FAKE NEWS AND KILL-SWITCHES: THE U.S. GOVERNMENT'S FIGHT TO RESPOND TO AND PREVENT FAKE NEWS.

• Author: Toronto, William D.

1. INTRODUCTION II. FAKE NEWS III. POTENTIAL SOLUTIONS A. Global Engagement Center B. Kill Switches 1. Twentieth Century Interventions into Telecommunications 2. Intervention: New York Tunnels 2005 3. Standard Operation Procedure 303 4. Intervention: Bay Area Rapid Transit Authority 2011 5. Executive Order 13618 IV. PRIOR RESTRAINT AND EXECUTIVE AUTHORITY A. PRIOR RESTRAINT B. Executive Authority V. CONCLUSION I. INTRODUCTION

   Imagine a massive assembly, at the Mall in Washington, D.C. in which protestors travel from all over the world to demand the United States cease its alleged aggressive foreign policy, destabilizing other countries. U.S. intelligence sources have confirmed that a "fake news" organization, one believed to be an agent of a foreign unfriendly government, is planning to attend the event. The recently created Global Engagement Center (GEC) has already labeled this organization as broadcasting anti-U.S. propaganda. (1) The GEC and U.S. intelligence sources have confirmed that this fake news station is planning to deliberately falsify facts at this event to enflame negative domestic sentiments against the United States. As opposed to traditional mainstream news media, this group uses wireless Facebook live-streaming technology to report and flood social media with its false reporting. Additionally, intelligence sources indicate there is a possibility that irritated attendees may lash out and turn it into a violent protest. To prevent this, U.S. authorities contact Internet Service Providers (ISPs) in the D.C. area to order them to block all wireless Facebook traffic throughout the duration of the planned event in the vicinity of the protests.

   The problem of fake news has America's attention in light of news and events surrounding the presidential election of 2016. What can the United States do to solve this problem? Does shutting off part of the telecommunications network as done above violate the First Amendment as a prior restraint on speech? Does the U.S. government have authority to take such action for purposes of national security?

   Part II will examine the problem of fake news, and highlight that this problem is not new. Part III will discuss possible solutions to fake news using the GEC, or more directly, shutting off part or all telecommunications channels. Part IV will discuss the law relating to prior restraint and executive authority relating to matters of national security. Some discussion will also touch on the argument by some on the proposition that access to the Internet is a fundamental right.

2. Fake News

   "Don't believe everything you read on the Internet" - Abraham Lincoln (2)

   Well before the 2016 presidential election, on March 16, 2016, U.S. Senator Rob Portman introduced the "Countering Information Warfare Act." (3) It called the for the creation of a "Center for Information Analysis and Response" (CIAR) whose purpose would be to analyze foreign propaganda and information warfare, expose it, and counter it by advancing "fact-based narratives that support United States allies and interests." (4) This was introduced to respond to the threat of foreign governments using propaganda and disinformation tools to undermine U.S. national security objectives. (5) On May 10, 2016, it was introduced as the Countering Foreign Propaganda and Disinformation Act in the United States House of Representatives, co-sponsored by Republican Congressman Adam Kinzinger. (6) The bill was then introduced on July 14, 2016 as the Countering Foreign Propaganda and Disinformation Act in the United States Senate sponsored again by Senator Rob Portman. (7) It passed through the House and the Senate, was added to the National Defense Authorization Act (NDAA) of 2017, and signed into law on December 23, 2016. (8) The only significant change from when the bill was first introduced was the name of the organization it created--from the CIAR to the Global Engagement Center (GEC). One of its stated purposes is to "support the development and dissemination of fact-based narratives and analysis to counter propaganda and disinformation directed at the United States and United States allies and partner nations." (9)

   In a December 23, 2016 press release, Senator Rob Portman stated:

   Our enemies are using foreign propaganda and disinformation against us and our allies, and so far the U.S. government has been asleep at the wheel. But today, the United States has taken a critical step towards confronting the extensive, and destabilizing, foreign propaganda and disinformation operations being waged against us by our enemies overseas. With this bill now law, we are finally signaling that enough is enough.... The use of propaganda to undermine democracy has hit a new low. But now we are finally in a position to confront this threat head on and get out the truth. (10) The tone of the general reaction to the idea that a non-friendly foreign nation is conducting propaganda and disinformation operations against the U.S. is that this is something novel, and the U.S. must do something about it. However, history has shown that the U.S Government itself has been willing, able, and well-practiced at using just such methods and more to secure its own interests--even going so far as to sponsor regime change in foreign nations.

   On August 19, 1953, the democratically elected prime minister of Iran, Mohammed Mossadegh, was overthrown in a coup orchestrated and executed by U.S. and British forces. (11) A declassified CIA document explaining the genesis of operation TPAJAX, specified that "the military coup that overthrew Mosadeq [sic] ... was carried out under CIA direction as an act of U.S. foreign policy, conceived and approved at the highest levels of government." (12)

   In another document, titled "The Battle for Iran," a table of contents describes "Appendix C. The Legend: The Iranian Operation in the Press." (13) A part of the overall operation was specifically directed propaganda and disinformation in the Iranian press. At the time, U.S. and British governments feared the growing Cold War threat of the Soviets swooping in to take control in Iran, giving them not only greater oil resources but also port access to the Persian Gulf. (14) These fears, combined with the desire to protect national interests, instigated not merely a propaganda campaign to affect an election, but rather an entire regime change to protect oil interests and prevent the spread of Russian power.

   In 1979, the Somoza government in Nicaragua was ousted by the Sandinistas. (15) Events intensified until 1981 when the United States began to take active involvement in the region, primarily because of Nicaragua's support for guerrillas in El Salvador. (16) While U.S. action involved diplomatic tools such as sanctions and the suspension of U.S. aid, it also included U.S. support of the Contras, a guerilla force opposed to the Sandinista government. This support ultimately generated Nicaragua's filing of a claim against the United States for engaging in "military and paramilitary activities in and against Nicaragua" at the International Court of Justice (ICJ). (17) In essence, Nicaragua claimed that the United States violated international law regarding the prohibition against the use of force and the principle for non-intervention by supporting the paramilitary activities of the Contras. (18) So in the realm of propaganda and meddling with foreign countries, the U.S. is an experienced player.

   However, foreign state-sponsored propaganda is not all we have to be concerned about in the world of disinformation. We also need to think about bored, yet creative, teenagers. The town of Veles, Macedonia, became the epicenter of the discussion surrounding the issue of "fake news" during the final weeks of the 2016 presidential election. (19) Over 100 pro-Trump websites, many containing sensationally falsified stories were registered in this small city of 55,000 inhabitants. (20) The incentive wasn't political change or any kind of ideology, but rather the capability for a group of young men to make large sums of money from automated advertising engines like Google's AdSense. (21) The more viral they could make the article they posted, mostly written else where, the more money they would bring in. (22) This was particularly attractive to a group of youth without a clear future, living in a once-thriving industrial city now full of shuttered factories and shuttered opportunities. (23) One young man earned $16,000 between August and September of 2016; the average salary in Macedonia is $371 per month. (24)

   This is only a recent display of the kind of incentives at play in advertising and the media. Mirko Ceselkoski is a special kind of coach, paid to train others in how to "prepare, populate, and promote their websites." (25) He says that for five to six hours of work per day, one can earn up to $ 1,000 per month. (26) Some of the group in Veles took his course, but Ceselkoski says, "I never instructed my students to write fake stories." (27) After the election, Google retracted its service from this group, many of whom called Ceselkoski to complain they weren't getting paid. (28) The very infrastructure of the modern Internet, built and funded by advertising revenue, creates incentives to spread fake news as much as possible, not by focused efforts of a foreign nation with an agenda, but by offering the chance at easy money.

   In summary, not only must the U.S. be concerned with hostile foreign propaganda and disinformation, but it also must address the concerns raised by the account of Veles, Macedonia, where a group of young men propagated volumes of fake and salacious news without any motivation other than money. Policy and industry practices will need to adjust and address this additional vector of fake news flooding the U.S. news space.

3. POTENTIAL SOLUTIONS

   1. Global Engagement Center

      One of the stated purposes of the Global Engagement Center (GEC) is to "support...