CISA barred from coordinating with social media sites to police misinformation

The 5th Circuit's re-ruling adds CISA to a list of alleged first-amendment violators. Next stop: Supreme Court

The US Fifth Circuit Court of Appeals has modified a ruling from last month to add the Cybersecurity and Infrastructure Security Agency (CISA) to a list of US government entities prohibited from working with social media outfits to curtail the spread of misinformation. 

This latest decision [PDF], issued yesterday, modified a ruling in the case issued in early September that found the White House, surgeon general, Centers for Disease Control and Prevention, and the FBI overstepped their authority by requesting sites like Twitter and Facebook restrict the reach of (or outright remove) posts by users that contained election or COVID-19 disinformation. 

While broadly the same as the September decision, yesterday's order added CISA to the list of US federal government entities that the States of Missouri and Louisiana, along with several individual plaintiffs, argued had violated their First Amendment rights to free speech. 

"CISA was the 'primary facilitator' of the FBI's interactions with the social-media platforms and worked in close coordination with the FBI to push the platforms to change their moderation policies to cover 'hack-and-leak' content," the 5th Circuit said in its decision.

In other words, stopping CISA from asking social media sites to restrict the reach of misinformation would interrupt the bulk of the Biden administration's moderation requests. 

The 5th Circuit further concluded that CISA acted as a "switchboard" for funneling moderation requests to social media sites that were flagged by state and local officials, but didn't stop at requesting censorship of offending posts.

"CISA officials affirmatively told the platforms whether the content they had 'switchboarded' was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently," 5th Circuit judges said. 

CISA told The Register that it wouldn't comment on ongoing litigation, but did provide a statement from Executive Director Brandon Wales in which he alleges CISA doesn't censor speech or facilitate censorship, and that any claims to that end are false. 

  "Every day, the men and women of CISA execute the agency's mission of reducing risk to U.S. critical infrastructure in a way that protects Americans' freedom of speech, civil rights, civil liberties, and privacy," Wales said. 

"In response to concerns from election officials of all parties regarding foreign influence operations and disinformation that may impact the security of election infrastructure, CISA mitigates the risk of disinformation by sharing information on election literacy and election security with the public and by amplifying the trusted voices of election officials across the nation."

Next stop: Supreme Court

Since the 5th Circuit issued its original opinion early last month confusion has built up around the case. This ultimately led the Biden administration to seek the Supreme Court's help in getting the original order enjoining the administration from communication with social media sites - issued by a Missouri court on July 4 of this year - held while it appealed the 5th Circuit's September decision.

According to the Biden administration, the 5th Circuit's first decision was written in such a way that would allow the lower court injunction to take effect regardless of appeals. Supreme Court justice Samuel Alito issued an order staying the lower court injunction on September 14. 

As we noted in earlier coverage of this case, experts believe the matter was likely to end up before the Supreme Court, and it appears that's now distinctly possible - Missouri Attorney General Andrew Bailey said his office had filed a response to the Supreme Court on September 20, saying on X that he intended to hold Biden and "his cronies" accountable for their actions. 

In its response to the Supreme Court, Missouri asked the justices to deny the Biden administration's request for a stay. It's not immediately clear if Bailey and his fellow plaintiffs would be asking the Supreme Court to extend the reach of its injunction; representatives for the plaintiffs didn't respond to our questions. It's also not immediately clear if the Supreme Court will decide to hear the case. 

Today's decision was part of 5th Circuit Court of Appeals case 23-30445, State of Missouri v. Biden. ®

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