Russian Information Warfare and BigTech Censorship

Elon Musk has decided to buy twitter, and claims that he intends to defend free speech. This announcement has sparked many American reactions. But beyond the US domestic debate, several important issues are rarely raised.

The US debate is essentially a domestic debate centred on the censorship that targeted Donald Trump during the election: in essence, Democrats blame social media for the violence fuelled by Donald Trump, and ask them to censor content leading to such violence, and Republicans oppose this censorship by posing as defenders of free speech.

A common US view is that social media are 'private' spaces or subject to private rules decided by their owners. This view is in itself problematic: is the exchange of ideas between citizens a commercially exploitable commodity like any other? Should a private company be allowed to exploit the exchange of ideas between citizens of another country according to its own rules? Obviously not. These exchanges fall within what must now be defined as the intangible territories of nations, and which fall within the purview of their digital sovereignties.

And in fact, when asked what he meant by "freedom of expression", Elon Musk said that Twitter should simply respect the law of each country, and that if the people of a country want more rules, they should just pass new laws. This position is perfectly in line with the basic principles of democracy.

This is not necessarily the most shared view in the US, where the first amendment of the constitution is absurdly deviated:

In Texas, a law aimed at countering BigTech censorship was blocked by an interpretation of the First Amendment that considers that a social network has the right to decide its editorial line by choosing what it publishes and what it censors, and that this choice falls within its freedom of expression, which is protected by the First Amendment1 . The consequence of such a view is that the US First Amendment would grant BigTech the right to censor whoever they want anywhere in the world: this is a cybercolonialist stance.

Another interpretation of the First Amendment: Donald Trump, who sued Twitter for censoring him, was dismissed by Californian judge James Donato on the grounds that the First Amendment protects from government censorship, but not from private censorship2 .

Beyond these American debates, the European Union voted the Digital Service Act (DSA), which, and this is significant, is the extension of the e-commerce directive (2000/31 EC). And Thierry Breton, a French EU Commissioner who had previously stated that BigTech should comply with the DSA, then met with Elon Musk: the latter stated that he was perfectly in agreement3 with this European directive.

What the E-Commerce Directive established: Internet companies hosting user content are not liable for the content published by users provided that they censor this content as soon as they "know" that it is illegal.

The interpretation of this text presents a fundamental issue: either it is a judge who judges that a content is illegal, and there are no problems, or it is considered that it is the private company that must judge whether the content is illegal, and this constitutes a privatisation of justice, which on the one hand deprives the user of his right to a fair trial, and on the other hand increases the legal risk for the company, which the court could consider guilty of having misjudged a content. Obviously, judging all content would flood the judicial systems, but if we think about it, whether the evaluation of content is done by a judge or a moderator, the number of humans needed remains the same. And if a country's justice system lacks resources, it is always possible to finance it by a tax on BigTech.

The DSA directive exacerbates this problem by requiring BigTech to censor any content as soon as anyone flagged it4 as "illegal". Elon Musk is no doubt delighted by this, but he has probably not understood that he is obliged to comply with a law that privatises justice and makes him a judge. He, or his successor, even if the latter is a Russian oligarch in the service of Vladimir Putin. So Elon Musk needs to dig a little deeper if he really claims to be defending freedom of speech.

So BigTech are in a weird position where their legal certainty is threatened, on the one hand, and on the other they are offered the power to censor whoever they want. Representatives of the European Union have also stated that they want the DSA to serve as a global model. In other words, they want to grant BigTech the power to supersede judges and censor whoever they want in the world : again, this is a cybercolonialist posture.

Instead of which judge? This is an important question. Elon Musk said that he would respect the law of each country. However, even so, several problems remain. Sometimes laws are ill-defined or have become unintelligible: this is typically the case in France, where lawmakers are careful not to codify a communications law that has become unintelligible to the average person due to case-law piling up. Or in some countries, specific laws do not even exist. Or, in some countries, laws do exist, but they are liberticidal laws that do not respect freedom of expression. Elon Musk is therefore faced with a difficult problem: how to deal with rogue digital states? How do you protect the freedom of expression of Russian or Chinese users when the laws of these countries prohibit this freedom?

Coming back to the question of the existence of laws that BigTech should follow: there is one area where virtually no country has a specifically adapted law: that of Information Warfare, or the information component of Hybrid or Combined Warfare. The most obvious example at present is the case of the Prigozhin cartel: a nebulous group of formal and informal Russian entities operating in the field of mining, private military, and the manipulation of public opinion. While Prigozhin became famous with the IRA, the troll farm he financed in St. Petersburg to interfere in US elections, his destabilisation activities are much more developed in Africa, where he openly calls for coups, buys the press and journalists, and even provided a troll factory to Président Touadera.

While there is a bill5 in the United States to counter Russian information warfare activities, virtually no country has a specific law: it is essential that the laws governing free speech and those governing information warfare are distinct. In real life, who would admit that the same law applies to the press as to war?

Protecting the "freedom of expression" of state or non-state entities manipulating public opinion in information warfare operations targeting civilian populations is absolute nonsense. Countries that engage in such practices will attempt (and their proxies are already doing so) to have their information warfare activities protected by shamelessly claiming that their activities fall under the heading of freedom of expression. Finally, these rogue digital states are detrimental to digital rights: their activities may prompt legislators to ban the right to anonymity or pseudonymity, in other words, they may lead to mutate the Internet into a global techno-fascist identity control device, where anyone wishing to express an idea would first have to provide proof of their identity.