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

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.