By Lambert Strether of Corrente.

Spoiler alert: Yes, it may, owing to what would charitably be called ambiguity in the drafting, and yes, it does, because powers granted to the Act’s “Global Engagement Center” apply to U.S. citizens on US soil who work in media. To be fair, the sponsors of the “Countering Foreign Propaganda and Disinformation Act” (the Act) say differently, so let’s hear from them first. The Act was written by Rob Portman (R-OH) and co-sponsored by Chris Murphy (D-CT). From Portman’s press release on the Act:

WASHINGTON, D.C. – U.S. Senators Rob Portman (R-OH) and Chris Murphy (D-CT) today announced that their Countering Disinformation and Propaganda Act – legislation designed to help American allies counter foreign government propaganda from Russia, China, and other nations – has passed the Senate as part of the FY 2017 National Defense Authorization Act (NDAA) Conference Report. The bipartisan bill, which was introduced by Senators Portman and Murphy in March, will improve the ability of the United States to counter foreign propaganda and disinformation by establishing an interagency center housed at the State Department to coordinate and synchronize counter-propaganda efforts throughout the U.S. government. To support these efforts, the bill also creates a grant program for NGOs, think tanks, civil society and other experts outside government who are engaged in counter-propaganda related work. This will better leverage existing expertise and empower local communities to defend themselves from foreign manipulation.

And, a week after the Act was passed and the ruckus kicked up on “numerous small web outlets,” Chris Murphy:

“The United States wouldn’t be picking the messaging. The United States wouldn’t be censoring anyone’s newspaper or web site,” Murphy said. “We simply would be offering to help other countries’ in their efforts to produce more independent journalism to counter this Russian propaganda narrative.”

The legislation puts the State Department in the business of funding overseas news sites in hopes that could counter fake news propagated in their countries, such as a false story that President-elect Donald J. Trump hung up on the presidents of the Baltic nations.

U.S. Sen. Chris Murphy, D-Conn., said Tuesday that passage last week of a bipartisan measure he co-sponsored will strengthen the U.S. government’s ability to track and combat disinformation and propaganda overseas, especially by Russia.

So, the Global Engagement Center will have no domestic effects at all. It’s all about other countries. That’s what Portman and Murphy say. But what does the Act say? Let’s take a look. Portman’s original, standalone bill (S.3274 – Countering Foreign Propaganda and Disinformation Act bill) was folded into S.2943 – National Defense Authorization Act for Fiscal Year 2017, signed by Obama on December 23, at SEC. 1287. Global Engagement Center.

Drafting Ambiguities in the Purpose of the Global Engagement Center

Section 1287(2) of the Act establishes the Center’s purpose:

(2) PURPOSE.—The purpose of the Center shall be to lead, synchronize, and coordinate efforts of the Federal Government to recognize, understand, expose, and counter foreign state and non-state propaganda and disinformation efforts aimed at undermining United States national security interests.

There are two ambiguities here. The first and most obvious: Does the adjective “foreign” apply (a) only to “state propaganda,” or (b) to “state and non-state propaganda? Some readers chose (b), but my reading was (a), probably because I took “foreign state” for a noun phrase, and so don’t distribute the adjective “foreign” over both “state and non-state.” In other words, if the statute were to mean “foreign state and [foreign] non-state propaganda,” I feel that the drafters would have written “foreign state and foreign non-state propaganda.” And fortunately, in my quest for the meaning of “non-state actor” (which we’ll get to in a moment) I found an example where drafters did exactly that. From H.R.4681 – Intelligence Authorization Act for Fiscal Year 2015:

Report.–Not later than 180 days after the date of the enactment of this Act, the Director of National Intelligence shall submit to the congressional intelligence committees, the Committee on Armed Services of the Senate, and the Committee on Armed Services of the House of Representatives a report on the threat posed by man-made electromagnetic pulse weapons to United States interests through 2025, including threats from foreign countries and foreign non-state actors.

That is, because the drafters meant “foreign countries and foreign non-state actors,” they did not write “foreign countries and non-state actors,” as did the drafters of the Act.

So, if “non-state progaganda” can be produced by domestic entities, then clearly the Act does not apply only in “other countries,” as Senator Murphy would have it, and, contra Snopes, could very well apply to “American independent or alternative media.”

The second ambiguity is the source of the propaganda which, after all, has to come from somewhere. The origin of state propaganda is clear: The state. But what is the origin of non-state propaganda? There must be an agent somewhere, and in an attempt to discover that agent, I searched legislation (both proposed and enacted) for the usage of the phrase “non-state actor.”

In most cases, non-state actor is never defined. In the context of nuclear proliferation, “non-state actors” are presumbly the sort of “terrorist” (or “international terrorist”) organization that would wish to acquire a nuclear weapon. In the context of the Israeli-Palestian conflict, non-state actors are organizations like Hamas or Hezbollah; in Syria, non-state actors can be “vetted.” Non-state actors can also be “international criminal groups,” and “paramilitary groups.” Besides “recognized terrorist groups,” non-state actors can also be “individuals, mobs, vigilante groups, anti-government insurgents, [and] militant organizations.”

Clearly, the meaning of “non-state actor” is elastic. I found the following three definitions. (There are others, but it seems to me that the definitions that matter when consturing the law of the United States come from the law of the United States.) From an early version of the Frank R. Wolf International Religious Freedom Act:

(11) non-state actor .—The term ‘ non-state actor ‘ means a nonsovereign entity that— “(A) exercises significant political power and territorial control; “(B) is outside the control of a sovereign government; and “(C) often employs violence in pursuit of its objectives.”;

Since none of those “numerous small web outlets” control any territory, they are clearly not “non-state actors,” hence are not within the scope of the Act.

The second, from a less restrictive version of the Frank R. Wolf International Religious Freedom Act:

“(11) non-state actor .—The term ‘ non-state actor ‘ means a non-sovereign entity that exercises significant political power and is able to exert influence at a national or international level but does not belong to or ally itself to any particular country and often employs illegal violence in pursuit of its objectives.”;

This definition probably does not apply to any of those numerous small web outlets, depending on the meaning of “significant” political power. (It might apply to WikiLeaks, though.)

And the third definition, from H.R.1323 – Shahbaz Bhatti International Religious Freedom Act of 2015:

“(14) non-state actor .—The term ‘ non-state actor ‘ means any entity outside of government, including an extremist group or terrorist organization.”.

This definition, the least restructive, clearly does apply to, for example, Naked Capitalism, since NC is “any entity outside of goverment (i.e., the whole of civil society).

At this point, it’s worth noting that some legislation requires the President to list non-state actors formally. S.3117 – Department of State, Foreign Operations, and Related Programs Appropriations Act, 2017

(e) Designation of non-state actor s.—The President shall, concurrent with the annual foreign country review required by section 402(b)(1) of the International Religious Freedom Act of 1998 (22 U.S.C. 6442(b)(1)), review and identify any non-state actor s in such countries that have engaged in particularly severe violations of religious freedom, and designate, in a manner consistent with such Act, each such group as a non-state actor of particular concern for religious freedom operating in such reviewed country or surrounding region: Provided, That whenever the President designates such a non-state actor under this subsection, the President shall, as soon as practicable after the designation is made, submit a report to the appropriate congressional committees detailing the reasons for such designation.

The Act does no such thing.

So, summarizing, we can certainly build a case that the Act applies domestically to “alternative media.” First, there is a colorable claim that the Act is intended to apply to “non-state actors” whether foreign or not; and second, there is a colorable claim that the alternative media, as entities within civil society, are non-state actors.[1]

Domestic Data Collection and Domestic Funding by the Global Engagement Center

Let’s look at the functions of the Global Engagement Center. From the Act:

(b) Functions.—The Center shall carry out the following functions: (1) Integrate interagency and international efforts to track and evaluate counterfactual narratives abroad that threaten the national security interests of the United States and United States allies and partner nations.

Regardless of whether maintaining a “Chinese Wall” between “counter-factual narratives abroad” and counterfactual narratives that reach the shores of the United States — for example, that “the British government has learned” of yellowcake uranium in the Iraq WMDs disinformation campaign — note that “narratives abroad” is qualified with “abroad.” I would argue that means that functionality not so qualified can be performed domestically.

(2) Analyze relevant information, data, analysis, and analytics from United States Government agencies, United States allies and partner nations, think tanks, academic institutions, civil society groups, and other nongovernmental organizations.

Since “relevant information, data, analysis, and analytics” is not qualified with “foreign” or “abroad,” that means the information can be American, including American media. (Which makes sense if you want to track information propagation, or counter it, but gives the lie to the assertion that the Act “does not apply to American independent or alternative media.”)

(3) As needed, support the development and dissemination of fact-based narratives and analysis to counter propaganda and disinformation directed at the United States and United States allies and partner nations.

The argument above applies here.

(10) Maintain, collect, use, and disseminate records (as such term is defined in section 552a(a)(4) of title 5, United States Code) for research and data analysis of foreign state and non-state propaganda and disinformation efforts and communications related to public diplomacy efforts intended for foreign audiences. Such research and data analysis shall be reasonably tailored to meet the purposes of this paragraph and shall be carried out with due regard for privacy and civil liberties guidance and oversight.

Here is 5 U.S. Code § 552a – Records maintained on individuals:

(4) the term “record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;

Readers, I’ll leave you to imagine what the Global Engagement Center is going to do with your financial records, and what “reasonably tailored” and “due regard” might mean. But I’ll again point out that this function gives the lie to the assertion that the Act “does not apply to American independent or alternative media.”)

Now let’s follow the money. There is an “Information Access Fund”:

(1) AUTHORITY FOR GRANTS.—The Center is authorized to provide grants or contracts of financial support to civil society groups, media content providers, nongovernmental organizations, federally funded research and development centers, private companies, or academic institutions for the following purposes:

Note again there’s no “foreign” or “abroad” qualifier. So even if one grants that the purpose of the Act applies to foreign non-state actors as well as foreign states (which I regard as at best not proven), nothing says that money can’t go to domestic non-state actors to study foreign propaganda[2]. Indeed, “federally funded research and development centers” says as much. Therefore, the Act dangles the pleasant prospect before American “media content providers” — the Times, for example, or even Jeff Bezos’s vanity project — of being funded for the purposes listed.[3]

(A) To support local independent media who are best placed to refute foreign disinformation and manipulation in their own communities.

Note there’s no “foreign” or “abroad” qualifier on “local.”

(B) To collect and store examples in print, online, and social media, disinformation, misinformation, and propaganda directed at the United States and its allies and partners.

Note again the lack of a qualifier. The Center could store every post from every outlet on PropOrNot’s defamatory list, and get Federal funding for it.

(D) To support efforts by the Center to counter efforts by foreign entities to use disinformation, misinformation, and propaganda to influence the policies and social and political stability of the United States and United States allies and partner nations.

Counter how? The origin of the information might be foreign, but the “counter” might well be domestic. I suspect Obama’s head of the OMB, Cass Sunstein, would have some suggestions: See his paper on “cognitive infiltration” here, and Glenn Greenwald’s commentary. Obviously, if small web outlets with comments sections were cognitively infiltrated by paid trolls, that could have a severe impact on the quality of their communities and sucking up management time that would be better spent delivering product, with both factors combining to decrease profitability, and making it even harder for independent media to survive. This, too, would give the lie to the assertion that the Act “does not apply to American independent or alternative media.”)

Conclusion

A careful reading of the “Countering Foreign Propaganda and Disinformation Act” shows there is good reason to fear an impact on American independent or alternative media. As these numerous small web outlets are “non-state actors,” the Act can be colorably construed to apply to them, and many of the Act’s functions and funding opportunities impact them.

Maintaining Records on US Citizens

NOTES

[1] Snopes writes: “Numerous small web outlets inaccurately asserted that President Obama signed a “Christmas bill” criminalizing alternative media in December 2016. The provision is aimed at countering foreign sources of disinformation and does not apply to American independent or alternative media.” Snopes, at least as far as what’s on the page goes, did not check the wording of the statute; it relied only claims from the authors of the bill.

[2] Had Clinton won the election, the Act might well have been entitled “The Correct the Record Rice Bowl Act of 2016.”

[3] One can imagine more defamatory stories like the Post’s on PropOrNot being funded under the aegis of counting false narratives. The mind reels, as will the “numerous small web outlets” being given the Post’s treatment, again giving the lie to the assertion that the Act “does not apply to American independent or alternative media.”)

APPENDIX I: “State Actors” in the Law