A modest proposal for countering Russian election interference

Jonathan Swift meets Vladimir Putin

|The Volokh Conspiracy |

What can we do to counter Russian "hack and dox" interference with US election campaigns and candidates?  A lot more than we think, as long as we're willing to open the first amendment Overton window.  I posted my modest proposal on the topic over at Lawfare.  Here's the gist:

Of course, stopping the dissemination of such information raises real First Amendment questions, but the Supreme Court's pronouncements on this topic have been surprisingly qualified and leave plenty of room for legislation that would drain much of the fun out of Russian cyber-kompromat. In the leading case, Bartnicki v. Vopper, the court refused to enforce a statutory prohibition on disseminating the contents of illegally wiretapped conversations. The conversation in question was a cell phone call in which a member of a teachers' union said to the union's negotiator that if the school district didn't improve its offer to end a strike, "we're gonna have to go to their, their homes … to blow off their front porches, we'll have to do some work on some of those guys." The Supreme Court's opinion considered two principal justifications for a ban on dissemination of tapped conversations—deterring wiretapping and preserving privacy. The court dismissed the first because it thought deterrence could be achieved by prosecuting those who conducted the illegal tap. It was troubled by the second, recognizing that failing to punish the disclosure of private conversations was itself likely to restrain private speech. Nonetheless, in an expressly narrow decision, the court concluded that the conversation being disclosed was a matter of public concern, so that prohibiting dissemination would trench too far on freedom of speech. Two justices who were necessary to the majority wrote separately, narrowing the decision further by declaring that only a communication threatening physical harm or the like was of sufficient public concern to justify overriding the dissemination ban.

To my mind, this decision leaves plenty of room for imposing restraints on the distribution of private emails stolen by a foreign government. The government's interest in protecting private speech remains strong in the case of foreign government hacking, and it is bolstered by a deep national security concern that was quite lacking in Bartnicki. What's more, the Bartnicki court's notion that such thefts can be deterred by criminal prosecution is demonstrably wrong where government hackers are concerned. We've indicted Russian, Chinese and Iranian government hackers; it hasn't deterred any of them for long. Even taken at face value, the decision protects only dissemination that addresses a matter of public concern. That by itself would seem to allow Congress to restrict massive dumps of private communications that do not touch on significant public issues, let alone make threats of violence.

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22 responses to “A modest proposal for countering Russian election interference

  1. Or we could just ignore them, stop worrying, since they’d have to spend a fortune in hard cash (ruble isn’t convertible, is it?) to actually matter when each candidate spends over a billion dollars.

  2. How does anyone stop the distribution of information?
    You mean like in China?

    1. More like in Beyonce and P!nk.

  3. The first thing we should do is recognize that it wasn’t “election” interference, it was “campaign” interference.

    And then make some serious efforts to prevent it from becoming election interference in the future, like banning all modes of voting that don’t involve a human directly marking a physical object that will be retained and counted.

    Most forms of computer voting scare computer scientists spitless. We’re nowhere near making it secure.

    And while we’re at it a ban on vote harvesting in federal elections would be a good idea, too.

  4. Huh? Leaking private E-mails is only damaging to a candidate if the public wouldn’t like them if they actually knew the truth about them…. Also, how is proof of bribing one of the two major parties to throw the primary for you not a matter of public interest? Who will protect us from Hillary meddling in national elections absent such leaks?

    1. This is fine to expose and embarrass candidates by revealing secret things, but the problem is it is one-sided. So it is properly denied to those in power.

  5. Hmm…how about the U. S. setting a good example by not interfering in other countries’ elections?

  6. Boo this man!

  7. Heaven forbid we protect our democracy (democratic republic for the inane) from foreign interference. You know the Republicans would be all over it if it benefited Democratics instead of them. Traitorous fucks.

    1. And heaven help us interfere in foreign elections? Naw, we don’t need no help, we do it plenty fine by ourselves.

  8. Maybe we should start with preventing domestic interference, using things like FISA warrants, first.

  9. I’m in the “ignore it” camp. I think that information will, like water, “leak out”. And, it’s best if we get EVERYTHING out in the open.

    “Secrecy begets tyranny.” —Robert A. Heinlein, Stranger in a Strange Land

    Besides embarrassing politicians and bureaucrats is the best medicine for these pompous fools who think they are essential to “leading the parade”.

    Gooferment is immoral, ineffective, and inefficient. As well as untrustworthy.

  10. Mr. Baker
    The release of documents in the 2016 election only impacted that election because the voters found the (true) conduct disclosed to be relevant to their voting decisions.
    In other words, the information was almost by definition newsworthy. Thus, I cannot imagine how a law prohibiting the disclosure of such information could withstand a First Amendment challenge.
    Moreover, your proposal seems to be based on the idea that we are better off is voters are kept ignorant of newsworthy information. Was the fairness of the 2016 election harmed by allowing the public to learn the DNC had cheated Bernie Sanders, and that Hillary Clinton held “public” and “private” positions on key issues?
    Now it may be that massive data dumps also disclose salacious but non-newsworthy info, but the idea that the government would have the pre-clear such a disclosure is Orwellian. Moreover, if the info is truly private, the harmed person could bring a tort action like the lawsuit that Hulk Hogan brought against Gawker.
    Your proposal seems like a fast ride down a slippery slope.

  11. Why exactly is the spread of disinformation through social media by Russians any worse than the spread of disinformation by American media giants like the NYT, WaPo, CNN, MSNBC, NBC, etc.? For what it’s worth, I am MUCH more concerned about the latter than the former. And, as far as that goes, I am much more concerned about American politicians lying to us than the Russians. It USED to be that we could trust news outlets to call politicians on their lies. Now, they are complicit in spreading the falsehoods.

    1. ” It USED to be that we could trust news outlets to call politicians on their lies.”

      Eh, not as much as you think. It was more a matter of their having a sufficient choke hold on the means of communications in the country that what they didn’t want to get out mostly didn’t. So you wouldn’t be aware of their misbehavior.

      To some extent they ARE worse today, though. I think it’s mostly because the left has become so dominant in the media that they no longer worry about being exposed by other media outlets; To the extent there even ARE other outlets that don’t share their bias, they’re not reaching the MSM’s target audience.

  12. I agree with up thread comments.
    We can’t trust our own govt leaders not to interfere in political campaigns.
    President Trump just spent some alone time with the Queen of England. She is going to direct MI5 to start running British operatives (spies) at Democrat Campaigns, to frame them for conspiracy with adversarial foreign governments. Pretty easy, the template has already been cast

  13. “…imposing restraints on the distribution of private emails stolen by a foreign government.”

    I’d be interested in Mr. Stewart’s comments re: the theory that the DNC emails couldn’t have been hacked since the rate of transmission was too high to have happened via an internet connection.

    1. Apologies, I meant Mr. Baker’s comments…

    2. I’m skeptical. There’s a lot of evidence the Russians hacked them, so the counternarrative needs more than one piece of evidence.
      Also, without being expert, I suspect those rates of transmission could reflect an intermediate download to a DNC server — inside the DNC network. That would be logical if the data was assembled, mass-encrypted, and then exfiltrated in a giant blob. Which is probably a lot more common than individual downloads of individual documents.

      1. ” There’s a lot of evidence the Russians hacked them, ”

        Last I heard, our intelligence services had no direct evidence of this, due to the DNC’s refusal to let anybody but their own cyber-security vendor, Cloudstrike, have access to the servers.

        And, remarkably, our intelligence services took “No” for an answer in a supposed national security investigation. That still amazes me.

        Now, this is not to say that the Russians didn’t get their hands on the files at some point. I’m just saying we’re stuck taking Cloudstrike’s word for who did the actual hack.

      2. This sounds like a good theory of how that could happen, but also necessitates other servers to have been compromised. What was the result of the investigation into more widespread espionage from the FBI?

        Oh, they didn’t investigate, at the specific request of the DNC? Nah, that’s not suspicious at all.

        The problem here is that everyone involved in this acted exactly as if it was an inside job, and Russia was being framed to cover up DNC incompetence. Is that what happened? We’ll never know, but the evidence (that’s public, at least – there may be evidence the FBI is keeping under its hat) is entirely congruent with the “disgruntled DNC employee exposed wrongdoing within her organization.”

  14. How about the US government quit interfering in other countries political processes/elections and see if that helps with them not interfering in out elections?

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