Government Efforts To Censor Social Media Should Be Transparent

Last week, the conservative news site Just the News reported that government agencies were outsourcing their attempts to censor social media to a private consortium. While this story feeds into conservative paranoia about bias against conservative groups, it also raises important issues of improper attempts by government agencies to circumvent free speech constraints. It suggests, at a minimum, the need for a regime of transparency and disclosure to prevent mission creep and political manipulation.

The private sector group involved, a consortium called the Election Integrity Partnership, included the Stanford Internet Observatory, the University of Washington’s Center for an Informed Public, the Atlantic Council’s Digital Forensic Research Lab, and social media analytics firm Graphika. This consortium of serious and responsible organizations worked with the Department of Homeland Security (DHS) to pass on to social media companies certain posts they considered election misinformation during the 2020 election. Social media platforms could take action or not when they received these referrals. But the platforms apparently took action about a third of the time, according to the group’s report on the 2020 effort. The group is getting the band back together for the 2022 election.

Just the News alleged that this public-private partnership is a thinly veiled attempt to evade First Amendment restrictions on government censorship and compared it to the now discredited and discontinued Disinformation Governance Board.

It is worth noting that DHS in its August 24 press release announcing the termination of the Disinformation Governance Board reaffirmed that “countering disinformation that threatens the homeland, and providing the public with accurate information in response” is part of DHS’s mission. As part of this mission, since 2018, DHS’s Cybersecurity and Information Security Agency (CISA) has been referring to social media platforms posts it thinks constitute election disinformation and will almost certainly continue to do so.

The issue of private sector collaboration is a red herring. Whether CISA or any other government agency works through a consortium of private sector companies or directly with social media companies seems irrelevant to the policy and speech issues involved.

It is also worth noting that other countries have similar government operations, generally called internet referral units. And they are controversial around the world. Several years ago, there was an attempt to write them into the European Union’s terrorist material directive but as law scholar Daphne Keller noted objections from civil liberties moved the European Parliament to discard that section of the regulation.

Israel’s version of an internet referral unit is called the Cyber Unit and its operations have been cleared by its courts of any free speech violations. It regularly refers Palestinian posts to social media companies for action. But a report from a business group in September suggested that social media companies were biased in their content moderation actions involving these posts. The report recommended transparency among other reform measures.

That seems to me to be a reasonable first step, even if further restrictions might be needed to protect free speech. If an agency of government refers material that it thinks is illegal or violates a company’s terms of service, it should make that referral public, and not just transmit it to social media companies in secret. It does not and should not matter whether the agency launders that referral through a private sector consortium. The agency should also publish regular summary reports of its activities. The reports and the underlying data should be available to independent researchers for review.

Private sector actors who pass on government referrals should also report on their activities in enough detail so that independent researchers can evaluate what they have done. The Election Integrity Partnership took a first step in this direction with its retrospective report, but it should be transparent in real time as well as publishing an after the fact summary of its activities.

On the social media side, the companies should reveal what referrals their receive directly or indirectly from government agencies and which ones were acted on and why. This too should be done in real time, with notification to the user whose posts were affected that the actions were taken at the suggestion of a government agency and which agency was involved.

As renowned Supreme Court Justice Louis Brandeis noted, sunlight is the best disinfectant. Government activities and related public-private partnerships aimed removing material from social media need a little disinfectant.