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

31 Pages Posted: 1 Jul 2019 Last revised: 2 Jan 2020

See all articles by Jill I. Goldenziel

Jill I. Goldenziel

Marine Corps University-Command and Staff College; University of Pennsylvania; Harvard University

Manal Cheema

School of Law, Alumnus or Degree Candidate Author, School of Law, Alumnus or Student

Date Written: June 28, 2019

Abstract

As the “endless war” has shifted 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 that Americans hold dear. Fortunately, Congress has had some recent experience crafting legislation to balance national security with these constitutional rights: the Foreign Intelligence Surveillance Act (FISA). FISA, which was initially passed in 1978, was modified significantly after the 9/11 terrorist attacks. The statute 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 argues that 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 can serve as a framework for balancing the government’s need to access information, that may include USPER First Amendment information, to combat campaigns that threaten USPERs’ Constitutional rights.

Suggested Citation

Goldenziel, Jill I. and Cheema, Manal, Protecting First Amendment Rights in the Fight Against Disinformation: Lessons Learned from FISA (June 28, 2019). 79 Md. L. Rev. 114 (2019). Available at SSRN: https://ssrn.com/abstract=3411918

Jill I. Goldenziel (Contact Author)

Marine Corps University-Command and Staff College ( email )

2076 South Street
Breckinridge Hall
Quantico, VA 22134
United States

HOME PAGE: http://scholar.harvard.edu/jill

University of Pennsylvania ( email )

Philadelphia, PA 19104
United States

Harvard University ( email )

1737 Cambridge St.
Cambridge, MA 02138
United States

Manal Cheema

School of Law, Alumnus or Degree Candidate Author, School of Law, Alumnus or Student ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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