FBI, DHS Chiefs Deny Social Media Content Moderation Influencing

The Biden administration never tried to influence social media content moderation, but the FBI and Department of Homeland Security have stopped meeting with tech companies due to the ongoing litigation, FBI Director Christopher Wray and Homeland Security Secretary Alejandro Mayorkas told a Senate panel Tuesday.

The Republican attorneys general of Missouri and Louisiana sued the Biden administration in 2022, claiming officials colluded with and coerced Big Tech to influence content moderation related to COVID-19 and the 2020 election. U.S. District Judge Terry Doughty granted the states’ request for a preliminary injunction against federal defendants in Missouri v. Biden in U.S. District Court for Western Louisiana in Monroe (see 2307050042). Doughty found the administration likely overstepped the First Amendment, subjecting officials at the FBI, the White House, the Office of the Surgeon General, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency to the injunction.

Doughty's original July 4 injunction enjoined most of the defendants from 10 forms of interactions with social media companies, though the 5th U.S. Circuit Court of Appeals later modified the injunction's wording and scope, while leaving it intact. The U.S. Supreme Court granted the government's cert petition to review the injunction, while also granting the government's request for a full stay of the injunction, pending the court's completion of that review (see 2310230003).

The FBI is “having some interaction with social media companies, but all of those interactions have changed fundamentally in the wake of the court’s rules,” Wray said Tuesday's oversight hearing.

That's an acknowledgment that the previous activity might not have been legal, said Senate Homeland Security Committee ranking member Rand Paul, R-Ky. That means discussions could have involved constitutionally protected speech, said Paul. Wray denied the claim.

Paul asked why the FBI changed its behavior. The changes were made out of “an abundance of caution, in order to make sure we don’t run afoul of any court ruling,” said Wray. FBI officials have never tried to influence any decisions over constitutionally protected speech, said Wray. He noted the FBI was the first and, “for a long time,” the only intelligence agency to suggest COVID-19 “most likely” originated from a lab leak. Paul said several documents in Missouri v. Biden show that FBI officials discussed constitutionally protected speech about vaccine and mask efficacy with the companies.

Mayorkas told Paul his department is no longer participating in meetings with social media companies but said DHS never instructed anyone to "take down content." DHS and other agencies met with companies in a “public-private partnership to speak of the threats to the homeland so those companies are alert to them,” said Mayorkas. DHS officials aren't covered in the 5th Circuit's Oct. 3 injunction.

Paul pressed Wray about internal Twitter documents allegedly showing the FBI reimbursed Twitter about $3.5 million for the company's processing of law enforcement requests related to the 2020 election. Paul asked Wray if the FBI paid Twitter to “moderate content.”

Any such payments would be made in accordance with the law, responded Wray: “I’m not aware of that specific payment," he said. "But I can tell you that when it comes to payments," he said, "going back well over four decades, when we are required by federal law, when a company” processes investigatory information, the agency is “required to reimburse them for those expenses. A lot of the questions around payments revolve around exactly that.” Wray denied that any of the conversations with Twitter involved moderation decisions for constitutionally protected speech: “To my knowledge, our agents conducted themselves in compliance with the law throughout.” Mayorkas said DHS did the same.