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How Do You Govern Disinformation?

Legislators and thousands of Americans continue to voice concerns about any government agency or entity being the final arbiter of truth when it comes to speech and information. Many Americans are wondering how far down the slippery slope we will go before we reach censorship, given the recent history of Twitter, Facebook, LinkedIn, and YouTube censoring material, suspending accounts, and de-platforming individuals and organizations. On Wednesday, April 27, 2022, the Department of Homeland Security (DHS) Secretary Alejandro Mayorkas testified in front of the House Homeland Security Committee and revealed the DHS is creating the Disinformation Governance Board. This disclosure came following a question from Representative Jim Langevin (D-R.I.) who asked about the department’s efforts “…to shore up election security from Russian cyber interference, give confidence to the committee and the American people that we’ve got this, and we are ready to protect and defend our electoral process.” In response Secretary Mayorkas said that a board was just established in order “…to more effectively combat this threat not only to election security but to our homeland security.”

This Disinformation Governance Board will operate out of the DHS, co-chaired by DHS Undersecretary for Policy Rob Silvers and DHS Principal Deputy General Counsel Jennifer Daskal. The Board’s Executive Director, Nina Jankowicz, is charged with carrying out the broadly stated mission “to protect privacy, civil rights, and civil liberties.”

Words Matter

Every relationship, family, and culture depends on and grapples with the ability to communicate effectively with words and their definitions serving as the foundation. Likewise, civilizations throughout history depend on a trusting and transparent relationship between citizens and the government entities that serve them.

The DHS has yet to clearly define “disinformation” regarding their newly stated mission for the Disinformation Governance Board. The word’s definition seems to be in flux. [1] Disinformation, as defined by the Oxford English Dictionary (OED) in 2018, was “the dissemination of deliberately false information, [especially] when supplied by a government or its agent to a foreign power or to the media, with the intention of influencing the policies or opinions of those who receive it.” However, as of 2022, the Oxford English Dictionary describes disinformation as “a form of propaganda including the purposeful spread of incorrect information with the intent to deceive or mislead.”

In addition, the Cybersecurity & Infrastructure Security Agency (CISA), a Department of Homeland Security subordinate agency managed by Director Jen Easterly, issued infographics outlining and defining disinformation, misinformation, and malinformation. [2] CISA aligns itself with the more recent OED definition of disinformation in their infographic “Disinformation Stops With You,” defining it as “…information that is purposely designed to mislead, injure, or influence a person, social group, organization, or country.” CISA’s definition of malinformation leaves some questions unanswered. While misinformation and disinformation are based falsehoods, malinformation is based in fact, yet included in the “Types of false info” on their infographic. A clearly articulated strategy and purpose statement could also define the standard used as the baseline for “context,” the legal definition of “harm,” and what constitutes “manipulate.”

DHS’ stated mission as a department is to “With honor and integrity…safeguard the American people, our homeland, and our values.” Given the lack of clarification on how DHS will define disinformation, and how they intend to use this new governance board to carry out this claimed purpose, Overwatch can only look to America’s past for examples of times when the government sought to impose speech and press restrictions.

Historical examples of government limits on speech and the press

Generations of Americans before us faced similar activities where the United States government sought to dictate the limits of speech.

Alien and Sedition Acts 1798

In 1798, on the precipice of a quasi-war with France, the Adams administration passed the Alien and Sedition Acts. The Sedition Act made it illegal to “…write, print, utter or publish…any false, scandalous, and malicious writing…with intent to defame the…government” or “to stir up sedition within the United States.” The goal of this legislation was to limit the ability of France to influence the U.S. population. As a result of the passage of these laws, there were twenty-five arrests, fifteen indictments, and ten convictions. The vast majority were from newspapers affiliated with the then minority, the Democratic-Republican Party. The laws were then allowed to expire in 1801.

Espionage and Sedition Acts 1917

The Espionage Act of 1917 criminalized efforts and movements to limit the U.S.’s ability to manufacture and produce wartime supplies. [3] These activities were treated as sabotage against the government’s pursuit to defend itself and the military’s ability to fight. The final bill signed in June 1917 addressed spying, flying over forbidden sites, sabotage, interrupting foreign commerce, seizure of arms, and deliberate interference with the military.

The Seditions Act of 1918 served primarily as an amendment to the Espionage Act of 1917, criminalizing “disloyal, profane, scurrilous or abusive” speech about the United States, its symbols; speech to impede war production; and statements supporting a country with which the U.S. is at war. These acts led to over 2,000 arrests and multiple court cases, with the two most notable being: Schenck v. United States and Abrams v. United States, both in 1919. The Schenck case introduced one of the most recognizable free speech references through Justice Holmes’ unanimous majority opinion, which states, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing panic…”. The Schenck ruling was limited by Brandenburg v. Ohio 1969, which ruled speech can only be banned when it is directed to and likely to incite imminent lawless action, which remains today. Lon Strauss, an assistant professor at the Marine Corps Command and Staff College, stated, “the whole reason behind the Espionage Act and the Sedition Act was the fact that the government understood that words matter, words had influence.”

Government Misleading Citizens and Hiding Truth

Many Americans feel less confident in their freedoms to voice their opinions publicly, assemble and protest, and exercise or express religious beliefs. YouGov and Americans for Prosperity surveys revealed Americans trust public leaders less and less in handling policies and protecting their constitutional rights, following the COVID-19 pandemic, and experiencing and witnessing the restrictions and mandates governments carried out without following the constitutionally mandated legislative process.

Citizens remember dozens of examples of the government providing false information to the public or omitting critical information under no risk to national security. The George W. Bush administration irresponsibly took the nation to war under the false and often manipulated pretense that WMDs were present in Iraq. The Obama administration’s Internal Revenue Service (IRS) targeted conservative organizations applying for tax-exempt status by delaying the requests and “demanding unnecessary information.” More recently, the endless claims that Donald Trump and his campaign colluded with the Russians to win the 2016 election have been disproven by the Mueller report.

The public’s lack of faith and general distrust in the federal government has sound precedence as Secretary Mayorkas announces the Disinformation Governance Board on Capitol Hill. Failing to provide any transparent insight into the limits under which the Board will exercise its mission, and the precise descriptions of activities and behaviors they will monitor harden scrutiny felt across the country and on both sides of the political aisle. Consequently, appointing Nina Jankowicz as the Executive Director opens the Department to criticism because of her comments and social media posts over the past three years. Ms. Jankowicz’s comments on social seemed to be aligned with a singular political party as she rushed to defend the assertion that the New York Post’s story on Hunter Biden’s laptop was a Russian disinformation operation. On March 16, 2021, Ms. Jankowicz tweeted:

Our Assessment

If left unchecked, the U.S. DHS will politicize the use of the Disinformation Governance Board by using it to remove dissent within the citizenry to silence political opposition. Like the Espionage and Sedition Acts, disloyal, profane, scurrilous, and disloyal speech toward the government’s fight against domestic terrorism and white supremacy will be censored, removed from the internet, and “violators” will be prosecuted.

The decision to develop a governance board coincides with a change of perception some citizens have of Elon Musk’s acquisition of Twitter. Funding for this Board must be carefully prioritized with measured performance objectives given the economic crisis in the U.S. and continued efforts at uncontrolled government spending. Questions continue to arise about the government’s chosen missions for the Board, given that a March 2021 Joint Report from the Department of Justice and Department of Homeland Security found no foreign governments directly interfered with our voting process. The report states, “No evidence that any foreign government-affiliated actor prevented voting, changed votes, or disrupted the ability to tally votes or transmit election results in a timely manner; altered any technical aspect of the voting process; or otherwise compromised the integrity of voter registration information of any ballots cast during 2020 elections.”

 


 

[1] This problem of unclear definitions is the same issue facing the European Union, which began acting on the regulation of disinformation in 2018, according to a 2021 article published in the Journal of Internet Regulation.

[2] Overwatch found “malinformation” referenced only on Urban Dictionary, University of Minnesota’s eLibrary, Slang Define, and a research site Qeios.

[3] The largest consolidated group engaging in this activity in the United States, and to a lesser degree in Australia, was the International Workers of the World (IWW). The IWW labeled WWI the “bosses war” and described it as an “imperialist war” looking to grab more land and expand industrial efforts to gain power and grow wealth. The IWW sought to sabotage America’s war efforts through labor strikes at ammunition factories and other boycotts disallowing the manufacturing of required warfighting weapons and materials.

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