Which is the more serious threat: people publishing false claims (which are subject to correction), or governments censoring political content they have judged to be false?
Yesterday afternoon, the official Twitter account of Brazil’s Federal Police (its FBI equivalent) posted an extraordinary announcement. The bureaucratically nonchalant tone it used belied its significance. The tweet, at its core, purports to vest in the federal police and the federal government that oversees it the power to regulate, control, and outright censor political content on the internet that is assessed to be “false,” and to “punish” those who disseminate it. The new power would cover both social media posts and entire websites devoted to politics.
“In the next few days, the Federal Police will begin activities in Brasília [the nation’s capital] by a specially formed group to combat false news during the [upcoming 2018 presidential] election process,” the official police tweet stated. It added: “The measures are intended to identify and punish the authors of ‘fake news’ for or against candidates.” Top police officials told media outlets that their working group would include representatives of the judiciary’s election branch and leading prosecutors, though one of the key judicial figures involved is the highly controversial right-wing Supreme Court judge, Gilmar Mendes, who has long blurred judicial authority with his political activism.
Among the most confounding aspects of the Twitter announcement is that it is very difficult to identify any existing law that actually authorizes the federal police to exercise the powers they just announced they intend to wield, particularly over the internet. At least as of now, they are claiming for themselves one of the most extremist powers imaginable — the right of the government to control and suppress political content on the internet during an election — with no legal framework to define its parameters or furnish safeguards against abuse.
Proponents of this new internet censorship program have suggested they will seek congressional enactment of a new law to authorize the censorship program and define how it functions. But it is far from clear that Brazil’s dysfunctional Congress — in which a majority of members face corruption charges — will be able to enact a new statutory scheme before the election.
Tellingly, these police officials vow that they will proceed to implement the censorship program even if no new law is enacted. They insist that no new laws are necessary by pointing to a pre-internet censorship law enacted in 1983 — during the time Brazil was ruled by a brutal military dictatorship that severely limited free expression and routinely imprisoned dissidents.
A top police official just yesterday warned that, absent a new law, they will invoke the authorities of one of the dictatorship era’s most repressive laws: the so-called Law of National Security, which contain deliberately vague passages making it a felony to “spread rumors that caused panic.” Yet he complained that the old dictatorship-era law is inadequate in part because it is too lenient, providing “only” for “months” in prison for those who disseminate “fake news,” which he called a “very low punishment.”
That 1983 legal framework was used by Brazil’s military dictatorship to arrest dissidents, critics, and democracy activists. That they are now eyeing a resurrection of this dictatorship-era censorship law to regulate and censor contemporary political expression on the internet — all in the name of stopping “fake news” — powerfully symbolizes how inherently tyrannical and dangerous are all government attempts to control political expression.
The move to obtain new censorship authority over the internet by Brazilian police officials would be disturbing enough standing alone given Brazil’s status as the world’s fifth most populous country and second-largest in the hemisphere. But that Brazil’s announcement closely follows very similar efforts unveiled last week by French President Emmanuel Macron strongly suggests a trend in which governments are now exploiting concerns over “fake news” to justify state control over the internet.
In his New Year’s speech to journalists at the Élysée palace, the French president vowed that his new law would contain some robust transparency obligations for websites — ones for which valid arguments may be assembled. But the crux of the law is censorship: During elections, “an emergency legal action could allow authorities to remove that content or even block the website.” As in Brazil, the new French power would cover social media platforms and traditional media outlets alike, allowing the government through an as-yet-unknown process to simply remove entire political websites from the internet.
Beyond having one’s political content forcibly suppressed by the state, disseminators of “fake news” could face fines of many millions of dollars. Given Macron’s legislature majority, “there is little doubt about its ability to pass,” the Atlantic reports.
Both Brazil and France cited the same purported justification for obtaining censorship powers over the internet: namely, the dangers posed by alleged Russian interference in the 2016 U.S. election. But no matter how significant one views Russian involvement in the U.S. election, it is extremely difficult to see how — beyond rank fear-mongering — that could justify these types of draconian censorship powers by Brasília and Paris.
There has never been any indication of any remote Russian interest in Brazilian’s domestic elections. The claims from Macron and France during the election that were uncritically believed by Western media outlets — that he was the victim of Russian hacking — turned out to lack any credible evidence, as France’s own cyber security agency concluded after an investigation. (That same pattern repeated itself in Germany, where vocal warnings about the inevitability of Russian interference in German elections were followed by post-election admissions that there was no evidence of any such thing.)
All censorship efforts rest on the same tactic: generating fear over exaggerated threats posed by villains, sometime domestic ones but more often foreign villains. The Brazilian and French tactic for inducing the public to acquiesce to this censorship faithfully follows that script.
Though presented as modern necessities to combat new, contemporaneous problems, both countries’ proposals have all the defining attributes — and all the classic pitfalls and severe dangers — of standard state censorship efforts. To begin with, the fact that these censorship powers are confined to election time makes it more menacing, not less: Having a population choose its leaders is exactly when free expression is most vital, and when the dangers of abuse of censorship powers wielded by state officials are most acute and obvious.
Worse, these new censorship proposals are centrally based on a newly concocted term that, from the start, never had any clear or consistent definition. In the wake of Donald Trump’s unexpected 2016 victory, U.S. media outlets produced a tidal wave of reports warning of the damage and pervasiveness of “fake news.” Seemingly overnight, every media outlet and commentator was casually using the term as though its meaning were clear and indisputable.
Yet, as many have long been warning, few people, if any, ever bothered to define what the term actually means. As a result, it’s incredibly vague, shifting, and devoid of consistent meaning. Do any news articles that contain false, significant assertions qualify? Is there some intent requirement, and if so, what is it and how is determined (does recklessness qualify)? Can large mainstream outlets such as the Washington Post, Le Monde, and Globo be guilty of publishing “fake news” and thus subject to this censorship, or is it — as one expects — reserved only for small, independent blogs and outlets that lack a powerful corporate presence?
Ill-defined terms that become popularized in political discourse are, by definition, terms of propaganda rather than reliable, meaningful indicators of problems. And invariably, they wreak all kinds of predictable havoc and inevitably give rise to abuses of power. More than anything else, such terms — which, by design, mean whatever the powerful groups wielding them want them to mean — so often produce arbitrary censorship in the name of combatting them. Just consider two similarly ill-defined but popular propagandistic terms — “terrorism” and “hate speech” — which have been appropriated by governments all over the world to justify the most extreme, repressive powers.
The last decade has seen multiple countries on every continent — including the world’s most repressive regimes — obliterate basic civil liberties in the name of stopping “terrorism,” by which they mean little other than “those who oppose our regime.” And then there’s “hate speech,” which can sometimes be used to silence Nazis or overt racists, but also can be and often is used to silence a wide range of left-wing views, from war opposition to advocacy of Palestinian rights. State censorship is always dangerous, but the danger is exponentially magnified when the censorship targets (terrorism, hate speech, fake news) lack clear definition.
Despite its recent invention, the dangers and abuse of the term “fake news” are already manifest all over the world. As the Committee to Protect Journalists documented last year, “China, consistently one of the worst jailers of journalists worldwide, has led the way in enacting vaguely worded restrictions encouraging journalists to adhere to the official narrative or risk being branded false news and charged with a crime.”
While the term was originally used in the U.S. to refer to factually false articles that supported Trump, its lack of definition enabled Trump himself to quickly appropriate the term to discredit journalism (some valid, some actually false) that reflected poorly on him. The right-wing, fascist Brazilian member of Congress who is currently in a strong second place in all polls for next year’s Brazilian presidential race, Jair Bolsonaro, has now enthusiastically adopted this tactic, routinely telling his followers to ignore clearly accurate reporting about him on the ground that it’s “fake news.” That was his predictable, and effective, response to a series of exposés this week from Folha, Brazil’s largest newspaper, detailing how he and his politician sons have mysteriously compiled a large, lucrative real estate portfolio despite living for the last decade on a very modest public salary.
If none of those points convinces you to oppose, or at least be seriously concerned about, efforts to control the internet in the name of “fake news,” simply apply the lessons of Donald Trump to this debate. For years during the war on terror, civil libertarians tried to generate opposition to vast, unchecked executive power — due process-free detentions, secret wars, targeting one’s own citizens for assassination with no charges — by warning that although one may trust these powers in the hands of leaders that one likes (George W. Bush or Barack Obama), at some point a president you distrust will enter the Oval Office, and by then, it will be too late to prevent him from exercising those powers.
So for those who are comfortable with the current French leader overseeing a censorship program in conjunction with courts to censor “fake news” from the internet, do you trust the Trump administration to make those determinations? Do you trust Marine Le Pen? Do you the trust the current Brazilian president who seized power under highly suspicious circumstances, who has been caught repeatedly committing serious crimes and whose approval ratings is less than 5 percent? Do you trust the truly fascist Brazilian candidate who has a real chance to become president this year of the world’s fifth-largest country? Do you trust the judges they appoint to make these determinations in conjunction with them?
Ultimately, the core question here is a simple one. Which is the more serious threat: the ability of people to publish false claims (which have existed since humans developed the capacity to speak or write, and are subject to correction), or vesting governments around the world to censor entire websites and social media postings on the ground that they have judged them to be “false” or “fake?” Since the advent of the internet, the one danger regarded as most menacing was having states and corporations assume control over the political content that one can express.
No matter how emotionally appealing or manipulative these justifications are — we must stop fake news — conferring that type of control is exactly what these new proposals are intended to do. They have already emerged in two of the largest and most influential countries in Europe and South America, as well as the world’s most populous country; their growth is only in its incipient stage.
First came the Never Trumpers, and I did not speak out, because they stood against Donald Trump. Then came the Lincoln Project, and I did not speak out, because their videos went viral. Then came the Chamber of Commerce, and by then it was too late.