A chalk message about "Fake News" is written on the street at Black Lives Matter Plaza near the White House, on Nov. 5, 2020, in Washington. DHS is facing heat for its newly-created disinformation board, but officials have long-puzzled over how to tackle disinformation without treading on Americans' rights. (Photo by Al Drago/Getty Images)

A top Republican on the House Homeland Security’s Committee is pressing the Department of Homeland Security for more information about the scope and authorities of a recently stood-up disinformation group.

In a letter dated May 4, Rep. Andrew Garbarino, R-N.Y., said he had “serious privacy and civil liberties concerns” with the recently announced Disinformation Governance Board at DHS and asks Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency, for more information on its makeup and authorities.

Specifically, he wants Easterly — who Secretary of Homeland Security Alejandro Mayorkas has described as leading the effort — to reconcile the work and mandate of the newly proposed board with the agency’s previous commitments to combat disinformation without stepping on the free speech rights of Americans.

“CISA’s own website states, ‘CISA’s publication of information materials about [disinformation] are intended for public awareness, and are not intended to restrict, diminish, or demean any person’s right to hold, express, or publish any opinion or belief, including opinions or beliefs that align with those of a foreign government, are expressed by a foreign government-backed campaign, or dissent from the majority.’ It is not clear that this new Board has the same intentions."

Garbarino asked Easterly for her views on CISA’s disinformation mission and authorities, the mission and authorities of the Disinformation Governance Board and how they intersect. He also wants to know how CISA will ensure its mission to respect the privacy and civil liberties of American citizens “is not encroached upon” by the board and how DHS plans to keep Congress informed on its workings.

The letter is one of numerous examples of GOP criticism of the proposed board. Others like Sen. Ron Johnson, R-Wis., have come out against the board while Rep. John Katko, R-N.Y., Garbarino's colleague and ranking member on the House Homeland Security Committee, already expressed his “profound concern” in a joint letter with House Intelligence Committee ranking member Michael Turner, R-Ohio.

“Given the complete lack of information about this new initiative and the potential serious consequences of a government entity identifying and responding to ‘disinformation,’ we have serious concerns about the activities of this new Board,” Katko and Turner wrote to Mayorkas on April 29.

Unlike some of his GOP colleagues, Garbarino, who routinely participates in oversight hearings on the topic, acknowledged that DHS and CISA do have some legitimate role building resilience against mis- or disinformation campaigns targeting critical infrastructure and U.S. elections. However, he warned that the board and its actions could potentially reshape how lawmakers view that mission.

“I have concerns the Secretary is tarnishing CISA’s reputation in this space and harming efforts that are already underway by introducing a new layer of bureaucracy that is justifiably causing panic among Americans about the government encroaching on their privacy,” Garbarino wrote.

Confusion, criticism of Disinformation Governance Board

The board’s creation has reignited a long-simmering debate that has been playing out the past five years over how — and even whether — the government should wade into the murky and nuanced discussion around disinformation.  

To be clear: while DHS has released little information to this point about the scope and responsibilities of this new board, the federal government has hundreds of policy and advisory boards in place to receive expert advice or coordinate broader action across agencies. None of them have the sort of dictatorial powers or authorities that have been speculatively ascribed to the Disinformation Governance Board by some of its worst critics, which, despite its name, would have no legal authority to unilaterally regulate speech on social media, impose fines on companies or individuals, or charge them with other legal consequences. Further, much of the broader debate around mis- and disinformation is less about outright censoring viewpoints than how opaque social media algorithms and business incentives can often lead to massive amplification of demonstrable falsehoods.

In an unattributed fact sheet issued in response to the criticism, DHS referred to the board as “an internal working group” that includes representatives from the DHS Office for Civil Rights and Civil Liberties and the Privacy Office. It also said that the department was committed to giving Congress proactive quarterly reports on the group’s business and will explore “additional ways to enhance the public’s trust in this important work.”

“There has been confusion about the working group, its role, and its activities. The reaction to this working group has prompted DHS to assess what steps we should take to build the trust needed for the Department to be effective in this space,” the fact sheet stated.

CISA’s mandate includes supporting the security and integrity of U.S. elections. After a massive Russian-directed campaign to influence the 2016 presidential election, agency leaders were initially reluctant to take on a mandate to fight disinformation, preferring instead to focus on closing technical vulnerabilities in voting machines and election equipment.

When it did start addressing the issue leading up to the 2018 mid-terms, efforts were squarely focused on the threat from foreign-led disinformation campaigns designed to sow chaos or undermine confidence in the U.S. political system. Officials developed guidance and best practices for spotting malicious information operations online, such as a tongue-in-cheek dissection of a fictional disinformation campaign that aimed to influence debate on whether putting pineapple on your pizza is delicious or gross.

However, that started to change when those same false and deceptive tactics were leveraged by then-President Donald Trump and his supporters to manufacture claims of massive voter fraud ahead of the 2020 election. CISA officials, who had spent years building up the trust and integrity of the election system, leaned into their role dispelling the most outrageous or false voting and election claims through their Rumor Control web page. When CISA Director Chris Krebs, who had helped shape the nascent agency’s core identity and mission, publicly contradicted Trump’s efforts to paint the election as illegitimate, he was fired via tweet.

While many Republicans have pounced on the board's creation, it would be misleading to cast opposition or concern about the government’s role combatting disinformation as a purely partisan dispute, or one that breaks down neatly along the usual ideological lines.

Civil liberties organizations, disinformation experts and even DHS itself at one point cast serious doubt on whether the federal government was an appropriate vehicle for anti-disinformation initiatives. Further, the rise of domestic disinformation in the United States has significantly complicated these efforts, as they have been largely carried out not by foreigners but Americans with clearly defined First Amendment rights.

Jameel Jaffer, director of the Knight First Amendment Center and former deputy legal director at the American Civil Liberties Union, noted that he was “less troubled by the Orwellian name than by the fact that the board is housed at DHS, an especially opaque agency that has run roughshod over civil liberties in the past.

A task force stood up by DHS in 2018 to coordinate policy on disinformation and malign foreign influence campaigns was eventually disbanded, but not before members concluded that any federally directed effort to curb the problem might actually backfire, as it could give the public the impression that the government is covering up bad news or putting its thumb on the scale of heated or unsettled public debates.

"We are fairly certain that in a lot of contexts, we are not the right messenger," one official on the task force told this reporter in 2018. "Hasty policy is rife with unintended consequences, so part of this is mapping out an idealized solution and figuring out a right way to tack a policy solution onto it. Because it's really easy to say, 'Hey, the government's not doing this, why isn't the government doing that?' But it's more useful to understand government's role in context with the other actors in this space."