A Gordian Knot: Disentangling State-sponsored Election Interference and Free Speech Online

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Russia developed “troll farms” to influence the 2016 American presidential election using misinformation spread via social media.[1] Experts disagree on the impact, but this type of interference is a growing phenomenon with similar recent attacks in Ukraine, France, and Russia.[2]

Though Russia’s actions seem like a violation of the non-intervention doctrine, they may not violate the law.[3]The non-intervention doctrine concerns states’ sovereignty and generally prohibits states from actions that interfere with the internal affairs of another state.[4] However, states can only be held responsible for this sort of conduct when their intervention affects another state’s affairs and when the cyber operation is coercive.[5] Merely influential cyber operations are not prohibited, so while digitally triggering a miscount of votes could be coercion and therefore interference, publishing misinformation without directly interrupting election administration is not.[6]

A direct solution is restricting the speech of state-sponsored actors, perhaps in the American context using the Federal Election Campaign Act which disallows virtually any activity involving elections by foreign nationals.[7] Yet, setting aside whether social media companies could or would enforce such restrictions, the United States Supreme Court has never upheld an injunction against speech based on national security concerns.[8] In the United States, the First Amendment explicitly protects free expression from government interference.[9] The Supreme Court continues to preserve these protections holding that the freedom of expression is more important than “…any theoretical but yet unproven benefit of censorship.”[10] Even false political speech cannot be punished unless it is defamatory online or otherwise.[11]

Accordingly, when a foreign national without such protections posts misinformation and an American re-shares the content, it seems nearly impossible to constrain the misinformation without violating the American’s protected speech. Even an approach as noninvasive as intelligence agencies monitoring and collecting publicly available social media posts (in which there are no direct limits placed on free speech) is often explicitly prohibited by social media companies’ terms of service agreements.[12] Further, the Supreme Court consistently reaffirms that national security is not a compelling interest to limit free speech.[13] Not inconsequentially, deterring election interference allows us to preserve freedom of expression as a fundamental cornerstone of our democratic system.

Freedom of speech is more widely accepted in the United States than in any other country.[14]  However, more and more countries are wrestling with the need for cooperative international regulation of speech on the internet, while also recognizing that freedom of speech is a fundamental human right protected under international law; and restriction on the free movement of information on the Internet could violate that right.[15] Yet, without the international community settling on a solution, in part because there is little consensus over what content should be blocked[16] an increasing number of countries are falling victim to this sort of cyber interference designed to influence elections including Germany, Hungary, and France.[17]

Tough choices: protect free speech or preserve elections free from foreign interference? It’s a difficult value judgment further complicated by the fact that the very elections we’re attempting to preserve are elections that determine our leaders who we, in turn, trust to protect our constitutional rights, including free speech. What will nations do in the face of ongoing cyber elections interference influence campaigns without updated international law redefining interference? Will they serve as laboratories of democracy, experimenting with sacrificing elements of one critical right to preserve the other?

[1] Abigail Abrams, Here’s What we Know So Far About Russia’s 2016 Meddling, Time (Apr. 18, 2019), https://time.com/5565991/russia-influence-2016-election/.          

[2] Michael Schmitt, Foreign Cyber Interference in Elections: An International Law Primer, Part I, EJIL: Talk! Blog of the European Journal of International Law (Oct. 16, 2020), https://www.ejiltalk.org/foreign-cyber-interference-in-elections-an-international-law-primer-part-i/.

[3] Jens David Ohlin, Did Russian Cyber Interference in the 2016 Election Violate International Law?, Texas L. Rev.,  95, 1579 (2017) (discussing if Russian hacking is a violation of sovereignty).

[4] Harriet Moynihan, The Application of International Law to State Cyberattacks: Sovereignty and Non-Intervention, § 3 (2019).

[5] Responsibility of States for Internationally Wrongful Acts, with commentaries, 55 U.N. GAOR Supp. No. 10, at 69-70, Doc. A/56/10 (2001).

[6] Schmitt, supra note 2.

[7] Contributions and Donations by Foreign Nationals, 52 U.S.C. § 3012.

[8] Freedom of Expression, ACLU, https://www.aclu.org/other/freedom-expression (last visited Oct. 14, 2021).

[9] Kim L. Rappaport, In the Wake of Reno v. ACLU: The Continued Struggle in Western Constitutional Democracies with Interest Censorship and Freedom of Speech Online Notes and Comments, 13 Am. U. Int’l 765, 771 (1997).

[10] Id. at 781.

[11]Law Shelf, Freedom of Speech Exceptions: Categories of Speech NOT Protected, https://lawshelf.com/shortvideoscontentview/freedom-of-speech-exceptions-categories-of-speech-not-protected/ (last visited Sep.11, 2021).

[12] Elizabeth Bodine-Baron, Todd C. Helmus, Andrew Radin & Elina Treyger, Countering Russian Social Media Influence, 19-20 (2018).

[13] Douglas Fraleigh & Joseph S. Tuman, Freedom of Expression in the Marketplace of Ideas 115 (Todd R. Armstrong, Brittany Bauhaus & Allison Hope, eds., 1st ed. 2011).

[14] Countries with Freedom of Speech 2021, World Population Review, https://worldpopulationreview.com/country-rankings/countries-with-freedom-of-speech (last visited Oct. 14, 2021).

[15] Rappaport, supra note 7, 810.

[16] Rappaport, supra note 7, 811.

[17] Significant Cyber Incidents, Center for Strategic and International Studies, https://www.csis.org/programs/strategic-technologies-program/significant-cyber-incidents (last visited Oct. 14, 2021).