Senate Intelligence Chief Warns That Social Media Injunction Harms U.S. Security

It’s a “national security imperative” for government officials to “engage with social media platforms about foreign malign influence targeting their users,” Senate Intelligence Committee Chairman Mark Warner, D-Va., said Tuesday in a U.S. Supreme Court amicus brief (docket 23-411). His brief supports government petitioners in Murthy v. Missouri who seek to vacate the 5th Circuit U.S. Court of Appeals’ social media injunction against officials from the White House and four federal agencies.

The injunction is stayed, pending completion of a SCOTUS review (see 2310230003). If it gains effect, the injunction would bar officials from the White House, the Centers for Disease Control and Prevention, the Cybersecurity and Infrastructure Security Agency, the FBI and the surgeon general's office from coercing or significantly encouraging social media platforms to moderate their content.

Warner believes government engagement with the platforms “has successfully limited the damage of prior influence campaigns,” said the brief. Preserving effective channels for such engagement is “essential” to U.S. national security, and so he’s “keenly aware of the acute dangers” the 5th Circuit’s injunction poses, it said.

Russian influence operations have significantly escalated in recent years, “with no sign of slowing down,” said the brief. Iran, China, Cuba and Venezuela have targeted American elections “through their own influence campaigns,” it added. Warner believes “any injunction here would prevent or chill communications between government officials and the social media platforms that unwittingly host foreign threats, thus imperiling our national security.”

Social media is the “most common vector” of foreign malign influence campaigns targeting the U.S., said the brief. “The best way to combat foreign malign influence is cooperation between the public and private sectors,” it added. Threat sharing allows the government and social media companies “to combine disparate data sets and share appropriate information,” it said.

Any injunction “would prevent or limit the government’s ability to communicate with social media companies,” and would leave the U.S. “vulnerable to attack,” said the brief. Foreign malign influence campaigns have grown in number, scope and sophistication since 2016, it said. Any progress gained through improved threat sharing processes “may be entirely lost if the injunction is not lifted,” it said: “Indeed, the injunction’s chilling effect is still being felt even while stayed.”

No alternative “injunction-compliant methods” for government to communicate with social media companies “are effective,” said the brief. “Real-time private engagement between frontline government officials and social media companies is now effectively impossible, as any communication by the former must be laboriously scrutinized,” it said.

Any injunction, no matter how narrow, poses a "great security risk" to the U.S. “by restricting the ability of the government and social media companies to counter foreign malign influence together,” said the brief. Recent progress in threat sharing “will be halted if the injunction is upheld in any form.”

Moreover, affirming the injunction would hinder, if not destroy, “the most effective method of countering foreign malign influence,” said the brief. In addition, it would force intelligence officials “to resort to less effective alternatives that dramatically increase the risk of compromising highly sensitive intelligence sources and methods,” it said.

The injunction “has already diminished and will continue to deplete the government’s ability to engage with social media companies about matters of national security,” said the brief. Indeed, the lawsuit that gave rise to the injunction “has had a demonstrated chilling effect on threat sharing,” it said.

The injunction's “chilling effect ... is so great” that the FBI hasn’t shared “any threat intelligence with social media companies since it was issued on July 4,” said the brief. Even while stayed, the injunction has already reduced the intelligence community’s threat sharing capacity, it said.

The FBI is “having some interaction with social media companies," but they "have changed fundamentally in the wake of the court’s rules,” FBI Director Christopher Wray told a Senate oversight hearing Oct. 31 (see 2310310047). 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.