Government Cannot Become Big Brother: Internet Censorship Must End

There are some simple solutions to address these basic problems. The first is that Congress, the courts, or both, should prohibit the government from having a seat at the content table. The First Amendment reflects a commitment to the values of free expression that prohibits the government from being an arbiter of speech. That principle should be applied to the internet.

To do this, defined lines should be drawn to prevent the blurring of government and private actors. Censorship has thrived under the guise of being the actions of private companies, who are in fact third-party intermediaries. The government has pointed the finger at private companies and claimed that the censorship was not done by government, when in fact a government official picked up the phone or sent an email informally urging the action. As documents from watchdogs and lawsuits have shown, this relationship was often either collusion or coercion. New policy must clearly define who can and cannot evaluate internet content and for what reasons. Law enforcement may have limited legitimate purposes such as identifying child pornography, for example, that other officials like the Secretary of Transportation would not.

Some censorship is done under the guise of preventing “foreign” interference. But in the world of the internet, it is nearly impossible to decipher what messaging is “foreign” and what is an American citizen expressing constitutionally-protected speech. Rather than suppress the perceived dis or even malinformation, government institutions should persuade with their own information that can be evaluated and considered by all.

Another tactic to justify censorship is to redefine the authority granted to federal agencies. For example, the Cybersecurity and Infrastructure Security Agency, a Department of Homeland Security subagency, has expanded the definition of “critical infrastructure” beyond the traditional and acceptable meaning and has hinted at wanting to go as far as to regulate America’s “cognitive infrastructure.” The power given by Congress to the Department to oversee the safety of dams, power plants, etc., should not be transformed (by executive fiat nonetheless) to empower bureaucrats to police ideas and anecdotes. The stretching of definitions must be addressed by Congress.

Government also funds private companies who perform censorship activities. The Global Disinformation Index, for example, was awarded grant money from the State Department’s Global Engagement Center. Put simply, this activity is inconsistent with the values underpinning the First Amendment and must be prevented from happening.

Finally, these policy changes need teeth. Government officials who are found to continue to coordinate with internet companies to suppress speech must face consequences in the form of firing, civil liability, or even criminal liability.

As with any innovations in history, over time, bad actors learn to abuse the newly found powers to their advantage. With the internet, it took a decade or two for censorship to develop. But now that the problem exists, it is time to dismantle the censorship regime before it becomes too late. Simple and common-sense reforms, consistent with what is described above, would go a long way toward stopping the modern censorship industrial complex from becoming business as usual.

Gary Lawkowski is a lawyer with the Dhillon Law Group, where he advises and represents clients on legal issues including matters concerning the Freedom of Information Act. He previously served in government as Counselor to the Secretary of the Interior, Senior Advisor to the Domestic Policy Council, and Counsel to three Commissioners on the Federal Election Commission.

Curtis Schube is the Executive Director for Council to Modernize Governance, a think tank committed to making the administration of government more efficient, representative, and restrained.