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The Technology 202

A newsletter briefing on the intersection of technology and politics.

The Justice Department wants to bring foreign influence law into the social media age

The Technology 202

A newsletter briefing on the intersection of technology and politics.

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Below: Larry Ellison was on a call about questioning the 2020 election's legitimacy, and Ukraine’s tech community is trying to rebound. But first:

The Justice Department wants to bring foreign influence law into the social media age

For decades, prosecutors have used a law known as the Foreign Agents Registration Act (FARA) to prosecute people trying to covertly influence the U.S. public or lawmakers for foreign entities — everyone from Nazi propagandists to former president Donald Trump’s 2016 campaign chairman, Paul Manafort, who Trump eventually pardoned.

Now, the Justice Department is grappling with how to apply the 84-year-old foreign influence law in the 21st century, including by looking at how it should regulate operations on digital platforms like Facebook and Twitter. But that raises the question of how far the Justice Department should go to revamp the law for an age of social media.

Under FARA, many of the people or firms who try to influence the U.S. public for foreign entities have to register with the Justice Department. The law requires that those agents — who are largely located within the United States — file paperwork showing their activities, income and expenses relating to their influence operations. It also requires that agents file copies with the Justice Department of some materials they share with multiple people, and attach disclaimers to those communications so that those who are the targets of the operations know who’s behind the campaign. 

For example, the law covers many lobbyists who try to influence Congress for foreign governments. Public relations agencies, the U.S. branches of foreign political parties and state-run media outlets — including the company that operates Russia Today — have had to register under the law.

The regulations around labeling disseminated materials last got a major update nearly two decades ago, years before Twitter, Instagram and TikTok were founded. 

But the law as it stands just isn’t equipped to handle a flurry of social media influence operations, experts say.

For one, foreign governments, tourism agencies and companies from China to Saudi Arabia have used social media influencers to promote their countries, but those influencers haven’t registered with the Justice Department and their posts don’t have disclaimers saying they’re working for foreign entities.

Meanwhile, accounts that have disclosed their work for foreign entities put labels in different places online. Some have put those disclaimers in tweets themselves, which can be difficult because of Twitter’s 280-character limitation; some add the disclaimer as “quote tweets”; and some put it in their bios, which can be harder to find on platforms like Facebook.

“FARA is in serious need of an update,” Brandon Van Grack, a partner at Morrison Foerster who previously led the Justice Department’s FARA unit, told me in an email. “It’s a statute from the 1930s trying to regulate communications in the digital era.” 

“The rules haven’t been updated in decades, and during that time the means by which we consume information and news has completely transformed,” he said.

The Justice Department knows that times have changed. The FARA unit “believes that the labeling requirement needs to be updated to address the Internet and social media as means of conveying informational materials,” the DOJ’s internal watchdog wrote in a 2016 report.

Officials were blunter in December, writing that the regulations “do not reflect the challenges of labeling informational materials disseminated through various online media platforms.”

The Justice Department made the first step toward a potential update in December, issuing a preliminary notice explaining it is “considering amending and updating” the rules, in part to “modernize the regulations to clarify how they apply to social media.” It’s a first step toward potential rulemaking to update the law. 

The Justice Department “is moving forward on the rulemaking,” DOJ spokesman Luis Rossello said.

In December, the Justice Department asked the public for recommendations about how to update the rules for the 21st century:

  • It asked for suggestions on how to require disclaimers on platforms “where text space is limited,” an apparent reference to Twitter and other platforms that limit the number of characters users can use.
  • It also asked about what information — like the social media user’s relationship to the foreign entity, and that entity’s country — should be included in the disclaimer.

By February, nearly two dozen law firms, nonprofits and other groups had responded. Almost half of those respondents mentioned social media or modernizing the law for online communications.

But beyond the questions the Justice Department asked, some experts are calling for a broader revamp.

Some pointed at the law’s apparent failings. “The Department should update the regulations to account for the growing use of social media influencers in foreign principals’ attempts to influence the U.S. public,” wrote Ben Freeman, a research fellow at the Quincy Institute think tank. 

The Justice Department should publish a public letter or do something similar “explaining to these companies that their platforms are being used by what appears to be unregistered foreign agents and calling on their social media companies to do a better job of policing,” Freeman told me.

A dialogue between the Justice Department and social media companies could be useful, said Anna Massoglia, the editorial and investigations manager at OpenSecrets. (Full disclosure: In March, I gave a presentation with Massoglia on resources to investigate foreign influence.) 

Twitter declined to comment. Facebook did not respond to a request for comment.

Such a conversation could help the Justice Department understand current and future technologies, the effectiveness of previous efforts to clamp down on disinformation and the least burdensome and most effective solutions for the companies, Massoglia said. 

“The DOJ absolutely should be working with social media companies,” Van Grack said. “If it’s going to regulate communications and conduct for the next 80 years, it should be thinking about what is next and what is possible.”

Our top tabs

Oracle chairman joined call about questioning legitimacy of 2020 election

The Nov. 14 call included Oracle co-founder Larry Ellison, Fox News host Sean Hannity, Trump attorney Jay Sekulow, Sen. Lindsey O. Graham (R-S.C.) and an attorney for a Texas-based nonprofit that filed lawsuits to get poll lists to try to prove that enough illegal votes were cast in the 2020 election to justify blocking certification in some states, Isaac Stanley-Becker and Shawn Boburg report. It’s not clear whether Ellison joined subsequent calls.

The lawsuits by the nonprofit, True the Vote, didn’t get traction in court and the group withdrew the complaints on Nov. 16, said James Bopp Jr., the group’s attorney.

The revelation that Ellison joined the call is “the first known example of a technology industry titan joining powerful figures in conservative politics, media and law to strategize about Trump’s post-loss options and confer with an activist group that had already filed four lawsuits seeking to uncover evidence of illegal voting,” Isaac and Shawn write. Oracle representatives didn’t respond to requests for comment. 

Ukraine’s once-thriving tech community is trying to rebound

Many Ukrainian technology workers spend their off-hours contributing to the war effort, while others are trying to resume normalcy by reviving the country’s tech sector, Pranshu Verma reports. But amid the efforts to rebuild, tech workers still have to stay safe and adapt to changing conditions amid the war.

“As the war continues, tech founders and their employees have settled into new routines, working amid bombs, gunshots and air raid sirens,” Pranshu writes. “They build PowerPoints, take meetings and write emails and pitch decks from apartment hallways, bedroom closets and underground bunkers, trying to meet work deadlines regardless of the circumstances,” he writes.

U.K. privacy regulator fines Clearview AI, orders it to remove data on U.K. residents

The Information Commissioner's Office fined Clearview $9.5 million and told the facial recognition company to stop obtaining and using U.K. residents' personal data, BBC News's Shiona McCallum reports. It makes the United Kingdom the fourth country in the world to take enforcement action on Clearview. 

“Given the high number of U.K. Internet and social media users, Clearview AI Inc’s database is likely to include a substantial amount of data from U.K. residents, which has been gathered without their knowledge,” the ICO said. “Although Clearview AI Inc no longer offers its services to U.K. organizations, the company has customers in other countries, so the company is still using personal data of U.K. residents,” it said.

In November, the ICO said that Clearview was facing a fine of around $21.3 million. It's not clear why the fine was reduced, TechCrunch's Natasha Lomas reported. The ICO didn't respond to TechCrunch's request for comment on the reduction.

Clearview AI didn't respond to a request for comment from BBC News. 

Rant and rave

Our colleagues' report on Ellison's participation in a Nov. 14 call about questioning the legitimacy of the 2020 election led some to discuss tech billionaires on the right. Comedian and writer Mike Drucker:

The Verge's Parker Ortolani:

Inside the industry

Facebook-owner Meta to share more political ad targeting data (Reuters)

New York pension fund urges votes against Twitter and Meta directors over shootings (Reuters)

Tinder-owner Match says Google to allow alternate payment systems for now (Reuters)

Russian government procured powerful botnet to shift social media trending topics (The Record)

YouTube removes more than 9,000 channels relating to Ukraine war (The Guardian)

Workforce report

Elon Musk’s planned Twitter takeover creates a ‘chaos tax’ for employees (The Wall Street Journal)

Privacy monitor

Facial recognition firm with ICE contract had dozens of peoples' data exposed in breach (Business Insider)

Mentions

  • The German Marshall Fund's Digital Innovation and Democracy Initiative is launching a new task force to “promote trusted sharing of data.” The task force will be co-chaired by the initiative's director, Karen Kornbluh, and Julie Brill, the chief privacy officer at Microsoft, which is supporting the task force.

Trending

Apple shipped us a 79-pound iPhone repair kit to fix a 1.1-ounce battery (The Verge)

Is Amazon Prime worth it for you? (Heather Kelly and Rachel Lerman)

Daybook

  • A House Energy and Commerce Committee panel holds a hearing on telecommunications legislation Tuesday at 11 a.m.
  • Undersecretary of Commerce for Industry and Security Alan Estevez speaks at an event hosted by the Atlantic Council and Krach Institute for Tech Diplomacy at Purdue on Wednesday at 10 a.m.
  • A House Oversight and Reform Committee panel holds a hearing on the Technology Modernization Fund on Wednesday at 10 a.m.
  • FCC Commissioner Nathan Simington discusses net neutrality at an R Street Institute event on May 26 at 3 p.m.

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