U.S. Department of Homeland Security Appears to Work With U.S. Tech Companies to Flag Possible Misinformation ⇥ theintercept.com

Ken Klippenstein and Lee Fang, the Intercept:

The Department of Homeland Security is quietly broadening its efforts to curb speech it considers dangerous, an investigation by The Intercept has found. Years of internal DHS memos, emails, and documents — obtained via leaks and an ongoing lawsuit, as well as public documents — illustrate an expansive effort by the agency to influence tech platforms.

This mandate apparently began around 2018 during the Trump administration — representatives from which often complained about censorship by tech companies and later sued over it because irony is dead — and has expanded under the Biden administration. This story raises worrying questions about how private companies that dominate specific markets provide a workaround for U.S. Constitutional limitations, particularly by the DHS. For example, the Fourth Amendment prohibits law enforcement from conducting surveillance without a warrant, but it does not prevent agencies from buying records of virtually the same information.

Whether the First Amendment is now being subject to similar workarounds is a good question for lawyers. With very few narrow exceptions, government officials are not supposed to tell either people or companies what they are able to say and publish. But if intelligence agencies are suggesting in meetings that posts they flagged should be scrutinized at a higher level, is that meaningfully impacting users’ First Amendment rights, or is it more accurately impacting the platforms’ rights? Statements from lawyers published in this Intercept piece sound like the latter is more true.

There is a fundamental question here: even if government officials are fully accurate in their reports — a paper (PDF) cited in this story pegs its track record at about 35% — is this something they should be responsible for? I do not think the answer is a hearty yes because there are clearly problems with it, but I also do not believe it is a definite no, either. If officials are flagging posts and they are treated like any other person’s concern, I am not sure that is necessarily a problem. But they are not — for one, there is apparently tighter coordination between officials and platforms and, for another, they have a special place to file reports:

There is also a formalized process for government officials to directly flag content on Facebook or Instagram and request that it be throttled or suppressed through a special Facebook portal that requires a government or law enforcement email to use. At the time of writing, the “content request system” at facebook.com/xtakedowns/login is still live. DHS and Meta, the parent company of Facebook, did not respond to a request for comment. The FBI declined to comment.

It is utterly bananas to think now retracted reports from the Wire which alleged, in the broadest of strokes, that government officials have greater leverage when flagging posts on Meta properties were based on probably fake documentation when this very real portal exists. To be clear, it seems little of the Wire’s reporting was based on factual information, but a version of its characterization is apparently real.

Update: A more careful read of this story indicates Klippenstein and Fang misrepresented and overdramatized aspects of this story. It is a worthwhile followup read.