Author: publicpolicylegal

Is It A Federal Crime To Believe False Social Media?

Is It A Federal Crime To Believe False Social Media?

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.

 

 

 

PPLI Files Comments Supporting IRS Proposal to Update Donor Protection Regulations

PPLI Files Comments Supporting IRS Proposal to Update Donor Protection Regulations

Since 2000, the Internal Revenue Service has required tax-exempt organizations to file lists of substantial donors on Schedule B to their Annual Information Returns, Form 990. In originally preparing Schedule B, the IRS was attempting to protect donors’ private information from disclosure. Prior to 2000, tax-exempt organizations’ donor lists were sometimes disclosed because IRS officials did not recognize the submitted donor lists as non-disclosable, protected information. The Schedule B was intended as a standard form easily recognized by IRS employees as not disclosable.

Unfortunately, Schedule B did not protect donors’ information. In fact, it became a way for state governments and outside organizations to demand information they weren’t allowed to have. As a result, state governments put thousands of donor records on the Internet, and outside organizations began to use the disclosed information for purposes other than tax administration, such as “outing” donors for supporting disfavored organizations.

In September 2019, the IRS published a Notice of Proposed Rulemaking, asking for public comments on a new plan for Schedule B. Instead of requiring all organizations to submit the names and addresses of donors, the IRS proposed not to include the names and addresses. The IRS noted in its NPRM that it did not need or use the donors’ names and addresses for tax administration, so its proposal wouldn’t cause it any difficulties. Thousands of comments were submitted to the IRS, the vast majority in favor of the update to the IRS’s rules.

Today, the Public Policy Legal Institute submitted an 18-page set of comments, strongly supporting the proposed update, but offering five major recommendations for improvements in how the rule was explained.

From the PPLI Comments:

            Since 1976, congressional policy has been that taxpayer information is to be kept confidential except in “limited situations.” The Supreme Court ratified that interpretation in 1987 against a request to release even redacted information. In 2000, facing repeated instances of Service personnel releasing this confidential information, the Service adopted Schedule B, as an attempt to clearly identify for its own employees the information that could not be released.

But Schedule B failed, in large part because Service employees reversed the congressional and Supreme Court interpretation in a 2001 staff memorandum. In 2002, the Service decided just to ignore its own mistake and require people to request the information twice. That non-compliant policy has continued since, with the requests for non-compliant, non-tax administration-based use of Schedule B increasing. Those increasing requests have caused untold, but very real damage to tax-exempt organizations and individuals, with unrebutted court records of harassment and donor loss of privacy caused directly by the requests of state governments and Service leaks.

            This has been the confused and confusing situation for almost twenty years, until this proposed update. In this proposed update, the Service would cut the Gordian knot by simply not requiring the name and address to be filed. The stated rationale is that the information is not needed, but the real answer is that the proposed update finally returns the Service position to what it was after [the Supreme Court’s decision in] Scientology and its progeny explained the correct interpretation of the legislative language and intent.

Learn more about the PPLI Comments here.

Justice Alito on the importance of Free Speech

Justice Alito on the importance of Free Speech

While public policy lawyers looked at the Supreme Court of the United States’ per curiam decision today in Thompson v. Hebdon, No. 19-122. 589 U.S. ___ , Nov. 25. 2019, (Grant, Vacate and Remand Ninth Circuit decision upholding Alaska’s low campaign contribution limits),  another Free Speech case slipped by almost unnoticed. National Review, et al. v. Mann, No. 18-1451 & 18-1477, asked the Court to grant review of whether journalists and advocacy organizations can use “harsh language” to criticize those advocating differing opinions without being sued for defamation. The Court denied certiorari, but Justice Samuel Alito wrote a dissent from the denial explaining his view of the importance of the question for free speech.

Michael Mann is a scientist and professor at Penn State University who produced the “hockey stick” graph of global temperatures from the year 1050 until modern times, showing what was claimed to be a sharp rise in global temperatures over the last century.  Blogs from National Review magazine and the Competitive Enterprise Institute criticized Mann, the hockey stick graph and a Penn State investigation into Mann’s research. Mann sued for defamation, and the defendants moved to dismiss the lawsuit under a District of Columbia “anti-SLAPP” statute, which requires dismissal of a defamation claim if it is based on “an act in furtherance of the right of advocacy on issues of public interest.” Both the D.C. Superior Court and Court of Appeals refused to dismiss the claim, so the defendants asked the U.S. Supreme Court for review. On Nov. 25, 2019, the Supreme Court denied certiorari.

Justice Alito wrote a dissent to the denial of review (scroll to the end of the Order List), including both the defamation issue itself, and the need for the Court to be vigilant in protecting speech. On the question of whether juries should be allowed to decide whether highly-technical and controversial questions are factually false, Alito noted that, particularly on “a political or social issue that arouses intense feelings, selecting an impartial jury presents special difficulties.” In addition, if the alleged defamation is nationally distributed, the plaintiffs can pick a forum where the jury pool is likely to be sympathetic.

But Alito also addressed the “even more important” question of “protection of robust and uninhibited debate on important political and social issues.”

To ensure that our democracy is preserved and is permitted to flourish, this Court must closely scrutinize any restrictions on the statements that can be made on
important public policy issues. Otherwise, such restrictions can easily be used to silence the expression of unpopular views. …

In recent years, the Court has made a point of vigilantly enforcing the Free Speech Clause even when the speech at issue made no great contribution to public debate. For example, last Term, in Iancu v. Brunetti, 588 U. S. ___ (2019), we upheld the right of a manufacturer of jeans to register the trademark “F-U-C-T.” Two years before, in Matal v. Tam, 582 U. S. ___ (2017), we held that a rock group called “The Slants” had the right to register its name.

In earlier cases, the Court went even further. In United States v. Alvarez, 567 U. S. 709 (2012), the Court held that the First Amendment protected a man’s false claim that he had won the Congressional Medal of Honor. In Snyder, the successful party had viciously denigrated a deceased soldier outside a church during his funeral. 562 U. S., at 448–449. In United States v. Stevens, 559 U. S. 460, 466 (2010), the First Amendment claimant had sold videos of dog fights.

If the speech in all these cases had been held to be unprotected, our Nation’s system of self-government would not have been seriously threatened. But as I noted in Brunetti, 588 U. S., at ___ (slip op., at 1) (concurring opinion), the protection of even speech as trivial as a naughty trademark for jeans can serve an important purpose: It can demonstrate that this Court is deadly serious about protecting freedom of speech. Our decisions protecting the speech at issue in that case and the others just noted can serve as a promise that we will be vigilant when the freedom of speech and the press are most seriously implicated, that is, in cases involving disfavored speech on important political or social issues.

This is just such a case. Climate change has staked a place at the very center of this Nation’s public discourse. Politicians, journalists, academics, and ordinary Americans discuss and debate various aspects of climate change daily—its causes, extent, urgency, consequences, and the appropriate policies for addressing it. The core purpose of the constitutional protection of freedom of expression is to ensure that all opinions on such issues have a chance to be heard and considered.

Justice Alito has spoken before on the importance of free speech. Last June, he wrote the decision in Janus v. AFSCME, Council 31, 138 S. Ct. 2448 (2018), striking down mandatory union dues because they affect members’ speech rights, which had been fore-shadowed by his 2014 opinion for the Court in Harris v. Quinn: “Compelled funding of the speech of other private speakers or groups presents the same dangers as compelled speech.” Harris v. Quinn, 134 S.Ct. 2618, 2639 (2014).

Why “Vox PPLI” Went Silent

Why “Vox PPLI” Went Silent

You might have noticed that we haven’t posted anything for several months. We’re still here and active, but our website and blog were attacked by massive numbers of false “comments” apparently intended to sell products such as CBD oil and the like. Literally one or two ads every minute bombarded our site. With a small all-volunteer staff, the task of simply cleaning out the fake comments was overwhelming.

So, on the advice of cybersecurity professionals, we went “dark” for a time, allowing the malicious advertising stream to wither. That appears to have been successful, so we’re back.

Sorry for the interruption.