On Monday, the U.S. Supreme Court heard oral arguments in a case that could decide whether government actors can pressure social media companies to remove certain harmful content from their platforms. A ruling is expected to come in June, just a few months ahead of the 2024 elections.

Meanwhile, as America’s relationship with China has become more strained than ever, the U.S. Congress may force a divestiture of TikTok from Chinese parent ByteDance over concerns with how the platform’s use in the U.S. could imperil national security. The bill would ban TikTok’s use in the U.S. if a sale is not completed within six months.

At the same time, the spread of misinformation and disinformation through online platforms, while not a new phenomenon, is abetted by increasingly sophisticated A.I. technologies that are now capable of generating “deepfake” audio and video content. The associated risks to the information ecosystem could influence American elections in ways that were not possible in years past.

In conversations this week with the Washington Blade, two experts outlined the threat landscape with respect to Big Tech, identifying election-related risks that are both preexisting and new. They also shared ideas for regulatory solutions and thoughts about the advantages and disadvantages of various moves that have been undertaken by U.S. lawmakers and other officials.

Chris Bronk is an associate professor with tenure at the University of Houston’s Hobby School of Public Affairs, having previously directed the university’s graduate cybersecurity program and served on the faculty of the College of Technology. He previously held high-profile positions, including a senior adviser role, at the U.S. Department of State. Bronk’s areas of expertise include internet censorship, online surveillance, border security, public diplomacy, organization information technology, and critical infrastructure protection. 

Barbara (“Barb”) McQuade is a lawyer who served as U.S. Attorney for the Eastern District of Michigan from 2010 to 2017, becoming deputy chief of the National Security Unit and prosecuting high-profile cases from public corruption and bank fraud involving elected officials to the theft of trade secrets. She is a professor of practice at the University of Michigan Law School as well as a legal analyst for NBC News and MSNBC. McQuade’s areas of expertise include criminal law and procedure, national security, data privacy, and civil rights.

Is TikTok more dangerous than American tech platforms?

Some critics of the TikTok bill feel the platform has been unfairly singled out, especially since the major American-owned competitors in online social media or short-form video sharing platforms have themselves faced scrutiny over many of the same issues lawmakers have identified with TikTok, from risks associated with the improper collection and misuse of data to design features that knowingly amplify the spread of harmful content.

The difference, McQuade said, is that when it comes to American tech platforms, the “U.S. government could impose laws that could control their bad behavior” whereas because foreign owned entities largely operate beyond the reach of U.S. regulations, “we have to be extra mindful when a social media platform that has so much power is outside of the control of American government.”

“There are a lot of things we just don’t have visibility into,” she said. “So it could be that [foreign actors are] engaging in influence campaigns by putting certain videos online,” and even though “we don’t know that that’s happening,” McQuade noted “it’s a possibility and we lack recourse.”

“With regard to scraping data, I mean, we know Facebook is doing this, scraping our data and giving it away to researchers or selling it, but we have some recourse if we choose to exercise it,” McQuade said. “If it is the government of China who is doing that, we don’t have visibility into what they’re doing with it.”

She added, “Maybe they’re only using [the data] for helpful purposes, like in the same way Netflix suggests content that we like and we look at it and say, ‘yes, in fact I do’ — or is it being used to build dossiers on [users] so that we can be recruited for and leveraged and extorted to engage in espionage?”

“People make a lot of, essentially, the intelligence and information gathering aspect of TikTok, and I don’t know if it’s a whole lot different than what people do on Facebook,” Bronk said, adding that there is probably “too little” concern about Facebook’s conduct and influence among U.S. lawmakers and government officials.

At the same time, he said, “the issue I have with TikTok is that it’s a social media tool from China, or a social media platform from China, and U.S. social media platforms are banned in China,” which has long enforced prohibitions against the use of products made by companies like Google, YouTube, X (formerly Twitter), Instagram, WhatsApp, and Facebook.

In the U.S., Bronk said, free speech and expression, including criticism of the U.S. government, are protected (so long as the conduct does not involve, say, leading an insurrection by storming the U.S. Capitol Building). By contrast, he said, “when we were doing our censorship research on China, you know, if you complain about pollution in China, on any given day, no big deal; if you do it for two days in a row, maybe not a problem; but on the third day, you’re gonna get censored because you’re complaining too much.”

Likewise, Bronk said, the information ecosystem in the U.S. is shaped, at least to some extent, by a free and independent press, while China’s is not — further complicating the role played by social media and online platforms in the dissemination of news. And the two countries also have very different records with respect to human rights, Bronk added, noting that LGBTQ Americans enjoy many freedoms and protections that are not available to their Chinese counterparts.

“We’re pretty tolerant and China is not,” Bronk said. “So the idea that China exports this social media platform that it attempts to control very vigorously at home, I think that’s the issue I have, that it’s not a level playing field. And as long as it’s not a level playing field, the question is why should we play at all?”

Part of the problem, Bronk said, stems from the worsening geopolitical relationship between the two countries. “We in diplomacy circles hear this term, ‘no guardrails; no bottom’ — so we don’t know how much worse it can get, and we don’t really have the guideposts that we would have on a relationship like that that we had during the Cold War, through summits and things like that.”

The tussle now unfolding over TikTok, he said, “is part of a much larger geopolitical contest between the West and China. And not even just the West and China, now, but with China and its friends, which means North Korea, which is the only country that has a pact with China, and Russia and Iran. And so the question really becomes, how much are we going to delink the United States from China?”

TikTok’s algorithmic recommendation engine is owned and controlled by ByteDance, and the company would have to obtain permission from the Chinese government to license or sell the technology, which is likely to complicate negotiations over a divestiture.

Should TikTok’s ownership change hands, Bronk said the company would still face an uncertain future — partly because the sale would cause a “forking of the algorithm,” with the underlying software being developed simultaneously by ByteDance in China and by a different firm in the U.S., and also partly because TikTok’s success relies on the scale of its user base and volume of content hosted on the platform.

“Even if the ownership changes, platforms die,” he said. “Facebook is decidedly uncool for a generation of Americans now. X’s usership has declined precipitously since its purchase. MySpace is dead and buried. So what’s to say that TikTok isn’t bought by American buyers who spend billions of dollars and then the train wrecks?”

Election interference, misinformation, disinformation, and A.I.

“This idea that that they have all the interest in the world to try to manipulate — the Chinese and the Russians — to manipulate electoral behavior in the United States to get the candidate they want, I find it very frightening,” Bronk said. “And I think we’re very poorly prepared to monitor the situation.”

However, 2024 would not be the first time in which individuals and groups overseas, acting in the interest of foreign governments hostile to the U.S., have sought to influence American elections through social media and other channels.

Special Counsel Robert Mueller’s Report On The Investigation Into Russian Interference In The 2016 Presidential Election, which was released in 2019, “identified a lot of Russian influence actors,” McQuade said, pointing to the propaganda-peddling Internet Research Agency, a “troll farm” financed by an ally of Russian President Vladimir Putin with ties to Russian intelligence that supported former President (then-candidate) Donald Trump’s bid for the White House.

She noted that the firm was known to publish fake posts on social media and build large online followings for fake accounts like “Blacktivist,” which posed “as a very reasonable, interesting, Black activist” and “then when it came close to the election said things like, ‘we should not vote for Hillary Clinton because she’s taken our vote for granted. Let’s send a message that we should not be ignored by not showing up at the polls and voting for her.'”

McQuade was quick to point out that these tactics to subvert American elections have been used by American actors, too. She noted, for example, a campaign in which U.S.-based political operatives sought to suppress the vote in Black communities during the 2016 presidential election by telling Black voters voters that they could cast their ballots via SMS text messages.

Drawing a distinction between the various different methods by which American elections might be manipulated, McQuade noted that the U.S. Department of Homeland Security has declared election-related “hardware-software processes ‘critical infrastructure'” and is therefore “looking to anything that might intrude upon that or hack into that.”

“Equally important are influence campaigns that peddle in false information and use information as a weapon,” she said. “And I think that’s something that our Department of Homeland Security, our FBI, needs to be looking at” alongside the “private actors who look at disinformation at all of the social media companies.”

Anti-LGBTQ misinformation is an example of how “the far right extreme portion of the Republican Party is trying to sow discord in society” with influence campaigns designed to exploit differences between different people and different groups for political gain.

“This false narrative that the LGBTQ community wants to groom your children for pedophilia,” she said, is evidence of the extent to which rhetoric that was once considered hyperbolic and out-of-bounds for political discourse is no longer taboo. “I used to joke,” McQuade said, that politicians would say to voters, “my opponent wants to eat your children.”

When online content is false or deceptive, McQuade said, “it’s really about flagging, and one hopes that the social media companies” will take steps like directing users “to accurate information rather than taking down information that [they] might find misleading.”

“The other brand, I think, is actual disinformation about the process of voting and I worry about that, which could cause people to become confused about the rules for voting or exhausted by trying to figure it out and discouraged from casting a ballot altogether,” she said.

McQuade said A.I. technologies might continue to play a role in this type of election interference, pointing to a scam in January, days before the 2024 New Hampshire primary elections, in which residents received robocalls in which an A.I.-generated clone of President Joe Biden’s voice urged them not to vote.

It can be difficult to convince people who have been duped by a convincing artificially generated deepfake, McQuade warned, which could show audio or video “evidence” of a candidate saying or doing something objectionable.

Bronk agreed, noting “every generation of those Nvidia chips that gets better, I mean, things look more and more real.” The company on Monday introduced its Blackwell B200 GPU, which according to The Verge is “the ‘world’s most powerful chip’ for AI” and according to Bronk is “30 times more powerful than the prior version.”

How can individuals defend themselves?

When asked how best to mitigate these attacks on elections, McQuade and Bronk agreed the American public must learn how to identify trusted and trustworthy sources of news and information and develop the skills to spot online content that might be false, misleading, manipulative, or artificially generated.

“What we need to do is push people in the direction of credible sources of information so that if and when this wave of disinformation comes around elections, people know their trusted sources online,” like the official government websites for the offices of secretaries of state or content published by nonprofit groups like the League of Women Voters, McQuade said.

“Some of this we’re doing to ourselves,” Bronk said, pointing to the fact that televised ads for political candidates are required to include disclaimers to indicate whether, for instance, the ad was authorized by the candidate or her campaign but funded by a political action committee (PAC), whereas political advertising on social media is regulated much more loosely.

Education is key, McQuade said, so that “when people are reading things online, they are able to be appropriately skeptical. They’re able to ask good questions, you know not just looking at the headline [but] looking for a second source, looking to a sizable data set if there’s a statistical study, understanding the difference between causation and correlation — there are a lot of things that we could all use to learn to build resilience against disinformation.”

She and Bronk both pointed to Finland as an example of a country that has sought to address the scourge of misinformation and disinformation spread by social media and online platforms by promoting digital and media literacy.

McQuade noted that, “in Finland, a country that has been affected by disinformation for a long time because of their proximity to Russia, they have introduced media literacy into their school curriculum to great success.”

The Supreme Court steps in

On Monday, The New York Times reported that the Supreme Court justices largely seemed receptive to arguments that U.S. government actors are free to contact social media companies over concerns about content on their platforms that may be harmful, so long as there is no coercion involved.

McQuade said this analysis “strikes me as the correct outcome” because so long as the government is not urging the platforms to take action by “coercing” them or making demands “with repercussions and consequences and threats, then I think it does not amount to any sort of prior restraint where they’re telling them what they can and cannot publish.”

In many cases, she said, the government is simply flagging content that runs afoul of — or seems likely to violate — the companies’ own terms of service or community standards, which would include, for instance, materials for the recruitment of users into terrorist groups like ISIS or promoting “purported cures for Covid that are, in fact, fatal.”

“Sometimes,” McQuade said, “there are statements that have a grain of truth, and then are pitched in a misleading way to advance a political agenda, and that’s where it gets tricky, because I think the government doesn’t want to be in the business of suggesting any sort of message that would favor one political party over another or one political candidate over another.”

Ultimately, though, responsibility over how to handle content moderation decisions lies with the social media company or online platform, McQuade said. “I don’t think that the government should be telling social media platforms what to do really in any circumstance,” but instead should be “merely flagging things which can be problematic and then letting the social media companies decide for themselves how they want to deal with it.”

Stronger regulation is needed

“We can regulate social media without running afoul of our First Amendment rights,” McQuade said. She suggested, as a “first step,” regulating the algorithms used by the tech platforms, pointing to Facebook whistleblower Frances Haugen’s 2021 testimony before Congress about how the platform’s software was deliberately designed to amplify content that drives outrage and, therefore, engagement.

“Why couldn’t we regulate the algorithms,” McQuade asked, “to either prevent them from stoking outrage or at least requiring them to disclose the way they’re stoking outrage so that people would know when they’re being manipulated and could choose to avoid it?”

“When you look at other industrial processes, like oil fracking, the federal government and state governments have a pretty accurate idea of how it works and what they’re doing with it, what chemicals they put in the fluids, all the processes — the oil companies have to explain all this stuff,” Bronk said.

By contrast, he said, “we don’t have transparency into any” of the algorithms used by large digital platforms. “We don’t know what the Facebook algorithms look like; we don’t know what the Google algorithms look like.”

Online platforms and social media companies “don’t want to be regulated,” Bronk said. “This is where we live now: We have all this technology that we don’t really understand how it works, we don’t know what the second and third-order effects of it are gonna be. And, you know, basically the companies are saying, ‘trust us, it’ll be fine,’ and I don’t think that’s necessarily the truth.”

The government could also establish stronger guardrails around how social media companies collect user data and sell it for purposes of micro-targeted advertising, whether for products or electoral candidates, McQuade said. “There are a number of things we can do without running afoul of the First Amendment.”

Additionally, while the Supreme Court’s 2010 decision in Citizens United v. FEC established that “corporations and other organizations have a First Amendment right to unlimited spending on campaigns,” McQuade said “we could require disclosure of how they are spending that money.”

“All we see are these big ads with Super PACs, with names like The Red, White, and Blue Grandmothers of America, and we don’t know who they are,” she said. So, “bringing some transparency to campaign finance would be a really good first step to avoiding the influence of big money” from individual donors or special interest groups whose campaign funding apparatuses and lobbying efforts are often deliberately disguised to look like popular grassroots organizing efforts.

The practice is often called “astroturfing.” “The internet makes it so easy,” Bronk said.

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Bronk is the author of “Cyber Threat: The Rise of Information Geopolitics in U.S. National Security.”

McQuade is the author of “Attack from Within: How Disinformation Is Sabotaging America.”