By ASHA RANGAPPA
September 08, 2017
I fought foreign propaganda for the FBI. But the tools we had won’t work anymore.
Any doubt that Russia has been running a strategically targeted disinformation campaign in the United States was erased on Wednesday, when Facebook revealed that it had deleted 470 “inauthentic” accounts that were based in Russia and had paid $100,000 to promote divisive ads during the 2016 presidential election.
Senator Mark Warner of Virginia called Facebook’s report the “tip of the iceberg,” and he’s right. As a former FBI counterintelligence agent who investigated foreign propaganda cases, I’ve seen firsthand how foreign intelligence services leverage American freedoms—and the constitutional limitations on the FBI’s investigative power—to their advantage. The rise of social media platforms makes the pervasiveness and impact of these operations today exponentially greater. And it leaves the FBI without the legal tools to stop it.
The vast majority of counterintelligence cases I worked in the FBI involved a foreign intelligence service (FIS) conducting what we called “perception management campaigns.” Perception management, broadly defined, includes any activity that is designed to shape American opinion and policy in ways favorable to the FIS home country. Some perception management operations can involve aggressive tactics like infiltrating and spying on dissident groups (and even intimidating them), or trying to directly influence U.S. policy by targeting politicians under the guise of a legitimate lobbying group. But perception management operations also include more passive tactics like using media to spread government propaganda—and these are the most difficult for the FBI to investigate.
My experience investigating foreign propaganda operations predated the proliferation of social media platforms. But understanding how investigations worked before the information explosion is critical to understanding the magnitude of the Russian threat today. In the “old days” (i.e., 10-15 years ago), a disinformation operation typically involved an FIS tasking one of its agents to recruit a journalist and become his or her source. In this way, the FIS could essentially make the journalist an unwitting mouthpiece for foreign government interests.
The FBI has few options in this kind of situation. There’s no law preventing a journalist from publishing whatever they want. The most the bureau can do is warn the journalist they are being targeted by foreign intelligence, in the hopes that their professional standards will at least cause them to account for their source’s bias in their reporting. Frankly, though, the FBI is wary of getting too close to a reporter’s free speech rights: Since the Church Hearings, the FBI and the First Amendment are two great tastes that don’t go great together, and approaching a journalist in a counterintelligence investigation has all the ingredients of a PR disaster. Given the extensive internal authorizations and bureaucratic paperwork required merely to talk to a journalist, most FBI agents are loath to go down this path. I did it only once.
Still, the FBI has a legal duty to stop, or “neutralize,” foreign intelligence operations occurring on U.S. soil. In the case of propaganda operations, one effective way to do this while avoiding First Amendment land mines is to approach the FIS agent directly. There isn’t exactly a law that prevents an agent from being a “source” for a journalist. But there is a law called the Foreign Agent Registration Act (FARA) that requires any individual acting on behalf of foreign interests to register as a foreign agent with the State Department. In fact, FARA was passed in 1938 to counter Germany’s dissemination of Nazi propaganda in the United States; DOJ notes that the purpose of the law is “to insure that the U.S. Government and the people of the United States are informed of the source of information (propaganda) and the identity of persons attempting to influence U.S. public opinion, policy, and laws.” Violating FARA is a felony, punishable by up to five years in prison. Though FARA rarely results in a criminal prosecution, in my experience, forcing a FIS agent to out themselves as a spy with the State Department under the threat of criminal charges was usually enough to get them to drop their efforts and go scurrying back into the shadows.
But that was then. Today, the expansion of social media platforms has drastically skewed the already unequal balance of power between the FBI and its adversaries. For one thing, the FBI is no longer dealing with individual journalists or media outlets: The bureau is now faced with huge private companies, like Facebook and Twitter, which are ostensibly neutral and have no professional or ethical obligation to vet the material they distribute. Further, FIS propaganda agents are no longer human operatives on American soil—they are invisible “trolls,” often operating from a foreign country and behind social media accounts that make them impossible for the FBI approach directly. Or, in the case of so-called bots—software programs designed to simulate humans—they might not even be people at all.
As the internet renders useless the FBI’s normal methods to counter foreign propaganda, the reach of these operations has increased a thousandfold. In the past, a failure to neutralize a perception management operation would at least be limited by the reach of “traditional,” i.e., paper, media which are practically constrained to a region or paying customers. But social media platforms can reach an almost limitless audience, often within days or hours, more or less for free: Russia’s Facebook ads alone reached between 23 million and 70 million viewers. Without any direct way to investigate and identify the source of the private accounts that generate this “fake news,” there’s literally nothing the FBI can do to stop a propaganda operation that can occur on such a massive scale.
This fact is not lost on the Russians. Like any country with sophisticated intelligence services, Russia has long been a careful student of U.S. freedoms, laws and the constraints of its main nemesis in the U.S., the FBI. They have always known how to exploit our “constitutional loopholes”: The difference now is that technology has transformed the legal crevice in which they used to operate into a canyon. The irony, of course, is that the rights that Americans most cherish—those of speech and press—and are now weaponized against us are the same ones Russia despises and clamps down on in its own country.
So where does that leave our counterintelligence efforts? Short of allowing the FBI to unilaterally access and police social media accounts—which would make us start to look a lot like Russia—we need to think creatively about ways to bridge the legal gaps that now benefit our adversaries. Currently, platforms like Facebook and Twitter have little incentive to help counterintelligence beyond their own goodwill. But Congress could pass legislation that requires social media companies to cooperate with counterintelligence in the same ways they do with law enforcement. For example, the Communications Assistance for Law Enforcement Act (CALEA) requires telecommunications companies to design their digital networks in such a way that would permit wiretaps for criminal cases. Similarly, requiring social media platforms to develop ways to vet and authenticate foreign users and proactively report potential bots to the FBI would enable the FBI to identify perception management operations as they are occurring. In addition to monitoring these specific FIS-based accounts, the FBI could publicly expose the source of particular accounts, ads or news, creating the same kind of transparency that FARA originally sought to do with traditional propaganda.
Another option is to borrow from the counterterrorism toolbox and designate entities known to be acting on behalf of foreign intelligence—like Russia’s “troll farm,” the Internet Research Agency—as nonstate intelligence services, the same way we now designate some nonstate actors as foreign terrorist organizations. This would drop some of the First Amendment barriers on counterintelligence operations against the individuals who knowingly assist and facilitate these entities, since they would become “agents of a foreign power” and fair game for traditional counterintelligence techniques like FISA surveillance orders.
Any solution that we create will require a balance between national security interests and constitutional rights. But at this point, we have no choice: It’s clear that our current counterintelligence strategy hasn’t caught up to the age of asymmetrical information warfare. Until it does, we’ll be silently allowing our freedoms to be manipulated to Make Russia Great Again.
Asha Rangappa is an associate dean at Yale Law School and a former special agent in the Counterintelligence Division of the FBI.
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