The New Fighting Words?: How U.S. Law Hampers the Fight Against Information Warfare

Abstract

The United States prides itself on freedom of speech and information. However, enemy states have weaponized these prized freedoms against the United States. The First Amendment, the Privacy Act, and other U.S. laws designed to protect Americans’ civil liberties paradoxically constrain the United States’ ability to combat information warfare by its enemies. This Article argues that the United States must reform laws and doctrine concerning speech, information, and privacy in order to protect the democratic process and national security. By exploring the example of the Russian threat to the U.S. electoral process, this Article will illustrate how enemy states wield the United States’ own laws against it. It will also explain how justifiable concerns with infringement on civil liberties have hindered the United States’ response. The Article concludes with recommendations on how courts, legislatures, and policymakers should balance First Amendment and privacy rights with national security interests to combat enemy information warfare.

Keywords: Information Warfare, Information Operations, First Amendment, Constitution, Free Speech, Privacy Act, Russia, election

JEL Classification: K1, K40, Y8, Y80, Y9, E38