Backlash from DHS Anti-Misinformation Committee shows how US law is falling behind the issue

The rapid response to a new federal anti-disinformation council shows how quickly misconceptions can spread and also how slowly changing federal law is hampering efforts to counter them.

On Wednesday, Department of Homeland Security leaders announced the formation of a Disinformation Governance Council to counter harmful misinformation specifically targeting migrants. Such misinformation has “helped fuel sudden surges on the U.S. southern border in recent years,” according to an AP article about the new council.

Some were quick to complain. “Rather than protecting our border or the American homeland, you have chosen to make surveillance of American speech your priority. This new council is almost certainly unconstitutional and should be disbanded immediately, wrote Sen. Josh Hawley, R-Missouri, who last year encouraged rioters on the U.S. Capitol.

Of course, nothing in the statements of DHS or other officials suggests that the new council will suppress constitutionally protected speech.

But the question of what the board is allowed to say is a bit more ambiguous. US law broadly authorizes the federal government to inform the public about public safety, the law itself, etc. But other laws prohibit the government from engaging in anything that might be called influence operations aimed at the American people.

These activities are governed by the Smith-Mundt Act of 1948, which essentially authorizes the State Department to engage in influence operations aimed at a foreign audience, but the law (and a later “modernization” of the law) expressly prohibits the state from attempting anything similar aimed at domestic populations.

But does that prohibit DHS from doing so? To some extent, the question is open because the 20-year-old department never tried.

“The DOD accomplishes information-based military objectives. Each of the departments can deal with public affairs, i.e. informing the American public, not influencing them, then the Department of State can deal with public diplomacy, which is influencing the foreign public . Where is DHS? Obvious absence. said Michael Lumpkin, a former Navy SEAL and Department of Defense official who established the State Department’s Global Engagement Center to counter foreign disinformation operations.

According to one interpretation of the law, since it is illegal for the State Department to conduct national influence campaigns, it is also illegal for DHS. Another is that because DHS is not explicitly named in the Smith-Mundt Act, which predates it by decades, it is free to conduct influence operations.

This ambiguity could damage the credibility of the new DHS board of directors, and thus cripple it from the start. If a new administration takes over with radically different views than the current one, who may perceive different limits on government discourse and even a different definition of basic facts.

The regulation of government messaging is of concern to all political parties. In 2019, the appointment of Michael Pack to head the US Agency for Global Media at the State Department prompted a similar response from Trump critics. “We must strengthen laws to impose disclosure requirements for government messages to prevent the use of secret domestic propaganda to shape American public opinion,” wrote Raya Koreh of the Brennan Center in The hill. “A healthy democracy depends on the public’s ability to hold government to account for its messages, and government news must be unequivocally recognizable for what it is.”

But while there may be a need for new legislation to better define the guardrails of government discourse, it’s hard to imagine a bipartisan consensus on how to write such a law.

“My feeling is that the Hill [meaning Capitol Hill] run away from that because it’s a slippery slope,” Lumpkin said. “We just haven’t seen a champion who says, ‘Okay, we need to modernize, you know, things. [like government speech] for social media for the world,” because it’s really complicated.

About Marjorie C. Hudson

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