Protecting First Amendment Rights in the Fight Against Disinformation: Lessons Learned from FISA

Jill I. Goldenziel and Manal Cheema

Protecting national security, especially in a time of crisis, can come at a cost to Americans' civil liberties. The U.S. government must make difficult choices between implementing the strongest possible protections from foreign threats and preserving Americans' constitutional freedoms at home. Irreparable violations to civil rights can and have occurred from striking the wrong balance. In a time of indefinite war against unconventional adversaries, the balance between protecting national security and preserving civil liberties is of utmost importance.

As the new “endless war” shifts from the war on terror to the information domain, Congress must enable the United States to fight enemy information warfare while protecting the rights to privacy and freedom of speech and information. Congress has had some recent experience crafting legislation to balance national security with these constitutional rights: The Foreign Intelligence Surveillance Act (“FISA”). FISA, initially passed in 1978, was modified significantly after the 9/11 terrorist attacks. FISA provoked robust debate in the national security community, prompting several amendments to its provisions, specifically those contained in the FISA Amendments Act of 2008 (“FAA”) and the FISA Amendments Reauthorization Act of 2017.

Lessons learned from debates over FISA can inform legislation that would balance national security and First Amendment rights in the fight against information warfare. FISA is an example of Congress's attempt to thread the same needle that any response to foreign disinformation campaigns must: allowing surveillance of foreign agents without unduly infringing on the First Amendment rights of U.S. persons (“USPERs”). This Essay will argue that FISA can serve as a framework for balancing the government's need to access USPERs' First Amendment-protected information to combat information warfare with USPERs' constitutional rights.