Senator Warner spills beans on federal-social media election coordination as SCOTUS mulls legality

Biden administration expressly told SCOTUS it wasn't arguing it could coordinate social media platforms to remove purported disinformation, attorney who sues feds for constitutional violations emphasizes.

Reunited and it feels so good?

A powerful Democratic senator claims the feds are in regular communication again with social media platforms about removing purported disinformation related to the upcoming election, possibly because of encouraging signs from Supreme Court justices at oral argument in a landmark First Amendment lawsuit in March.

Remarks to reporters at this week's RSA Conference by Senate Intelligence Committee Chairman Mark Warner of Virginia, as reported by NextGov/FCW, sent the feds scrambling to downplay the scope and nature of the talks and promise further answers later this month.

The Department of Homeland Security's Cybersecurity and Infrastructure Security Agency and FBI had a presence at the security conference, including CISA Director Jen Easterly and her predecessor Chris Krebs, who is business partners with Alex Stamos, director of the Stanford Internet Observatory.

CISA under Krebs helped found the Election Integrity Partnership, whose principals include SIO and whose mission was mass-reporting purported misinformation to platforms in the runup to the 2020 and 2022 elections. GOP-led congressional committees dubbed the arrangement, which included CISA employees, "censorship laundering."

Yet agency flacks seemed caught unawares by Warner's comments about their resumption of social-media talks "roughly around the same time" justices showed "a lot of sympathy" for the government's ability to have "at least voluntary communications with" platforms.

The timing may also prompt unflattering comparisons to Brazil's censorship directives to social media platforms, the subject of two recent reports by the House Select Subcommittee on the Weaponization of the Federal Government.

Its interim staff report, released this week, cites new documents obtained since its first massive report last month, "including an April 2024 order to X [formerly Twitter] as well as nine orders to Rumble or entities owned by Rumble," the speech-friendly YouTube alternative.

The GOP majority accuses the Biden administration of "silence" in response Brazils' actions and copying Brazil by having "attacked journalists, political opponents, and Americans across the political spectrum in an attempt to silence the Administration’s many critics."

Subcommittee staff did not respond to Just the News queries on how the revelations and agencies' responses may shape its continuing oversight.

The 5th U.S. Circuit Court of Appeals narrowed the injunction by a lower court in favor of Louisiana, Missouri and private plaintiffs suing several agencies for social media censorship of topics including COVID-19 and elections, prohibiting CISA and FBI among others from "threatening, pressuring, or coercing" platforms to suppress legally protected posts. 

While SCOTUS held the injunction pending a ruling, Warner said White House lawyers shut down talks because their interpretations of the lower courts' prohibitions were "too timid."

Warner wrote on X that he fears generative artificial intelligence could "wreak [havoc] on this election cycle," pointing to his press briefing at the conference, where he didn't do agencies any favors by saying Americans were the problem in the 2024 cycle. 

The main change from 2016 is "Americans are more willing to believe a lot more conspiracy theories" and create propaganda previously led by "Russian bot operation[s]," The Wall Street Journal reported Warner saying.

Easterly and Krebs – chief intelligence and public policy officer at SentinelOne, which calls itself "the world’s most advanced AI-powered cybersecurity platform" – emphasized they weren't worried about AI attacks on election infrastructure, just spreading misinformation.

CISA declined to comment, with External Affairs Specialist Tess Hyre telling Just the News to "be on the lookout for the Election Security hearing in the coming weeks with Director Easterly."

Warner referred to the same upcoming Intelligence committee hearing at the conference. Originally scheduled for last month, the hearing was delayed by the impeachment proceeding for DHS Secretary Alejandro Mayorkas.

The FBI, which didn't respond to Just the News queries, repeatedly emphasized to The Federalist the target was foreign operations. It "recently implemented procedures to facilitate sharing information about foreign malign influence with social media companies" that makes clear they are "free to decide on their own whether and how to take action on that information." 

Neither CISA nor the FBI answered queries for further details, according to The Federalist, including when talks resumed, which platforms and other agencies were involved, and how they define "disinformation" and whether it could include "the risks of mail-in voting."

A Freedom of Information Act production to America First Legal shows that CISA internally acknowledged the risks of mail-in voting even as it hired consulting firm Deloitte to monitor and flag posts with the same warnings regarding the 2020 election.

The Federalist, The Daily Wire and Texas recently won "expedited discovery" in their First Amendment lawsuit against the State Department for funding media-blacklist groups, which allegedly diminished the conservative publishers' reach and advertising revenue, and prodding platforms to use their risk ratings in alleged violation of Texas law.

Warner's remarks were too vague to confirm whether the resumed talks cross the line set by the appeals court, and it looks like the agencies are "treading lightly," an attorney with a group suing the government for constitutional violations told Just the News.

But it's not a wise decision to base such a large decision on reading the tea leaves from March's oral argument, the attorney said, especially because the government has already conceded it's not arguing it can coordinate willing censorship by the platforms.

The attorney pointed to an exchange between Justice Department Principal Deputy Solicitor General Brian Fletcher and Justice Amy Coney Barrett from the argument transcript.

If Facebook decided "it would be most efficient and most helpful for the public good" to "voluntarily turn over our content moderation" to the feds on COVID, "wouldn't it be state action then?" Barrett asked him – the government deputizing private parties to take actions it cannot.

While Fletcher called the analysis for state action "incredibly context-specific," he said that hypothetical "starts to verge more over" into prohibited joint action because the government would be "actually making decisions ... not just advising or persuading the platforms."

Also unanswered, the attorney told Just the News, is whether the feds will again try to allegedly trick platforms into squelching content by implying it's foreign propaganda. Meta CEO Mark Zuckerberg credited a shadowy FBI warning for Facebook's decision to squelch New York Post reporting on Hunter Biden's abandoned laptop on the eve of the 2016 election.