The Washington Post ran a headline two weeks ago that captured the country’s fevered mood perfectly: “Wondering if the Russians reached you over Facebook? You can soon find out.” In a middling bit of clickbait, the Post managed to conjoin the prevailing sentiment of collective victimhood with the media’s favorite theme of 2017: Russia’s attempts to influence last year’s presidential election. “Together nearly 150 million Facebook and Instagram users may have had pieces of Russian disinformation content—both paid ads and free posts—reach their accounts,” the article gravely intones, before admitting that there’s no way of telling how many people actually noticed the content being fed to them.
Of course, Russia did try to disrupt and undermine trust in our elections. Hacking into people’s servers and strategically leaking purloined emails is egregious behavior that deserved the sanctions Congress mandated in response. Public discussion has gone beyond that, however, with embittered Clinton supporters in particular convincing themselves that Russian attempts at information warfare on social media successfully changed voters’ minds, and may have had a material effect on the election’s outcome. While writers like Masha Gessen have argued that Russia’s efforts were ineffective, they haven’t convinced many. In part this is because it’s difficult to prove a negative. And in part, it’s because the debate over Russian hacking appears to have surfaced latent anxieties over how social media is affecting society.
It’s tempting to dismiss the whole thing as just another moral panic among coastal elites set off by the election of Donald Trump. But we shouldn’t. Even if the Russians failed in their task, the concerns being voiced are real, and the consequences of some of the remedies being proposed could be lasting. What follows is not a definitive treatise as much as a set of thoughts to stimulate further argument. The moment is ripe for a good, calm discussion.
What does it mean to “influence” a voter? Loose talk of Russian information warfare has occluded some of the basic issues at play. Stripped down, an “influence campaign” is just another term for what we think of as politics in a modern democratic society. One might object that this was not always the nature of politics—that things changed since the advent of television, and for the worse. Modern political campaigns are arguably less about citizens freely associating and debating issues as the Founders might have imagined, and have instead become slick marketing campaigns that generally flow in one direction: from party or candidate to voter. But let’s leave aside for the moment whether this marketing paradigm shift is bad for our democracy in the long run. Today, it is a fact of democratic life: deep-pocketed political parties run “influence operations” on voters to secure victory in elections.
What the Russian operation seems to have crystallized in many people’s minds is the conviction that we object to our citizens being influenced by non-citizens. The idea of sovereignty in a democracy is tied to the sovereign will of its people, and the intuition underlying the recent outrage is that our sovereignty is compromised if a citizen’s vote is somehow swayed by foreigners. But does that intuition remain coherent under scrutiny?
Given the state of technology at the time, the Founders were less worried about manipulation of voters by foreign media, and instead focused on preventing foreign money and gifts from directly influencing office-holders. Over time, however, the original intent of the Founders’ famous “emoluments” clause has been watered down. The Nazi-era Foreign Agents Registration Act, originally meant to counter foreign propaganda, is these days mainly invoked as an important precedent for how we should force transparency on foreign lobbying. Indeed, in its modern, toothless guise, it implicitly approves foreign countries spending money to influence our democratic processes: it’s all legal as long as it’s transparent. And in deciding Citizens United, the Supreme Court further complicated the issue by ruling that political spending by corporations—buying political ads—is equivalent to speech. The Court didn’t explicitly mention foreign money in its ruling, and most have argued that it would not stand in the way of Congress putting up further restrictions on foreign money entering our system. But given the complex nature of corporate ownership, the ruling did open the door further to foreign money influencing U.S. citizens’ vote.
The problem is with the category of “speech.” Though foreign money being spent in our elections remain illegal as a matter of law, speech is very difficult to restrict under the U.S. Constitution, even for foreigners. The 14th Amendment, which stipulates that a state cannot “deny to any person within its jurisdiction the equal protection of the laws,” is frequently invoked when these kinds of questions arise. This tension, between statutorily illegal influence and protected free speech, resolved itself in a fascinating way last month. Increasingly frustrated with the Trump Administration’s lack of enthusiasm for punishing Russia’s meddling, Congress compelled the Russian television station RT to register as a foreign agent under FARA, ostensibly invoking the old law in its original intended context. RT’s ability to broadcast was not impinged upon, but it was forced to completely disclose its funding. Influencing American citizens through speech is fine, the reasoning goes, as long as it’s made abundantly clear if the influence is coming from abroad.
For some, foreign influence is not troubling. As Masha Gessen argued in a recent interview, the idea that a foreigner, who is in all likelihood going to be affected by American policies, would seek to influence an American’s vote is not only normal, but acceptable. For others who believe in the importance of guarding democratic sovereignty, that arrangement does not feel wholly satisfying. But even sovereigntists should be able to convince themselves that demanding absolute transparency from foreigners is a good-enough compromise solution. Voters, it has to be assumed, know their own interests, and if provided with adequate information on who is trying to convince them of something, can make sound decisions. Transparency, however, remains paramount.
But it doesn’t end there. If we take the reasoning outlined above as an adequate model for how to approach these issues, we find ourselves confronted with another problem: How do we square our stated need for transparency of political speech by foreigners with the pervasive anonymity of the internet? The easy response is to call for social media companies to immediately start verifying the identities of all their users. Cyber expert Clint Watts, testifying before the Senate Judiciary Committee earlier this year, put it succinctly:
With features like account anonymity, unlimited audience access, low cost technology tools, plausible deniability—social media provides Russia an unprecedented opportunity to execute their dark arts of manipulation and subversion.… Anonymous posts of the Kremlin’s design or those generated by the target audiences power smear campaigns and falsehoods that tarnish confidence in America and trust in democratic institutions.
Watts is correct to raise an alarm. While our hyper-connected reality does multiply opportunities for free expression, it is not obvious that it automatically leads to a better, or more liberal, democracy. The opportunity to exploit the system and its inherent anonymity—even if only to create chaos in an “open” system—cannot not be easily dismissed.
Still, it’s important not to assume that all of these issues are new. Pundits have noted that the rise of radio spooked people in much the same way that the rise of the internet seems to be doing today. Even back then, elites had worked themselves up into a froth fretting over how susceptible and helpless the common man is to the messages he passively receives over the air. And anonymity itself arguably has an even longer pedigree. The various pamphlet wars throughout history featured anonymous authors on all sides of any one argument. In the United States, “Common Sense” was released without the name of its author (Thomas Paine). The essays comprising the Federalist Papers were also published anonymously. The idea that a foreign power might try to smuggle in texts hostile to a country’s ruling order is also not new. This practice reached an early peak during the height of the Counter Reformation, with the Catholic Church working hard to get its pamphlets into Protestant England and the Netherlands, and has continued ever since.
Responses to these threats, real or perceived, have also been attempted. Widespread concerns about mass media’s pernicious effects did trigger its regulation. In the United States, for example, the late 1930s and early ‘40s saw the rise of the Federal Communications Commission and the implementation of the Fairness Doctrine. (Our own Martha Bayles has argued that the weakening of these early initiatives has had an overwhelmingly negative impact on the quality of our democracy.) And neither Henry VIII nor Queen Elizabeth looked upon Catholic meddling, anonymous or not, with equanimity. Many a head was severed to prevent and deter the circulation of seditious materials. Today, Watts is right to focus on the question of scale of social networks—the “unlimited audience access” at staggeringly “low cost.” Queen Bess could have been in real trouble if the Holy See had had access to Twitter and Facebook. Similarly, one wonders how the American Revolution would have gone had the British been able to deploy an army of bots in the service of the Crown. And anonymity at scale, leveraged by a hostile foreign power, is of particular concern.
Still, it’s not obvious that there is a strong legal case to be made for compelling social media companies to unmask their users, at least in the United States. While anonymity itself is not granted blanket protection in the U.S. Constitution, various judges have argued that one can read implicit guarantees in the text. Ever since the Supreme Court ruled in 1995 that an Ohio state law preventing the distribution of anonymous campaign literature was an unconstitutional limitation on free speech, a growing body of case law has been delineating where the appropriate balance lies. One intuition underlying these debates is that only anonymity can allow for certain ideas to be considered fairly and on their own terms, independent of any prejudice attached to the author. Social media companies are likely to invoke this rationale and this precedent if the government attempts to force them to change their ways. One could imagine a First Amendment absolutist making the case for Russian disinformation campaigns, saying that distributing “divisive” information is in no way illegal, and that under the 14th Amendment, the same anonymity protections afforded Americans should apply to foreigners as well.1
In other words, our desire to impose transparency on foreign influence in the United States runs headlong into the robust constitutional protections surrounding free speech.
Does this mean we are at an impasse? Not necessarily. Even if it might be unconstitutional to compel companies to fight anonymity on the internet, a moral case can and ought to be made for it. Silicon Valley’s tech titans are, after all, public companies, susceptible to pressure both from their customers and their shareholders. As I suggested above, the resonance of the Russia story suggests that the outsize effects of social media are making people nervous. This is a good opportunity to articulate some of these broader anxieties, quite independent of the vexed legal question of foreign influence, in order to encourage change on an emerging industry loath to undertake it.
One such argument is that the kind of easy anonymity afforded by social networks quickly brings out sociopathic behavior in many users. It’s one thing to avail oneself of anonymity to speak out about ideas that could threaten one’s career or one’s personal safety. It’s another to act irresponsibly, using anonymity as a shield from social censure. Civility is in large part a product of concern for one’s reputation. If one can free oneself from the threat of all consequences, all sorts of shameful acts become conceivable, including harassment and freely issuing death threats.
This need not mean that companies demand that people only post under their real names all the time. Pseudonyms could, and perhaps should, continue to exist. But it would mean that every active account be matched to a real person by the tech titans, so that a potential chain of accountability exists somewhere. Obviously this would not be a perfect solution, especially for human rights activists who may not trust the likes of Facebook or Twitter to keep that information adequately secure. Unfortunately, there is no way to both create accountability and ensure perfect anonymity for vulnerable users. While it might be true that both the Maidan in Ukraine and the Arab Spring across the Middle East would not have been quite as big without the level of credible anonymity afforded to users on these social networks, this is a cost I suspect most citizens of Western democracies would be willing to countenance.
Democracies require an active and engaged citizenry. But they also require a responsible citizenry. Responsibility entails owning your speech, not carelessly sniping at your fellow citizens and political enemies. Never in the history of humanity have states grappled with the scale of something like the anonymous internet, and in aggregate, there’s little to suggest that such a thing is healthy for societies. The “public square” has atrophied into a mere metaphor as democracies themselves have scaled up, but taken literally, it points to a lingering antecedent prevalent in earlier times: an open public space where people would meet face-to-face to discuss the issues of the day. We need to try to keep this idea firmly in mind as we think our way through the consequences of emerging technologies in these uncertain times. Achieving perfect accountability is an unlikely end state. But fetishizing anonymity as some desirable baseline similarly cannot be the way forward.
1. This of course brings into question the limits of U.S. territorial jurisdiction given the global reach of the internet—an even more complex subject that is well outside the scope of this short essay.