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Computers and Law: Journal for the Australian and New Zealand Societies for Computers and the Law |
Ravi Nayyar
21 November 2020
In the build-up to the 2016 NRL Grand Final, legendary sports commentator, Roy Slaven, described rugby league as a “grand, wonderful old game that provides us with so much entertainment and mystery”.[1]
I believe those words can be applied to an American Presidential election. Here are my takeaways from the 2020 edition thereof, with a focus on the tackling of cyber risk by the US Government, content moderation by social media platforms and active measures by pro-Trump actors.
No matter which candidate had won, the election can be said to have belonged to the US Government agencies who were incredibly proactive in their efforts to secure the electoral process and infrastructure, and combat threats thereto. Strong performers were arguably United States Cyber Command and the Cybersecurity and Infrastructure Security Agency (CISA), in partnership with other government entities like the National Security Agency and Federal Bureau of Investigation (FBI), as well as the private sector.[2] It is arguable that the US Government has learned much since the experience of the 2016 election and applied those lessons to protect the 2020 election. The fruits thereof can be said to be evident in the reported absence of major interference via cyberspace with election systems by the time when polls closed.[3]
The government’s proactivity is arguably reflective of the increasing assertiveness of the United States in the 5th domain of warfare during the Trump Administration more generally, as demonstrated by the: indictment of foreign (state-backed) hackers;[4] successful attack of the Russian state-backed troll farm, the Internet Research Agency, during the 2018 midterm elections;[5] conduct of offensive cyber operations against the TrickBot botnet[6] and (in partnership with countries including Australia) ISIS;[7] and compromise of malicious Russian cyber actors’ tactics, techniques and procedures by publishing their malware on threat repository, VirusTotal.[8] The joint announcement in the lead-up to Election Day by the Directors of National Intelligence, the FBI and CISA, about Iran allegedly sending a series of intimidating emails – purporting to come from the violent extremist organisation, Proud Boys – to Democratic voters[9] underscored this willingness to call out and move against malicious (state-backed) cyber activity targeting US interests.
One should note, however, that the above has arguably been marred by President Trump’s sacking of CISA Director, Christopher Krebs, after he and his agency repeatedly called out claims of electoral fraud, including those by the President, as groundless.[10] Krebs was respected by lawmakers on both sides of the aisle as well as members of the cybersecurity profession during his tenure, making his firing all the more unfortunate for the future of US Government cybersecurity and cybersecurity policy. It was arguably unsurprising that even rumours of the termination of Krebs’ appointment, let alone the event itself, attracted heavy criticism of the President and sympathy for the former Director from members of the private sector and government cybersecurity bodies, and parliamentarians.[11]
To continue the theme of 'lessons learned from 2016', this election was as much about the social media platforms that dominate the US information environment as the candidates themselves. These platforms represent, substantively, the main gatekeepers for that information environment. The election can be regarded as a test of platforms’ content moderation policy settings and enforcement. Their performance ranged from swift proactivity (such as Twitter)[12] to an apparent paucity of dedicated policies and resources related to the labelling and/or takedown of election-related disinformation until quite late, if at all (such as YouTube).[13]
YouTube’s recalcitrance relative to its competitors in this area is arguably quite serious. The fact that it is the most widely used social media platform in the United States means that its content moderation policies and enforcement thereof can exert a great deal of influence on the US information environment. YouTube’s relative opacity when it comes to public relations and governance exacerbates these issues by complicating attempts to scrutinise its decision-making regarding disinformation.[14] To add to such concerns, it was found that YouTube profited from a livestream of a recent press conference held by President Trump’s personal lawyer, Rudy Giuliani – at which he spread several election-related conspiracy theories – by allowing viewers of the livestream to pay a fee (30% of which goes to YouTube) to pin their comments to the top of the comment box.[15] These sorts of issues have raised questions about why YouTube’s CEO, Susan Wojicki, has not been summoned to testify before the US Congress, unlike her counterparts at Twitter and Facebook who have appeared multiple times.[16]
Nonetheless, it is still early to rate comprehensively the performance of social media platforms as a whole in the election content moderation context and predict how companies will modify their moderation guidelines, if they do.[17] The recent appearance of Facebook and Twitter’s CEOs before the US Senate Judiciary Committee was reported to suggest that change to their platforms' policies was not likely in the short-term.[18] That said, Twitter had already confirmed that the President’s Trump's personal account will lose its privileged status for moderation purposes on 20 January 2021 when he is no longer the President. His account will be regulated by the platform just like that of any ordinary user and would no longer enjoy ‘public interest’ protections.[19]
It will be interesting to see whether, and, if so, how, the present seemingly self-regulatory model for content moderation will evolve, or whether a Biden Administration will threaten dilution or outright removal of protections under section 230 of the Communications Decency Act[20] if social media platforms do not work harder to tackle misinformation and disinformation. The platforms would be aware of the President-Elect himself signalling his support for the immediate repeal of the stated statutory provision.[21] Alongside these factors, one should keep track of how Mark Zuckerberg will deal with a centre left-leaning White House, given his company's courtship of the conservative side of politics for years now.[22]
The hostility of a Biden White House to Silicon Valley, however, could be tempered by how the latter is well-represented in, or has otherwise close ties with, the Biden-Harris transition team. Such tempering may be informed by sizeable political donations from members of the US technology sector to pro-Biden causes. These factors can influence the future Biden Administration’s policies in favour of Silicon Valley and (perhaps more importantly) drive favourable appointments at federal regulators that are the primary overseers of the sector, including the Federal Communications Commission and Federal Trade Commission, and the head of the US Department of Justice’s antitrust division.[23]
The fact that the result was not a complete landslide for President-Elect Biden can be argued to reflect the effectiveness of active measures designed and executed properly by the Trump team and Trump supporters against their own compatriots.[24] I agree with respected academic, Thomas Rid, on the point that ‘[President] Trump’s very impressive results in 2020, even if he loses, should put another big nail in the coffin of the theory that he owed his win in 2016 to Russian interference (or Comey’s)’.[25]
While the active measures deployed by Russian state actors had an impact on the 2016 election, that was considered far less than domestic US actors during the same election.[26] The Trump team used the same tactics to greater effect throughout the 2016 campaign and arguably since then (perhaps that was the Russian Government’s objective all along?).[27]
Of particular note is the President's facilitating the spread of the Qanon conspiracy theory, despite the FBI's having labelled it a domestic terrorism threat.[28] Roughly half of his supporters are Qanon supporters, not least since the President has failed to condemn this conspiracy theory.[29] The Trump legacy includes there being around a dozen political candidates from the Republican Party who support(ed) or fail(ed) to condemn Qanon, two of whom have now been elected to the US House of Representatives.[30]
The effect of the Trump team’s active measures in relation to Qanon is also serious in light of Qanon supporters organising around the use of information warfare tactics to shape the US political conversation in favour of President Trump. Given the inherently pro-Trump nature of Qanon, such activity can further corrode the US information environment by synergising with, and reinforcing, the outputs of active measures from the current White House against Trump’s political opponents.[31] That corrosive effect is arguably writ large in a threat to Philadelphia election officials from alleged Qanon supporters who were charged with having a concealed firearm without a license and carrying a firearm on public streets or public property.[32]
The potential impact of active measures by, and/or in support of, the Trump campaign may also be seen in voting patterns in the state of Florida, which experienced a rise in support for President Trump among Latinx voters.[33] It is clear that social media platforms were so focused on English-language disinformation risk that they appear to have not tackled Spanish-language disinformation risk to the same extent.[34] This arguably helped Spanish-language disinformation operators play to the fears of voters with South American heritage by pushing falsities about Biden being a socialist and not a real Catholic, and the Black Lives Matter movement (which Biden supports) being anarchical and anti-Latinx.[35] The Trump campaign itself adopted such tactics in Spanish-language advertisements on social media platforms and TV channels in Florida. Trump was no doubt aided by concerted anti-Biden messaging emanating from an increasing number of Spanish-language political commentators who generally peddle baseless conspiracy theories to their sizeable social media followings in Latinx communities.[36] These factors could be behind why Biden’s margin in Florida’s most populous county, Miami-Dade (with a thriving Latinx community), was less than a third of that which Hillary Clinton enjoyed in 2016.[37]
While one looks forward to further analysis on the impact of the aforementioned active measures, who their purveyors were and their impact on the overall election result, one should note the age-old caveat about active measures: by their very nature as vehicles for disinformation, their effectiveness is hard to evaluate.[38] There is always the danger about overstating the impact of active measures and playing right into the (internal and/or external) adversary's hands by thus self-exacerbating the divisions in your body politic which the adversary sought to exploit in the first place.[39]
Conclusion
This was a fascinating election to observe from multiple perspectives, be they with regard to cyber risk, content moderation by social media platforms, or indeed active measures by domestic US actors against fellow citizens. There were positive outcomes, such as the robust cybersecurity of the election, but also things meriting a great degree of concern, including the growth of disinformation campaigns targeting the American body politic from within, alongside the spread of dangerous conspiracy theories that can jeopardise public safety.
On a lighter note, if one was feverishly checking the news throughout the 2020 US Election, they would be advised to never criticise Test Cricket, or indeed any form of that great game, again.
[1] ‘Festival of the Boot: Part 2’, Festival of the Boot , ABC News Radio (2 October 2016) 0:11:32-0:11:38.
[2] David E. Sanger and Julian E. Barnes, ‘U.S. Tried a More Aggressive Cyberstrategy, and the Feared Attacks Never Came’, The New York Times (16 November 2020) <https://www.nytimes.com/2020/11/09/us/politics/cyberattacks-2020-election.html>.
[3] Kevin Collier and Ken Dilanian, ‘Polls Close on Election Day with No Apparent Cyber Interference’, NBC News (5 November 2020) <https://www.msn.com/en-ca/news/us/polls-close-on-election-day-with-no-apparent-cyber-interference/ar-BB1aFKh6?li=AAggFp4&srcref=rss>.
[4] See, eg, The United States Department of Justice, ‘Six Russian GRU Officers Charged in Connection with Worldwide Deployment of Destructive Malware and Other Disruptive Actions in Cyberspace’ (Press Release, 19 October 2020).
[5] Russell Brandom, ‘US Cyber Command Attacked Russian troll farm on Election Day 2018’, The Verge (26 February 2019) <https://www.theverge.com/2019/2/26/18241600/us-cyber-command-russian-troll-farm-attack-election-day-2018>.
[6] Shannon Vavra, ‘Cyber Command, Microsoft Take Action against TrickBot Botnet before Election Day’, CyberScoop (12 October 2020) <https://www.cyberscoop.com/trickbot-takedown-cyber-command-microsoft/>.
[7] Dina Temple-Raston, ‘How the U.S. Hacked ISIS’, NPR (26 September 2019) <https://www.npr.org/2019/09/26/763545811/how-the-u-s-hacked-isis>; Stephanie Borys, ‘Australian Cyber Soldiers Hacked Islamic State and Crippled Its propaganda Unit – Here's What We Know’, ABC News (18 December 2019) <https://www.abc.net.au/news/2019-12-18/inside-the-secret-hack-on-islamic-state-propaganda-network/11809426>.
[8] See eg Catalin Cimpanu, ‘US Cyber Command Exposes New Russian Malware’, ZDNet (1 November 2020) <https://www.zdnet.com/article/us-cyber-command-exposes-new-russian-malware/>.
[9] Catalin Cimpanu, ‘US Blames Iran for Spoofed Proud Boys Emails Threatening Democrat Voters’, ZDNet (22 October 2020) <https://www.zdnet.com/article/us-blames-iran-for-spoofed-proud-boys-emails-threatening-democrat-voters/>.
[10] Kaitlan Collins and Paul LeBlanc, ‘Trump Fires Director of Homeland Security Agency who Had Rejected President's Election Conspiracy Theories’, CNN (18 November 2020) [13]-[14] <https://edition.cnn.com/2020/11/17/politics/chris-krebs-fired-by-trump/index.html>; Christopher Bing, Joseph Menn and Raphael Satter, ‘Exclusive: Top Official on U.S. Election Cybersecurity Tells Associates He Expects to Be Fired’, Reuters (13 November 2020) [5]-[6], [8] <https://www.reuters.com/article/us-usa-cyber-officials-exclusive/exclusive-senior-u-s-cybersecurity-official-tells-associates-he-expects-to-be-fired-idUSKBN27S2YI?il=0>
[11] Bing (n 10); Catalin Cimpanu, ‘Trump Fires CISA Director Chris Krebs’, ZDNet (18 November 2020) [7]-[8] <https://www.zdnet.com/article/trump-fires-cisa-director-chris-krebs/>; Sean Lyngaas, ‘Lawmakers Back CISA Chief Krebs after Report that He Expects to Be Fired’, CyberScoop (12 November 2020) [1] <https://www.cyberscoop.com/chris-krebs-future-white-house-cisa-congress/>; Collins and LeBlanc (n 10) [16], [18], [27]; Allison Pecorin and Lauren Lantry, ‘GOP Senators Blast Trump's Firing of Election Security Official’, ABC News (19 November 2020) <https://abcnews.go.com/Politics/gop-senators-blast-trumps-firing-election-security-official/story?id=74278635>.
[12] See eg Tucker Higgins, ‘Twitter Slaps Warning Labels on Trump Tweets that Suggest Voting Twice’, CNBC (3 September 2020) <https://www.cnbc.com/2020/09/03/twitter-slaps-warning-labels-on-trump-tweets-that-suggest-voting-twice.html>.
[13] Julia Alexander, ‘YouTube’s Lax Misinformation Rules Are Letting Election Lies Spread’, The Verge (5 November 2020) <https://www.theverge.com/2020/11/5/21551790/youtube-election-misinformation-oann-live-stream-mail-in-vote-count-ballot>.
[14] Evelyn Douek, ‘Why Isn't Susan Wojcicki Getting Grilled by Congress?’, WIRED (17 November 2020) [2] <https://www.wired.com/story/why-isnt-susan-wojcicki-getting-grilled-by-congress/>, citing Andrew Perrin and Monica Anderson, ‘Share of U.S. Adults Using Social Media, Including Facebook, Is Mostly Unchanged since 2018’, Pew Research Center (10 April 2019) <https://www.pewresearch.org/fact-tank/2019/04/10/share-of-u-s-adults-using-social-media-including-facebook-is-mostly-unchanged-since-2018/>; Douek (n 13) [3].
[15] Jason Koebler, ‘YouTube Is Cashing In on Trump's Election Conspiracy During Giuliani Livestream’, Motherboard (20 November 2020) [1]-[2], [4] <https://www.vice.com/en/article/dy87gy/youtube-is-cashing-in-on-trumps-election-conspiracy-during-giuliani-livestream>.
[16] Evelyn Douek, ‘Why Isn't Susan Wojcicki Getting Grilled by Congress?’, WIRED (17 November 2020) <https://www.wired.com/story/why-isnt-susan-wojcicki-getting-grilled-by-congress/>.
[17] Issie Lapowsky, ‘Don’t Declare Premature Victory on Big Tech’s Election Work Just Yet’, Protocol (6 November 2020) <https://www.protocol.com/dont-declare-premature-victory-on-big-techs-election-work-just-yet>.
[18] Lauren Feiner, ‘Facebook and Twitter Defend Election Safeguards and Moderation Practices before the Senate’, CNBC (17 November 2020) [1] <https://www.cnbc.com/2020/11/17/facebook-twitter-defend-election-moderation-practices-before-senate.html>.
[19] Adi Robertson, ‘Trump Will Lose His Twitter “Public Interest” Protections in January’, The Verge (7 November 2020) <https://www.theverge.com/2020/11/7/21552606/trump-twitter-world-leader-public-interest-exception-ends-january-loss>.
[20] Communications Decency Act of 1996, 47 USC § 230(c)(1) (2018).
[21] Isobel Asher Hamilton, ‘The Georgia Runoffs Could Decide the Fate of Section 230 – along with the Future of Big Tech’, Business Insider (16 November 2020) [4] <https://www.businessinsider.com.au/what-biden-administration-means-for-section-230-2020-11?r=US&IR=T>.
[22] Dawn Chmielewski, ‘Facebook Has Been Actively Courting Conservatives, but That Won't Stop It from Getting Spanked’, Vox (11 May 2016) <https://www.vox.com/2016/5/11/11657580/facebook-conservative-bias-news-curation-gop>.
[23] Theodore Schleifer, ‘Here Are the 15 Silicon Valley Millionaires Spending the Most to Beat Donald Trump’, Recode (27 October 2020) <https://www.vox.com/recode/21529490/silicon-valley-millionaires-top-donors-2020-election-donald-trump>; Theodore Schleifer, ‘Inside the Behind-The-Scenes Fight to Convince Joe Biden about Silicon Valley’, Recode (17 November 2020) [14] <https://www.vox.com/21561878/joe-biden-transition-silicon-valley-personnel-eric-schmidt>, citing Sara Morrison, ‘How Biden’s FCC Could Fix America’s Internet’, Recode (12 November 2020) <How Biden’s FCC could fix America’s internet>; Timothy B. Lee, ‘Why Biden Tapped Several Big Tech Staffers for His Transition Team’, Ars Technica (11 November 2020) <https://arstechnica.com/tech-policy/2020/11/the-tech-sector-is-well-represented-on-bidens-transition-team/>.
[24] ‘Active measures’, also referred to as disinformation campaigns or ‘political warfare’, comprise operations to ‘actively and immediate change views, decisions, and factors on the ground, in the now [in targeted information environment(s)]’: Thomas Rid, Active Measures: The Secret History of Disinformation and Political Warfare (Macmillan, 2020) 7, 429-30. Since the start of the Cold War, active measures campaigns have been usually guided by the objective of the purveyor to ‘exacerbate existing tensions and contradictions within the... [target’s] body politic’ via (a combination of) truth and falsity: at 7.
[25] @RidT (Thomas Rid) (Twitter, 6 November 2020, 3:30am AEDT) <https://twitter.com/RidT/status/1324388565808222220?s=20>.
[26] Yochai Benkler, ‘The Danger of Overstating the Impact of Information Operations’, Lawfare (Blog Post, 23 October 2020) <https://www.lawfareblog.com/danger-overstating-impact-information-operations>.
[27] @jason_kint (Jason Kint) (Twitter, 6 November 2020, 4:39pm AEDT) <https://twitter.com/jason_kint/status/1324587100893782018?s=20>.
[28] Marianne Dodson, ‘FBI Labels Fringe Conspiracy Theories as Domestic Terrorism Threat’, The Daily Beast (1 August 2019) <https://www.thedailybeast.com/fbi-warns-against-qanon-pizzagate-in-report-highlighting-dangers-of-fringe-conspiracy-theories>.
[29] Emily Olson, ’Donald Trump's Legacy on US politics Reflected in Four New Members of Congress’, ABC News (21 November 2020) [8], [20] <https://www.abc.net.au/news/2020-11-21/meet-four-new-faces-set-to-shake-up-us-politics/12900196>; at [7], citing Graeme Bruce, ‘Half of Trump's Supporters Think Top Democrats Are Involved in Child Sex-Trafficking’, YouGov (21 October 2020) <https://today.yougov.com/topics/politics/articles-reports/2020/10/20/half-trump-supporters-believe-qanon-theory-child-s>.
[30] Olson (n 29) [16], [22]; at [12], citing Matthew Rosenberg, ‘A QAnon Supporter Is Headed to Congress’, The New York Times (3 November 2020) <https://www.nytimes.com/2020/11/03/us/politics/qanon-candidates-marjorie-taylor-greene.html>.
[31] Elise Thomas, ‘Qanon Deploys “Information Warfare” to Influence the 2020 Election’, WIRED (17 February 2020) [6]-[8] <https://www.wired.com/story/qanon-deploys-information-warfare-influence-2020-election/>.
[32] Maura Ewing et al, ‘Two Charged with Carrying Weapons near Philadelphia Vote-Counting Site amid Election Tensions’, The Washington Post (7 November 2020) <https://www.washingtonpost.com/nation/2020/11/06/philadelphia-attack-plot-vote-count-election/>.
[33] Ed Morales, ’What the 2020 Election Reveals about Latino Voters’, CNN (Opinion 16 November 2020) [1] <https://edition.cnn.com/2020/11/16/opinions/latino-hispanic-vote-trump-biden-morales/index.html>.
[34] David Gilbert, ‘Spanish-Language QAnon Accounts Spread Pro-Trump Misinformation in Florida’, VICE (6 November 2020) [6] <https://www.vice.com/en/article/jgqqxx/election-propaganda-texts-are-completely-out-of-control>.
[35] Carmen Sesin and April Glaser, ‘In Florida, Spanish-Language Misinformation Embraces Misleading Election Day Claims’, NBC News (7 November 2020) [16] <https://www.nbcnews.com/news/latino/florida-spanish-language-misinformation-embraces-misleading-election-day-claims-n1246861>; Shirin Ghaffary, ‘How Fake News Aimed at Latinos Thrives on Social Media’, Recode (19 November 2020) [4], [11], [15], [28]. [30] <https://www.vox.com/recode/21574293/social-media-latino-voters-2020-election>.
[36] Ghiffary (n 35) [16], [22]-[23].
[37] Gilbert (n 34) [11]-[12].
[38] Rid (n 24) 8-10.
[39] Benkler (n 25).
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URL: http://www.austlii.edu.au/au/journals/ANZCompuLawJl/2021/12.html