DHS stonewalls on legal basis for policing 'misinformation, disinformation, malinformation'

Group that filed FOIA requests and sued agency says nature of redactions shows it's "either overstating its authorities or it's abusing FOIA exemptions to avoid transparency."

Published: September 26, 2023 11:00pm

The Department of Homeland Security is not only hiding the purported legal basis for its authority to police misinformation, disinformation and malinformation – the latter sometimes jeered as "true but inconvenient" – but also any explanation for invoking an unexpected Freedom of Information Act exemption to hide them.

Hastily stitched together 22 years ago to prevent another Islamic terrorist attack but since turning its sights on domestic political disputes, the agency gave Just the News a lengthy defense of its work against disinformation but not an answer to how disclosure of its "MDM Space" legal authorities would imperil law enforcement work.

The purported authorities are among nearly 1,700 pages of "heavily redacted" internal DHS documents related to the short-lived Disinformation Governance Board, according to the Americans for Prosperity Foundation, which obtained the documents by filed a Freedom of Information Act request and a lawsuit last year and has posted each new batch over the past nine months.

The agency also heavily redacted over 100 pages of internal communication between Nina Jankowicz, the board's executive director before it was disbanded last year, and her staff in response to another FOIA request. It hid most of the legal justifications and talking points DHS created to defend the board from "blowback." 

That ongoing blowback, which ranges from the left-leaning ACLU to Republican lawmakers, is causing headaches for both agencies doling out misinformation grants and the academic institutions and researchers using them to study and shape messaging on elections, COVID-19, Hunter Biden and the environment among other subjects.

The National Institutes of Health asked some employees in July, after U.S. District Judge Terry Doughty's preliminary injunction against government requests to remove protected speech, "please do not respond" if they receive questions that relate "in any way to misinformation or disinformation," The Washington Post reported Saturday.

The next month, NIH said it "decided to pause" a five-year, $154.3 million grant program on health communication to "reconsider its scope and aims in the context of the current regulatory and legal landscape around communication platforms."

Court rulings, congressional subpoenas and Just the News reporting on public-private collaborations such as the Election Integrity Partnership, which is led by the Stanford Internet Observatory and University of Washington's Center for an Informed Public, are giving researchers pause on how they do their work, the Post said, citing interviews with EIP participants.

The EIP may shrink or stop sharing purported misinformation with X (formerly Twitter) and Facebook altogether, and one anonymous participant is "looking at ways to do our work completely in the open" rather than keep communicating privately with platforms.

SIO Executive Director Alex Stamos told Republicans on the GOP-led House Judiciary Committee that a 2024 study was less likely because their investigation had cost Stanford "approaching seven [figure] legal fees," according to a court transcript the Post cited.

While DHS cited the widely loathed but routine "deliberative process privilege" to redact the legal authorities for MDM work in response to the Americans for Prosperity Foundation lawsuit, it also cited FOIA Exemption 7(e). That shields records whose disclosure of "techniques and procedures" or "guidelines" for law enforcement investigations or prosecutions could tip off criminals.

AFPF investigator Kevin Schmitt blasted the omission of the authorities and the odd FOIA citation in an X thread last week, claiming they show the agency is "either overstating its authorities or it's abusing FOIA exemptions to avoid transparency."

The agency seemingly invoked the deliberate process privilege for no reason in another document, AFPF said: hiding the subjects of the Disinformation Governance Board's first meeting and expert roundtable in April 2022 and even its plans to announce the board's formation to different constituencies.

It disclosed both seven months later in response to pressure from GOP Sens. Josh Hawley, Missouri, and Chuck Grassley, Iowa.

Jankowicz said they would discuss Ukraine and "irregular migration" and notify Congress, industry and civil society as well as the broader public "prior to those events."

Deliberative process is also the stated basis for redacting an entire memo on the "Ukraine MDM Playbook," dated Feb. 12, 2022, and marked "Version 12." APFP's Schmitt said the redactions mean the public doesn't know if the board's work here covered domestic speech. 

It's unclear how DHS responded to the Homeland Security Advisory Committee's recommendation in its final report more than a year ago that the agency notify other agencies of the disinformation it finds "for appropriate action and to platforms hosting the falsehoods," APFP said.

Asked why DHS was hiding its stated legal authorities and the relevance of the law enforcement investigation FOIA exemption, a spokesperson apparently provided Just the News the same unresponsive statement DHS gave Fox News.

"The Department of Homeland Security’s core mission is spelled out in our name: to protect homeland security," a spokesperson only identified as "Ruth" wrote in an email Monday night.

"We have worked for over a decade to address disinformation that poses a threat to that security," the spokesperson said. "This critical work continues today across several DHS components, consistent with the law."

She also said the agency works "in a manner that is transparent and upholds the privacy, civil rights, and civil liberties of the American people."

While it cites Customs and Border Protection's campaign against false claims by cartels that spur illegal crossings, and the Federal Emergency Management Agency's correction of false claims about drinking water and "targeted scams" following hurricanes, the statement does not shy away from work that has troubled congressional Republicans.

"The Cybersecurity and Infrastructure Security Agency (CISA) works with stakeholders to mitigate the risk of disinformation to U.S. critical infrastructure, including throughout Russia’s invasion of Ukraine and the 2022 midterm elections," the statement reads, referring to CISA's work with private groups to mass-report purported misinformation to Big Tech.

All the agency is doing is "identif[ying] disinformation that threatens the homeland through publicly available sources, research conducted by academic and other institutions, and information shared by other federal agencies and partners," then sharing "factual information related to its mission to potentially impacted people and organizations," according to the statement.

The DHS spokeperson did not respond to a followup query again seeking the agency's proffered legal authorities over MDM and the relevance of the law enforcement investigations FOIA exemption.

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