DOJ report: Government communications with social media companies can threaten First Amendment rights

Government officials aren’t allowed to come to your house and tell you what you can post on social media, but what about when those same officials put pressure on social media companies to tell them what you can post? That’s called “jawboning,” and it’s concerning for anyone who cares about a flourishing free speech environment on the internet. 

Many government interactions with social media companies are constitutional, but it’s vital that agencies transparently interact with those companies to ensure they don’t cross the line. To that end, in late July, the Office of the Inspector General at the U.S. Department of Justice released a report evaluating the DOJ’s information-sharing efforts around what the agency calls “foreign malign influence threats to U.S. elections.” 

To its credit, the report acknowledged that when the government shares information with social media companies, it does present risks to First Amendment rights because social media companies provide a forum for speech. The OIG made recommendations aimed at mitigating those risks while still enabling the DOJ to fulfill its mandate to protect national security by countering foreign malign influence. The DOJ substantially agreed with the recommendations and is taking steps to implement them.

The report leaves much unknown about the full landscape of the DOJ’s interaction with social media companies, but it is heartening to see broad acknowledgment of the risks to Americans’ First Amendment.  

Foreign malign influence and the parameters of the OIG report

The Federal Bureau of Investigation defines “foreign malign influence” as “subversive, covert (or undeclared), coercive, or criminal activities by foreign governments, nonstate actors, or their proxies to sow division, undermine democratic processes and institutions, or steer policy and regulatory decisions in favor of the foreign actor’s strategic objectives and to the detriment of its adversary.”

According to the OIG report, examples of foreign malign influence operations include “covert placement of media articles; economic coercion for advantage, bribery, or blackmail; cyber intrusions; campaign finance violations; and overt provision of funds to divisive groups.” 

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Given the widespread use of the internet and information systems, these operations often impact private U.S. citizens and private companies, including those that operate social media platforms. A cyber intrusion, for example, may affect a private company’s network, and during the course of an investigation, the FBI may have good reason to reach out to that private company. Similarly, investigators may reach out to social media companies when they have information about foreign malign influence activities on a social media platform. 

The OIG report specifically examines the DOJ’s information-sharing practices around foreign malign influence targeted at U.S. elections. In doing so, it evaluates how the DOJ communicates with social media companies and with other government agencies and departments. The OIG’s report does not evaluate information-sharing that pertains to other types of foreign malign influence threats or threats to elections from domestic actors. 

Of note, the report’s fieldwork started in October 2021, more than six months before the attorneys general of Missouri and Louisiana (along with several individual plaintiffs) sued executive agencies including the DOJ and the FBI, claiming the agencies unlawfully pressured social media companies to take down, block, or otherwise moderate certain content. That case, originally known as Missouri v. Biden and now known as Murthy v. Missouri, ended up at the Supreme Court, which ruled that the plaintiffs had not established standing to sue. 

The Supreme Court sidestepped the substantive issues in the case, but in other rulings last term, the Court strongly affirmed the core principle that government actors violate the First Amendment if they force censorship by coercing private companies.  

And the early rulings in the case did have a direct impact on how the FBI engages with social media companies and how they plan to do so going forward (more on that below). 

OIG finds lack of guidance could threaten First Amendment rights

The core finding of the OIG’s evaluation is that for much of the time period the FBI communicated with social media companies about foreign malign influence threats, the DOJ and the FBI both lacked guidance for that information-sharing. 

Prior to the 2016 presidential election, the FBI did not extensively communicate with or maintain relationships with social media companies. After information about Russian attempts to interfere in the 2016 election became public, the FBI said social media companies were eager to learn about what had happened and about foreign malign influence operations in general. 

The FBI saw this interest as an opportunity to build relationships with social media companies, and the agency began providing unclassified information to the companies about foreign malign influence threats “with no expectation of reciprocity.” That information included things such as “Internet Protocol (IP) addresses, social media handles, email addresses, or websites of accounts known to belong to foreign malign actors that may have violated the platforms’ terms of service.” The FBI also established quarterly meetings with some social media platforms to discuss foreign malign influence operations. 

However, from 2018-2023, this coordination and communication was not guided by explicit policies, setting the stage for blurred lines between government information-sharing and the prospect of unconstitutional coercion. As the OIG noted, “This lack of policy and strategy created a potential risk because social media companies provide a forum for speech, which is subject to protection under the First Amendment from infringement by the government.” 

As the DOJ continues to refine its policies and ramp up communication with social media companies, maintaining transparency and public trust will be crucial.

The OIG report further explains that while the First Amendment may not be offended if the FBI simply shares information about foreign malign influence threats, “concerns may arise if that information is communicated in such a way that those communications could reasonably be perceived as constituting coercion or significant encouragement.” 

Furthermore, the OIG said at least one of the documents guiding the FBI’s general information-sharing practices recognizes that “it is not necessary for law enforcement action to totally undermine the exercise of First Amendment rights for the action to be unconstitutional.” However, the OIG noted that the general guidelines, which do bar investigations based solely on First Amendment-protected activity, do not provide specific guidance for how the FBI can ensure First Amendment rights are protected when it shares information with private companies. 

The FBI employs what it calls an “actor-driven” rather than a “content-driven” model. That is, FBI officials claim they do not monitor specific content or themes on social media. Rather “the identity as a foreign actor and their activities [drive] the nature of the information” it shares with social media companies. That said, FBI personnel acknowledged that they do at times share information about messages or themes that actors carrying out foreign malign influence operations may use. 

Independent evidence also highlights this practice. For example, Meta CEO Mark Zuckerberg told Joe Rogan that during the 2020 election, the FBI warned Facebook about an expected dump of election-related misinformation.

OIG recommends DOJ develop strategic plans, make information-sharing policies publicly available

OIG found that neither the FBI nor the DOJ have specific policies or guidance for sharing information about foreign malign influence with social media companies. However, after the DOJ reviewed a draft of the OIG report, the DOJ informed OIG that it had implemented guidelines in February. In fact, the DOJ began developing the guidelines in response to the initial rulings in Missouri v. Biden in 2023, and those guidelines are now standard operating procedure.     

One small problem: Those procedures are not available to the public.

Therefore, the OIG recommended that the DOJ publicly release those procedures. The DOJ agreed, and in late July, the agency released a summary of its standard operating procedures. After it finalized the procedures, the DOJ resumed sharing foreign malign influence threat information with social media companies. It also said it will resume quarterly meetings on the topic with social media companies. 

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From a pro-free speech perspective, the procedures (at least as summarized) are promising. They require all communications with social media platforms to make clear the FBI is not asking the company to take any particular response or change its terms of service. Such a requirement does not, of course, completely alleviate First Amendment concerns. As FIRE Director of Public Advocacy Aaron Terr has said, the FBI “flagging” content is a lot like your boss asking you to stay late — it’s not a suggestion. Still, this appears to be a step in the right direction. 

The OIG also found that the DOJ does not have a comprehensive strategy for engaging with social media companies on the topic of foreign malign influence. It therefore recommended that the DOJ develop such a strategy so it can better respond to an evolving tech and threat landscape. Importantly, the OIG specified that the strategy should recognize the First Amendment implications of communicating with social media companies, a move the OIG believes would help increase public trust in the DOJ. 

The DOJ also agreed with this recommendation and has committed to taking steps towards this goal by publicly releasing the strategic principles by August 31. 

Transparency can help protect free speech

The OIG’s July report examines only one small piece of one large agency’s communication practices with social media companies, and there remains much we don’t know.  Still, the fact that the report critically considers potential risks to First Amendment rights is important.  

A robust online discourse cannot flourish when the American people fear their government is pressuring private platforms to censor disfavored views. More transparency from the FBI, the DOJ, and others would go a long way in protecting Americans’ free speech rights. That’s why earlier this summer, FIRE released model legislation that would require the government to disclose information about its communications to social media companies regarding content moderation.  

As the DOJ continues to refine its policies and ramp up communication with social media companies, maintaining transparency and public trust will be crucial. We will keep an eye on the situation, putting First Amendment rights first regardless of whether the DOJ does the same.