From Russia With Love

Abstract

This Article examines the questions of Election Interference in a digital interconnected age. It identifies a typology that distinguishes between: (1) “Election Hacking,” which targets infrastructure and records; and (2) “Influence Operations,” which comprise persuasive messaging targeting how or whether individuals choose to vote. It distinguishes between the types of technological and legal solutions available to each category and between the types of ex ante and ex post legal solutions and redress that are available in each category.

Using this typology of problems and potential solutions, this Article concludes that the persuasive messaging regarding policy matters poses the greatest challenge in unlawful foreign Election Interference. These Influence Operations are not amenable to technological methods of prevention and face significant challenges for legal solutions. Ex ante legal solutions face steep First Amendment hurdles, and ex post legal redress either is unavailable or nonjusticiable.

Despite these challenges, this Article argues that three categories of actors, working within their respective capacities and limitations, can significantly mitigate the impacts of unlawful foreign Influence Operations. Government actors can conduct investigative and counterintelligence operations to identify unlawful foreign activities, shut them down, and potentially stop dissemination before they enter the protected political sphere. Such activities also can inform the choices of social media platform operators to enforce rules, flag content, and provide links to official or trusted third-party information sources on their “private property.” And engaged, respectful, and persuasive discourse among individual citizens can directly mitigate the impact of Influence Operations. Indeed, this information “market” has functioned for centuries in traditional media, and there is no reason to believe that it cannot continue to do so, buttressed by carefully construed government assistance.

Keywords: influence operations, election interference, election hacking, cybersecurity, elections, hacking, risk management