Health Commission—reached out to Harvard through Hui Ka Yan, a billionaire real estate mogul whose Evergrande Group has endowed several initiatives at Harvard, including an immunological disease center. …

[Zhong] had visited Wuhan in mid January and his declaration on Jan. 20 that the virus could be transmitted between humans marked a turning point in the world’s understanding of the pathogen. …

“We took advantage of the people that we know in China who were very open and from the beginning they told us, ‘You got to get ready and you got to be aggressive,’” Dr. Criner said. “We listen to them and that’s what we’ve done.”

Some of the strongest connections are through Chinese-American practitioners working in the U.S. “We knew sooner or later this [epidemic] was going to happen here, because we have such strong ties,” said Xu Ruliang, president of the Association of Chinese American Physicians, whose more than 700 members are largely clustered in the tri-state area of New York, New Jersey and Connecticut that has been hit hardest by the coronavirus.

The twin messages? Sometimes lower-level citizens can do more good exchanging information than governments can by inflaming and suppressing it.

And isn’t that the whole purpose behind the First Amendment?

Can Americans Be Prosecuted for Believing the Widespread Chinese Disinformation Campaign About Coronavirus?

Can Americans Be Prosecuted for Believing the Widespread Chinese Disinformation Campaign About Coronavirus?

Facebook is taking a pounding for failing to identify as “political” many ads placed by a coronavirus-related disinformation campaign run by Chinese state media. This isn’t so much Facebook’s problem, as it is an expected outcome of sophisticated intentional Chinese disinformation. Vice noted that:

Chinese state media has been flooding Facebook and Instagram with shady political ads praising Beijing and bashing “racist” President Trump as part of a wider campaign to rewrite its part in the global coronavirus pandemic.

The undisclosed political ads, from Global Times, Xinhua News Agency, Global China Television Network (GCTN), and China Central Television (CCTV), all ran on the two platforms in recent months, targeting users around the world in English, Chinese, and Arabic, but they’ve only now been flagged by Facebook as being political.

Facebook was not the only platform hosting this type of ad; others, such as Twitter, have actively shut down misleading ads and posts. In March, Vice explained its analysis of the elements making up “China’s playbook”, which must seem particularly chilling to anyone supporting free speech on public policy:

  • Silence Dissenting Voices
  • Block Information
  • Spin-up State Media
  • Spread Disinformation
  • Promote Conspiracy Theories
  • Write a Book
  • Deploy a Twitter Army
  • Gin Up More Conspiracy Theories

And Pro Publica explained in long-form detail how the “playbook” disinformation network was shifted from attacking protesters in Hong Kong to coronavirus:

The activities of the influence network were consistent with the timing of the government’s handling of the epidemic and the themes it was publicly pushing. Discussions of a novel coronavirus in Wuhan began swirling on Chinese social media in early January, but the network made no mention of it, continuing to criticize the Hong Kong protests and attack political dissidents. On Jan. 29, six days after the Chinese central government imposed a lockdown on Wuhan, the influence network suddenly shifted its focus to the coronavirus epidemic. That same day, OneSight announced a new app that tracked virus-related information. The announcement was accompanied by a graphic declaring that OneSight would “transmit the correct voice of China” to the world.

“The correct voice of China” is likely to be interesting reading. For example, the official Chinese timeline of the coronavirus outbreak, released Monday by the state-owned media company Xinhua, ignores the crucial first three weeks of the epidemic. One long-form video placed by the Chinese state-owned Global Times, and run on Facebook from March 27 to April 2, said that the Chinese government moved “instantly” at the “onset” of the coronavirus outbreak “on January 23.” But the virus erupted in early December 2019, and Chinese officials actively suppressed information about the outbreak, including silencing Li Wenliang, the whistleblower Wuhan doctor whose death caused an unprecedented wave of rage and grief on social media in China.

To its credit, Facebook announced that it was planning to start identifying ads placed by state actors:

“We are progressing on our plans to label state-controlled media pages on Facebook, including from China, and will have more to share on this soon. We are continuing to work with publishers and third party experts on this issue to ensure that we get this right” a Facebook spokesperson told VICE News, adding that the coronavirus outbreak will delay the rollout of further political transparency measures.

Facebook is struggling to police its platform during the pandemic, as it has sent home the thousands of people its uses to moderate toxic content. Facebook is relying much more heavily on its automated systems to approve ads and moderate content.

But Facebook’s belated announcement doesn’t actually settle the legal questions raised by this second massive state-sponsored disinformation effort. Even leaving aside the obvious implications for public advocacy inherent in police-state silencing of whistleblowers, the Chinese disinformation campaign raises troubling questions under American public policy law, especially in light of recent U.S. Department of Justice prosecutions and investigations, and assertions by Federal Election Commissioner Ellen Weintraub that all it should take to trigger an FEC investigation is a viral or “blockbuster” social media story.

First, the Global Times ad not only mentioned President Trump just before presidential primary votes, but called his actions “racist.” Chinese ads which name American politicians running for office, if run in the United States before elections, including primary elections, might constitute contributions of “things of value” or “foreign campaign intervention” or even “electioneering communications” under federal and state laws:

An electioneering communication is any broadcast, cable or satellite communication that refers to a clearly identified federal candidate, is publicly distributed within 30 days of a primary or 60 days of a general election and is targeted to the relevant electorate.

These are the same sort of actions that triggered intense governmental scrutiny of social media ads placed by the Russian Internet Research Agency disinformation campaign in the 2016 presidential campaign. No such governmental investigations have been announced or leaked as a result of the Chinese coronavirus disinformation campaign, though there is apparently a commitment for a Senate investigation of the actions of the World Health Organization. But will the Chinese efforts be considered campaign finance violations in support of Joe Biden’s presidential campaign, just like the Russian efforts in 2016 that triggered the Mueller investigation of the 2016 Trump campaign? In today’s state-sponsored social media environment, are we likely to face these paralyzing questions and expensive investigations after every campaign?

Second, Americans have started to echo some of the messages circulated by the Chinese propaganda, which could conceivably trigger investigations of those Americans’ actions. Sound far-fetched (as it should)? A recent article in Lawfare explored this possibility in more detail, as noted in a December 2019 post on this blog. Federal investigations and prosecutions have started because of actions based on false social media posts. A 1982 case from the U.S. Court of Appeals for the Second Circuit, Attorney General of the U.S. v. Irish Northern Aidcould be used to find that repeating Chinese propaganda might be construed as triggering registration obligations under the Foreign Agents Registration Act. Greg Craig, former White House Counsel to President Obama, was recently charged — and acquitted — during the Mueller investigation for being an “agent” of the Ukrainian government but failing to fully disclose and report his relationships in FARA filings.

And it appears that U.S. official legal policy is that even innocent or unknowing support of foreign governments can be federal violations. A Dept. of Justice trial memo in the Craig case argued that the American individuals and organizations “caused” to “act” by agents of a foreign government — even without knowing it — would have had to register and make full disclosure under FARA.

Not so long ago, it might have seemed outlandish to suggest that unwitting Americans could be investigated or prosecuted for believing false social media. Indeed, in his acquittal defense, Greg Craig pointed out that he was hardly an “agent” of the Ukrainian government since his position opposed their’s, but that didn’t stop him from being prosecuted.  But today, when sophisticated state-sponsored propaganda can be targeted to trigger individuals to action, the Irish Northern Aid precedent may come back to haunt us.


“In Defense of ‘Dark Money’”

“In Defense of ‘Dark Money’”

Nan Aron and Abby Levine, both from the invaluable Alliance for Justice, have an important article in today’s American Prospect making a progressive defense of the use of 501(c)(4) social welfare organizations to oppose the Trump agenda, even though c4s do not disclose their donors (“dark money”). The authors admit “It’s a head-spinning development for some—and comes with no shortage of angst for committed progressives who are strongly allergic to the “dark money” notion and all that it implies.” 

Nevertheless, Aron and Levine, themselves mainstays of progressive advocacy, say:

there is a very real risk that if donors on the left become squeamish about supporting new 501(c)(4)s, the progressive community will lose the huge advantages of social-welfare organizations in the era of Trump, the worst possible time to sacrifice any tool in the toolbox.

Code word alert (in a good way): AFJ is very big on “tools.” It created and continues to sponsor the Bolder Advocacy website, with its “toolkits” for advocates. It’s probably that experience with helping advocates effectively convey their messages that helps AFJ cut through the political undercurrents, and understand the true value of allowing freedom to advocate. Indeed, it is, in fact, “bolder” to challenge the thinking that “dark money” is inherently bad.

But this isn’t the first time progressives have argued the value of c4s, despite dark money. Eliza Newlin Carney wrote an article in April asking “Should ‘Dark’ Money Power the Resistance to Trump?” (A quibble, because Carney, often touted as an expert in election law, should know better: she says the IRS “approves” c4s; it doesn’t. Unlike 501(c)(3) charities, C4s automatically have that status upon their organization – although they can lose it – so the IRS simply “recognizes” them, which is one reason the IRS application Form 1024 says so in its title. The IRS does “approve” c3 charities, because they can receive tax-deductible contributions, which c4s cannot.)

Why is this important? Not so much because those who complain about “dark money” are being hoist on their own petards. But because the explanation undercuts a primary argument against campaign finance “reform.” Carney makes that point explicitly in her piece: “If Senators up for reelection get help from progressive groups operating in secrecy, it potentially undercuts Democrats’ campaign finance message.”

But that battle was lost long ago. Progressive groups have used c4s extensively in recent years. In fact, in the 2016 elections, according to Carney, almost 40% of all undisclosed campaign expenditures (itself a tiny percentage of all campaign spending, by the way) came from progressive groups.

So it is refreshing to see Aron and Levine come out so strongly in favor of allowing Americans of all ideologies band together to advocate their causes:

Well-run and transparent 501(c)(4) organizations can serve the American democratic process well. They provide a forum for individuals to come together and speak out collectively on the issues that matter to them most. While sometimes that may mean taking a political stance on the issues of the day, 501(c)(4)s focus on social welfare, not political activities. These organizations got a bad rap after the IRS scandal, but many of these groups have also come together to further social welfare and to take steps to prevent future abuses. A vibrant 501(c)(4) nonprofit sector is indispensable, and anyone concerned with bolstering the progressive movement should consider devoting more resources to these organizations.

If Facebook Can’t Figure Out What Hate Speech Is, How Could Government Officials?

If Facebook Can’t Figure Out What Hate Speech Is, How Could Government Officials?

Today’s Washington Post has an “insider” story on how difficult it is for Facebook to police “hate speech” and offensive imagery presented to its 2 Billion users a month. Facebook, having run into difficulty when its new “live” livestreaming option began to show suicides, assaults and even murders, is hiring another 3,000 people to help keep its offerings safe. Facebook says it deletes 288,000 hate speech posts a month. Note that these figures include its vast overseas participation, and do not represent the number of domestic incidents.

So Facebook has a “censorship manual” that cites 15,000 words that apparently are not allowed. But most of its monitors seem to be overseas contractors, who may not understand American idioms — or sensitivities. So now minority groups are contending that the Facebook program is biased against minorities, such as using — in a friendly way — intimate racial slurs.

There is apparently even a new organization — the Dangerous Speech Project — that has identified five “factors” in determining whether speech is “dangerous” or not:

  • Speaker: Did the message come from an influential speaker?
  • Audience: Was the audience susceptible to an inflammatory message, e.g. because they were already fearful or resentful?
  • Message: Does the speech carry hallmarks of Dangerous Speech? The hallmarks are:
    • Dehumanization. Describing other people in ways that deny or diminish their humanity, for example by comparing them to disgusting or deadly animals, insects,  bacteria, or demons. Crucially, this makes violence seem acceptable.
    • ‘Accusation in a mirror.’ Asserting that the audience faces serious and often mortal threats from the target group – in other words, reversing reality by suggesting that the victims of a genocide will instead commit it. The term ‘accusation in a mirror’ was found in a guide for making propaganda, discovered in Rwanda after the 1994 genocide. Accusation in a mirror makes violence seem necessary by convincing people that they face a mortal threat, which they can fend off only with violence. This is a very powerful rhetorical move since it is the collective analogue of the one ironclad defense to murder: self-defense. If people feel violence is necessary for defending themselves, their group, and especially their children, it seems not only justified but virtuous.
    • Assertion of attack on women/girls. Suggesting that women or girls of the audience’s group have been threatened, harassed, or defiled by members of a target group. In many cases, the purity of a group’s women is symbolic of the purity of the group itself, or of its identity or way of life.
    • Coded language. Including phrases and words that have a special meaning, shared by the speaker and audience. The speaker is therefore capable of communicating two messages, one understood by those with knowledge of the coded language and one understood by everyone else. This can make the speech more dangerous in a few ways. For example, the coded language could be deeply rooted in the audience members’ sense of identity or shared history and therefore evoke disdain for an opposing group. It can also make the speech harder to identify and counter for those who are not familiar with it.
    • Impurity/contamination. Giving the impression that one or more members of a target group might damage the purity or integrity or cleanliness of the audience group. Members of target groups have been compared to rotten apples that can spoil a whole barrel of good apples, weeds that threaten crops, or stains on a dress.
  • Context: Is there a social or historical context that has lowered the barriers to violence or made it more acceptable? Examples of this are competition between groups for resources and previous episodes of violence between the relevant groups.
  • Medium: How influential is the medium by which the message is delivered? For example, is it the only or primary source of news for the relevant audience?

Dangerous Speech Project, “What is Dangerous Speech?”

Unfortunately, even this five-part factor test, with subparts, is insufficient for this organization, so it provides a further “analytical framework” so the observer can be more certain of what speech is “dangerous” and what is not. The “Guidelines” are five pages long with footnotes. Such ambiguous terms as “coded words” are illustrated by examples from genocidal history.

When speech is deemed an existential threat, as when “dangerous” is compared to genocide, the very act of defining terms becomes crucial. This nonprofit organization can’t do so in a simple way, nor can a massive corporation like Facebook.

How then could a judge, legislator or other government official?

That is one reason why the First Amendment is a simple “thou shalt not”-type of rule. But even that may not be enough for some. Senator Diane Feinstein (D-CA) and UCLA Law Professor Eugene Volokh recently discussed this topic at a June 20, 2017, Senate Judiciary Committee Hearing. Feinstein and her colleague Dick Durbin (D-IL) thought that mere “menacing” or racist words was enough to cut off speech; Volokh pointed out that such actions were likely counterproductive and probably unconstitutional. Video of the hearing is here.