Disinformation About the Real Source of the Problem

Right-wing resistance is getting some credit for derailing, at least for now, the Biden DHS’ controversial Disinformation Governance Board (DGB). Whether or not this is true, it distracts from some of the problems with the idea, which are as much about systemic issues with the federal government as an Orwellian power grab.

Social networking companies have been the target of many bills in Congress and the states, so it is unsurprising that lawmakers have taken a keen interest in the new Department of Homeland Security effort to police online disinformation. DHS Secretary Alejandro Mayorkas’ announcement sparked a flurry of articles and outrage. The board’s name and KGB-like acronym didn’t help, either.

Then, Secretary Mayorkas appeared before two Senate committees, where he was peppered with questions. Rather than clearing up confusion, the hearings resurrected an issue Congress all too often ignores: the stealth regulation that occurs when executive agencies take action or spend money beyond what Congress empowers them to do, leading to all kinds of constitutional, financial, and practical questions.

Mayorkas noted that DGB isn’t an elected or appointed board with the capacity to take action. It’s merely an agency working group to study disinformation and prescribe inner-agency best practice. The problem, though, is the broad power Congress delegated to DHS in the first place, leaving us with an agency that assumes it has the authority for these types of shenanigans.

As with so many other agencies and programs rushed into existence, Congress delegated its power and responsibility with open-ended requirements to protect “public safety” or “national security,” without explaining what they really mean. Agencies regularly take advantage of such broad authority later on. Lawmakers decry their actions, but do little more than whining loudly in front of cameras at hearings. Congress is rarely willing to reclaim its proper constitutional position as the primary lawmaker in the land.

Presidential administrations have a hand in exacerbating these problems, too. Agency task forces or working groups are often created via executive order or presidential memorandum and appear in the Federal Register with a list of members, objectives, and expectations. Since taking office, President Biden has created at least six task forces and nine working groups.

The DGB was created at the behest of the secretary, not President Biden, which explains why its announcement came as such a surprise and with very few details. Senator Bill Hagerty (R-Tenn.), in a letter to Mayorkas, was quick to invoke the power of the purse to point out that agencies don’t necessarily have the authority to convene their own working groups without direction from Congress or the President. The DGB hired at least one known employee, Nina Jankowicz, specifically for the working group, so there is some confirmation that agency funds were spent.

The FY2022 omnibus bill, which allocated money to agencies and directed funds towards certain initiatives and departments, did not approve the funding of such a board. In fact, it defunded and prevented DHS from “[allocating] or reallocating functions among the officers of the Department of Homeland Security or to establish, consolidate, or alter organizational units within the Department of Homeland Security.” It’s now unclear if the creation of the working group was indeed a violation of the Antideficiency Act, which prohibits spending “unless authorized by law.”

Many agencies have working groups in violation of this law, according to U.S. Government Accountability Office reports from 2016-2021. The terms “working group” and “task force” have not been identified in the past five years as appropriate or lawful uses of agency funds. DHS published a fact sheet but failed to identify their statute authority, intended scope or what the end product, such as a report, from their working group will be.

Perhaps these shenanigans and the resulting backlash against the DGB will finally get Congress interested in reining in the power of at least one agency. Sen. Tom Cotton (R-Ark.) and Rep. Lauren Boebert (R-Colo.) have introduced separate bills to defund it.

There are other reasons why the DGB has received so much more attention than other agency working groups usually get. For example, it was announced the same week that Elon Musk moved to purchase Twitter and voiced ideas on free speech and information regulation. Jankowicz, a proposed DGB member, has previously published several controversial tweets about the Hunter Biden laptop story that piqued the interest of many right-of-center media outlets.

More broadly, nobody seems sure of exactly what the DGB will do and how it will do it. To identify something as “disinformation” means that the identifier has confirmed the truth or facts of a situation. An anti-disinformation campaign led by DHS would be highly valuable in combating coyote border runners in Latin America that misrepresent U.S. immigration policy in order to entice desperate immigrants to undertake a dangerous, illegal journey to cross the southern border. Immigration was identified by DHS as a main topic for the working group, but so was “Russia” and all “disinformation” in general. How are they defining the parameters of such disinformation? This open-ended approach to policing speech has many critics worried.

Does this mean that DHS will be making terms of service recommendations for Twitter? Launching campaigns in Europe to clarify U.S. policy with Russia and Ukraine? Even after the informational hearings, it’s still not clear what data they will be collecting or even what “disinformation” means.

There isn’t a rich history of the government being able to address disinformation in America. Even if DHS were to attempt to regulate speech or information through some type of actual agency, it would likely run into immediate constitutional challenges for suppressing free speech.

In our era of rapid technological change, agencies have been leveraging soft law tools to address problems as they arise. While soft law has advantages in certain instances, it can have serious downsides in others. In this case, identifying disinformation outside of national security concerns, not defining what “disinformation” actually is or what its parameters are, or broadening what it means to be a “national security” concern could have unanticipated consequences. This is especially true if that agency were to apply behind-the-scenes pressure to media companies to flag particular content.

Importantly, there are many existing ways to address disinformation, including consumer protection statutes and liability lawsuits. The Federal Trade Commission possesses broad consumer protection powers under Section 5 of the Federal Trade Commission Act to police “unfair or deceptive acts or practices,” within the limits of commercial fraud. But other agencies also address misleading claims. The Surgeon General in 2019 released a report on practical, noninvasive steps governors could take in their states on health information, and the Food and Drug Administration has clarified terms like “organic” and “natural.”

Obviously, DHS is in the business of “protecting the homeland,” as the secretary has repeated many times, and certain types of disinformation may fall under such authority. But DHS needs to take a step back and more explicitly define its ambitions to a more reasonable scope of information oversight that is in line with its mission. Better yet, Congress should grab the reins of its proper constitutional authority as the primary lawmaker and do it themselves.

Adam Thierer is a senior research fellow and Patricia Patnode is a program manager at the Mercatus Center at George Mason University.