President Joe Biden on March 9 signed the Consolidated Appropriations Act, 2024, H.R. 4366, into law, funding the Departments of Agriculture, Commerce, Housing and Urban Development, Justice, Energy, Interior, Transportation, and Veterans Affairs, and with it likely went any hope of Congress reining in various programs by the Justice Department to combat so-called misinformation, disinformation and malinformation (MDM).
The original House version included in the Commerce, Science, Justice appropriations bill in Sec. 597 was a provision that did away with those programs at the Justice Department, stating, “None of the funds appropriated or otherwise made available by this Act may be made used to … classify or facilitate the classification of any communications by a United States person as misinformation, disinformation, or malinformation; or … partner with or fund nonprofit or other organizations that pressure or recommend private companies to censor lawful and constitutionally protected speech of United States persons, including recommending the censoring or removal of content on social media platforms.”
But in the final version of the legislation, that provision has been stripped away.
In the meantime, on March 7, the House Energy and Commerce Committee unanimously advanced 50-0 twin proposals to ban the Chinese-owned TikTok social media app if it is not divested, H.R. 7521 and H.R. 7520. While it remains to be seen how these bills, which prohibit any applications deemed by the federal government to be a “foreign adversary controlled application,” including TikTok, one can imagine a scenario just a year or two from now where Congress frantically convenes hearings on Capitol Hill outlining how their provisions were used to target Americans’ speech online.
Under H.R. 7521, any “covered company… [that] is controlled by a foreign adversary; and … that is determined by the President to present a significant threat to the national security of the United States” can have its application banned. That’s very broad authority and it’s hard to imagine how it won’t be abused.
Could Rumble or Truth Social be banned if they allow speech opposing U.S. involvement in Ukraine?
The message to the American people is clear: Congress has no intention of stopping the censorship, and instead, in an election year particularly, it is committed to increasing tools for the government to censor social media in the name of combating foreign adversaries. It’s as if House Republicans have succumbed to amnesia about every other censorship operation these past many years in the name of combating “foreign malign influence” it was committed to defunding just a week or two ago.
Here’s a refresher for how very similar provisions have been used in the past, and how they are likely to be used in the future, to censor the American people, with the past being prologue.
The defund in the Commerce, Science and Justice bill would have addressed for example the FBI’s Foreign Influence Task Force, according to its website, “The FBI is the lead federal agency responsible for investigating foreign influence operations. In the fall of 2017, Director Christopher Wray established the Foreign Influence Task Force (FITF) to identify and counteract malign foreign influence operations targeting the United States.”
The site warned of foreign disinformation, “Foreign influence operations have taken many forms and used many tactics over the years. Most widely reported these days are attempts by adversaries—hoping to reach a wide swath of Americans covertly from outside the United States—to use false personas and fabricated stories on social media platforms to discredit U.S. individuals and institutions.”
And it “provides tools and resources to political campaigns, companies, and individuals to protect against online foreign influence operations and cybersecurity threats,” including on “Disinformation campaigns on social media platforms that confuse, trick, or upset the public”.
And so the Justice Department acted accordingly, throughout the Russiagate fiasco and through the 2020 elections, when it suppressed the Hunter Biden laptop and a video of an alleged 2016 phone conversation between then-Vice President Joe Biden and then-Ukrainian President Pedro Poroshenko said to have been recorded by Poroshenko himself.
The video was published in May 2020 and was later removed by YouTube but is still viewable on web.archive.org, where Biden is heard saying, “[C]ongratulations on installing the new prosecutor general, it’s going to be critical for him to work quickly to repair the damage Shokin did. And I’m a man of my word. And now that the new prosecutor general is in place, we’re ready to move forward in signing that one billion dollar loan guarantee.”
The call’s transcript appears to match the White House’s description of the call on May 13, 2016, according to the Obama White House, Biden had a phone call with Poroshenko about the Prosecutor General’s office, officially welcoming the firing of then Ukrainian Prosecutor General Viktor Shokin: “The Vice President spoke today with Ukrainian President Petro Poroshenko. The Vice President welcomed the appointment of a new Prosecutor General as an important first step to bringing much-needed reform to the Office of the Prosecutor General. The Vice President also commended legislative changes that will set up an independent Office of the Inspector General in the Office of the Prosecutor General and allow prosecutions to begin against Yanukovych-era officials. The Vice President informed President Poroshenko that the United States was prepared to move forward with the signing of the third $1 billion loan guarantee agreement, which will support continued progress on Ukrainian reforms. The leaders also condemned the continued aggression by combined Russian/separatist forces against Ukraine, and agreed on the critical importance of accelerating progress on Minsk implementation by all sides.”
But when the audio was released in 2020 during the presidential election campaign, U.S. officials said that the Ukrainian lawmaker who had released it, Andrii Derkach, was an “active Russian agent”. In a Sept. 2020 AP News story, Nina Janckowicz, then a disinformation fellow at the Wilson Center, told the AP, “It’s certainly an influence campaign… It’s misleading to an audience that doesn’t have the full picture.”
The U.S. Treasury officially sanctioned Derkach in Sept. 2020. According to the Treasury statement, “Derkach has directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign interference in an attempt to undermine the upcoming 2020 U.S. presidential election. Today’s designation of Derkach is focused on exposing Russian malign influence campaigns and protecting our upcoming elections from foreign interference.”
The Treasury’s efforts appeared in tandem with the 2018 through 2020 National Defense Authorization Acts included extensive provisions allowing the government to target what it calls “foreign malign influence” by Russia and other countries, but which was used to target to speech of regular Americans, including violating the freedom of the press as it related to reports about Russiagate and also the Hunter Biden laptop story.
In the 2018 NDAA, under Sec. 1239A it authorized the censorship: “The Secretary of Defense and the Secretary of State, in coordination with the appropriate United States Government officials, shall jointly develop a comprehensive strategy to counter the threat of malign influence” including “the use of misinformation, disinformation, and propaganda in social and traditional media” and “Efforts to work with traditional and social media providers to attribute and counter the threat of malign influence…”
The video of the Biden-Poroshenko call was removed according to the service: “This video is no longer available because the YouTube account associated with this video has been terminated.”
In Dec. 2022, Michael Shellenberger released a batch of Twitter files that highlighted the Justice Department’s role in Twitter’s decision to suppress the Hunter Biden laptop story in Oct. 2020 just weeks before the 2020 presidential election, which revealed Biden’s business dealings with China, Ukraine and others as a potential pay-for-play operation directed at his father, President Joe Biden.
In the months leading up to the 2020 election, the FBI had repeatedly briefed Twitter and Facebook about “hack-and-dump” leak operations by foreign adversaries like Russia to interfere in the election. It cited the 2016 publication of the Democratic National Committee’s (DNC) emails in July 2016 on Wikileaks after Russia allegedly hacked the emails.
And by the time the story was published on Oct. 14, 2020 by the New York Post, these briefings, both before and after the story was published, persuaded Twitter to label the story as potential hacked materials or disinformation.
In one Oct 14 email, Nick Pickles, Twitter’s head of global government affairs stated in an email thread labeled “PRIVILEGED – Hacked Materials updates source-of-truth” that briefings from “government sources… about the source of the hard drive” supported the conclusion the contents were stolen: “the seemingly well-timed briefings from Gov[ernment] sources highlighting concerns about the source of the hard drive, which would support an assessment that it’s neither whistleblower or dissident content.”
That was agreeing with Yoel Roth, Twitter’s former head of Trust and Safety, who stated, “The key factor informing our approach is consensus from experts monitoring election security and disinformation that this looks a lot like a hack-and-leak that learned from the 2016 Wikileaks approach and our policy changes. The suggestion from experts – which rings true is there was a hack that happened, and they loaded the hacked materials on the laptop that magically appeared at a repair shop in Delaware (and was coincidentally reviewed in a very invasive way by someone who coincidentally then handed the materials to Rudy Giuliani). Given the sever risks we saw in this space in 2016, we’re recommending a warning + deamplification pending further information.”
Later, Roth has since confirmed that the government briefings played a significant role in Twitter’s decision-making, telling Kara Swisher, “It set off every single one of my finely tuned APT28 [Advanced Persistent Threat group] hack-and-leap campaign alarm bells.” APT28 refers to one of the groups allegedly responsible for the 2016 DNC hacks that the FBI had been repeatedly warning Twitter about.
The FBI did the same thing to Facebook. The Oct. 2020 Hunter Biden laptop story by the New York Post that was suppressed and labeled as being potentially hacked materials by social media companies like Twitter and Facebook before the 2020 presidential election.
On the Joe Rogan Show on Aug. 25, Mark Zuckerberg admitted that the FBI had approached Facebook with a similar general warning but not about that specific New York Post story, stating, “The background here is that the FBI came to us – some folks on our team – and was like ‘hey, just so you know, you should be on high alert. We thought there was a lot of Russian propaganda in the 2016 election, we have it on notice that basically there’s about to be some kind of dump that’s similar to that’. So just be vigilant.”
But when specifically asked if they told him to be on guard about that story, Zuckerberg replied, “No, I don’t remember if it was that specifically but it was – it basically fit the pattern.”
Zuckerberg added, “if the FBI which I still view is as a legitimate institution in this country — it’s a very, very professional law enforcement — they come to us and tell us that we need to be on guard about something then I want to take that seriously.”
An Oct. 10, 2022 filing by then Missouri Republican Attorney General (now Senator) Eric Schmitt office noted that section chief of the FBI Foreign Influence Task Force Laura Dehmlow and cyber branch head of the San Francisco FBI field office Elvis Chan were “involved in the communications between the FBI and Meta that led to Facebook’s suppression of the Hunter Biden laptop story.”
On Nov. 29, 2022 Schmitt’s office, and also the office of then Louisiana Republican Attorney General (now Governor) Jeff Landry deposed Chan in a federal suit brought by both states against the Justice Department and Department of Homeland Security. Schmitt had told Fox News Digital, “Since filing our lawsuit, we’ve uncovered troves of discovery that show a massive ‘censorship enterprise.’ … Now, we’re deposing top government officials, and we’re one of the first to get a look under the hood — the information we’ve uncovered through those depositions has been shocking to say the least. It’s clear from Tuesday’s deposition that the FBI has an extremely close role in working to censor freedom of speech.”
Despite these revelations being fully briefed on Capitol Hill in the time since, with dramatic public hearings, in the end, Congress could come to no agreement to rein in the censorship at the Justice Department. Which leaves little hope that House Republican provisions defunding the censorship at the Departments of Defense, State and Homeland Security will have survived the negotiation process.
In the Defense appropriations bill that passed the House, in Sec. 8148 there is a defund of the censorship stating “None of the funds appropriated or otherwise made available in this Act may be used to… classify or facilitate the classification of any communications by a United States person as mis-, dis-, or mal-information; or … partner with or fund nonprofit or other organizations that pressure or recommend private companies to censor lawful and constitutionally protected speech of United States persons, including recommending the censoring or removal of content on social media platforms.”
The 2018 National Defense Authorization Act, which easily passed Congress, explicitly included a strategy to combat MDM on social media in Sec. 1239A.
Similarly, in the State and Foreign Operations appropriations bill that passed the House, in Sec. 7070(d) is another such defund stating “None of the funds appropriated or otherwise made available by this Act may be obligated or expended to … classify or facilitate the classification of any communications by a United States person as misinformation, disinformation, or malinformation; or … partner with or fund nonprofit or other organizations that pressure or recommend private companies to censor, filter, or otherwise suppress lawful and constitutionally protected speech of United States persons, including recommending the censoring or removal of content on social media platforms.” That would include defunding monies used by the State Department’s Global Engagement Center in federal election integrity efforts House Republicans have been investigating.
Another such defund would have come in the Homeland Security appropriations bill that passed the House, in Sec. 540 that is a bit more specific that states “None of the funds appropriated or otherwise made available by this Act may be made available to establish or support the activities of … a Disinformation Governance Board at the Department of Homeland Security, or any other entity carrying out similar activities relating to mis-, dis-, or mal-information in a similar manner or to a similar extent to such a Board; or … any entity responsible, directly or indirectly, under color of countering mis-, dis-, or mal-information or otherwise, for instructing, influencing, directing, or recommending that private companies censor, prohibit, or obstruct lawful and constitutionally protected speech of United States persons on social media platforms, including by … terminating speakers’ accounts; … temporarily suspending accounts; … imposing warnings or strikes against accounts to stop future speech; … ‘shadowbanning’ speakers; … demonetizing content or speakers; … adjusting algorithms to suppress or deemphasize speakers or messages; … deboosting speakers or content; … promoting or demoting content; … placing warning labels or explanatory notes on content; … suppressing content in other users’ feeds; … promoting negative comments on disfavored content; … requiring additional click-through(s) to access content; or … any other such methods.”
In 2018, the Cybersecurity and Infrastructure Security Agency (CISA) Act creating CISA passed unanimously as CISA spent years bragging on its website as the agency dmitted that it “rout[es] disinformation concerns” to “appropriate social media platforms”: “The [Mis, Dis, Malinformation] MDM team serves as a switchboard for routing disinformation concerns to appropriate social media platforms and law enforcement.”
It had been going on since at least 2018: “This activity began in 2018, supporting state and local election officials to mitigate disinformation about the time, place, and manner of voting.”
And it was expanded in 2020: “For the 2020 election, CISA expanded the breadth of reporting to include other state and local officials and more social media platforms.”
The agency was bragging about its “rapport” with Big Tech firms in censoring speech so they’re on the same page: “This activity leverages the rapport the MDM team has with the social media platforms to enable shared situational awareness.”
During the pandemic, CISA also targeted Covid “disinformation” too: “COVID-19…create[d] opportunities for adversaries to act maliciously. The MDM team supports…private sector partners’ COVID-19 response…via regular reporting and analysis of key pandemic-related MDM trends.”
These defunds combined could have made a serious dent in federal government programs that may yet play a pivotal role in policing speech on social media in the 2024 election now upon us between former President Donald Trump, the presumptive Republican nominee, and incumbent President Joe Biden. Instead, all that will have to wait until after the elections should Republicans prevail.
But in the meantime, with the bans on “foreign adversary controlled applications” moving forward, it is hard to see how that would ever happen.
In the past, the only hope for expanding policy riders in appropriations legislation has been when Republicans have held the House, Senate and the White House simultaneously. Otherwise, there appears to be very little incentive for either party to broker deals impacting policy in situations like the mixed government we see today. We could be surprised by the second omnibus bill in the offing, but with more tech bans to stop foreign agents in the pipeline, it appears highly unlikely — which is great news for the censors, and bad news for the American people.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
