Can the Government Collaborate With Big Tech to Protect Elections?

Can the Government Collaborate With Big Tech to Protect Elections?


SCOTUS hears a case questioning the validity of that collaboration today.

Flags fly at half-staff on the front plaza of the U.S. Supreme Court Building before the funeral service for retired Supreme Court Justice Sandra Day O'Connor on December 18, 2023 in Washington, D.C.

Anna Moneymaker/Getty Images

The Supreme Court will hear oral arguments in Murthy v. Missouri today, a case that raises important questions about the line between government coercion and persuasion in its communications with Big Tech companies. The lawsuit was filed by the attorneys general of Missouri and Louisiana, representing physicians and media members who objected to officials in the Biden administration who sought to restrict misinformation about COVID-19 vaccines and the 2020 election. While the case has sweeping implications for free speech, Big Tech, and government regulation, an amicus brief filed in the case by the Brennan Center attempts to draw the court’s attention to the needs of election workers, who must have access to truthful information about threats to free and fair elections. Gowri Ramachandran serves as deputy director in the Brennan Center’s democracy program, and her work focuses on election security, election administration, and combating election disinformation.

She spoke to Dahlia Lithwick on the Amicus podcast about the unique dangers elections officials face if they cannot coordinate with tech companies about real-time election threats. Their conversation has been edited and condensed for clarity.

Dahlia Lithwick: The shouting about this case, to the extent that there is shouting about this case, has mostly been in the vein of, hey, get the deep state out of my social media, and folks accusing the Biden administration of censorship. But the focus of your specific brief in this case is actually pretty different. Can you give us the 40,000-feet take on why the court needs to, in their thinking about this case, also take in the interests and the impacts of a potential ruling on election workers?

Gowri Ramachandran: Sure. We filed an amicus brief in this case on behalf of a bipartisan group of state and local election officials precisely because I think the shouting, as you say, has really focused on issues like COVID-19 and discussions of vaccine safety online, but the potential implications of this case for election officials and their staffs—election workers who work really hard and get up really early in the morning on Election Day to serve all of us—the implications for them are really strong, and we wanted to make sure that the court is aware of that as they’re crafting their decision in this case. One of the reasons it’s so important is that disinformation about elections and election processes online is one of the components in the abuse and harassment and threats that election workers have been receiving.

At the Brennan Center, we do an annual survey of local election officials, and every year since we started the survey in 2021, people have mentioned that this false information, including online information, about the work that they do, is one of the driving factors, in their view, of threats to election officials.

They tend to pop up in the news, you know, on Election Day. We all know about the armed, masked vigilantes in tactical gear that were hanging out outside a ballot drop box in Maricopa County in 2022. We probably think of Ruby Freeman and Shaye Moss, who now stand for the unremarkable proposition that to be a person working elections carries a nontrivial risk of doxing and death threats and the menace of people coming to your home.

Another thing that we have found in our annual survey of local election officials—so these are the nearly 10,000 clerks, registrars, recorders all over the country who administer elections— we’ve found there’s been a pretty high level of turnover in that group since the 2020 election. We found that putting together the folks who were planning to leave by this presidential election cycle and the folks who were new to the job and had joined since 2020, putting all that together, we found that for about 1 in 5 local election officials, this cycle will be administering their first presidential election.

Let’s talk about Murthy, because I think it’s largely been framed as a case about what’s called jawboning, right? This is the Biden administration, in sometimes heavy-handed ways, telling social media platforms to remove content that’s not true about COVID or to take down things that are false and inflammatory, but it intersects absolutely with the interest of election workers why?

Even though false information about COVID and vaccines is really the focus of a lot of the plaintiff’s arguments in this case and the lower court orders, in this case, a huge number of defendants were actually sued—many agencies, all across the federal government. And included in that list was CISA, which is the Cybersecurity and Infrastructure Security Agency. So this is an agency that was formed in the wake of the 2016 election, in fact, and whose job it is to assist state, local, and tribal officials with cybersecurity response and really just protecting election infrastructure against interference. It has a big impact on election workers that CISA was one of the defendants in this case because the original court order where the plaintiffs won actually swept in groups like CISA and enjoined them from talking to the social media companies with the purpose of engaging in some content moderation under their own policies. It wasn’t restricted to just vaccine information. So what happened is that even though that court order has been stayed because the Supreme Court took up the case, it has really chilled government officials from sharing information with and being in touch with social media companies. So that means all the work these agencies were doing in the run-up to the 2020 election is not happening, and certainly not at the scale it was happening before. So that means not notifying the social media companies when they become aware of a user on their platforms that appears to be an agent of a foreign government and is spreading propaganda on the platform.

Sen. Mark Warner, in his role on the Intelligence Committee, actually mentioned earlier this week that since July, when that original district court order came down, until about two weeks ago, there has been zero communication between federal agencies that have this election expertise and security expertise, zero communication between those agencies and social media companies, which is a real problem. He noted rightly that the CEO of Meta, Mark Zuckerberg, even said after the 2016 election that if there are foreign agents on our platforms spreading misinformation, tell us because we want to do something about it. And to credit the government, they formed a relationship with the social media companies and provided them this information. And then that communication stopped after this district court order, and it doesn’t seem that it really restarted immediately after the order was stayed. So, it does have a really big impact. We’re actually getting less cooperation than we did in the run-up to the 2020 election.

And it’s not as if attempts at election interference have stopped. It’s not as though there’s no foreign entities trying to influence elections or putting election misinformation out there. It stopped not because it’s not needed, but because of vast confusion about what can be shared now. And so the larger point is the social media entities want to do this. They don’t feel like they’re being coerced. They feel like this is an essential piece of cooperation that has to happen.

Yeah, absolutely. It’s not because the problem has gone away, that this communication has ground to an almost halt. So every threat assessment or intelligence assessment that has been publicly released since 2020 has indicated that the threat of attempted foreign interference in elections, including through sort of propaganda or disinformation or influence operations on social media platforms, is still there, and specific countries are often named in those federal intelligence assessments. And it makes sense, right? Because what we saw on Jan. 6, 2021, was really evidence that it’s not that expensive to engage in an influence operation. Using various channels within the United States, including social media platforms, can actually cause major disruption. That was a huge disruption on Jan. 6. It was an attempted interference with the peaceful transfer of power. When Congress was under assault that day, they were actually serving in their function as election officials. So they were really being attacked because they were fulfilling that role of fairly counting all the votes and declaring the winner and fulfilling the will of the people. I think that showed the whole world that you don’t need to hire a really sophisticated, you know, computer hacker to get into our voting machines. You can cause a lot of disruption through these influence operations. So by no means has that threat abated. If anything, there’s all kinds of motivations for people to engage in that again, and unfortunately, as we also have seen in the wake of the 2020 election, there are a lot of elements within the United States, domestic elements, who are motivated to and have been engaging in the spread of false election information.

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