DHS, Social Media, & the Smith-Mundt Act

AP story header and lede

There is considerable confusion around what the Smith-Mundt Act does and does not do, specifically with regards to the United States government disseminating information within nation’s borders. The irony of this misunderstanding is thick and multilayered.

An Associated Press story, written by Tami Abdollah , revealed last week that the Department of Homeland Security has cleared its officers to set up and use fake social media profiles to investigate and monitor people applying for visas and citizenship in the U.S.

It is not surprising that the question of whether the Smith-Mundt Act applied has been raised. This is based on the assumption that the government’s social media profiles, fake or real, would interact with people inside the U.S., and thus be “disseminating” information to such persons.

For the short answer: no, the Smith-Mundt Act does not and never did apply to this situation.

This is not because of the Smith-Mundt Modernization of 2012. And, it is also not because of any other amendments, notably Senator Edward Zorinsky’s (D-NE) of 1985 and Senator J. William Fulbright’s (D-AR) of 1972. The answer remains “no” — that the act is not applicable or germane to this matter — based on the original language of the legislation as signed into law on January 27, 1948, as well all draft forms of the bill before then.

For the longer answer: it is unequivocal that the act never did and does not apply. Why does it even come up? Well, there are two different “Whys” that need to be discussed. The first is why does it not apply? The second is why do so many think that Smith-Mundt does apply?

First, we will start with the simple fact that Smith-Mundt is found in Title 22, Foreign Relations, of the United States Code, specifically 22 USC Ch 18 beginning with Sec. 1431. Starting with this, it should be clear that the act is not applicable to DHS (or the Defense Department, or NASA, or the White House Press Secretary, or Treasury, or the Department of Education, or the CIA, or any other government agency).

Second, if one reads the act (and I have personally found that very few, a fraction really, of those who invoke Smith-Mundt to declare something should not be done have read the text), it is clear what government agencies are covered by the legislation. These are the State Department (1948-1953); State and United States Information Agency (1953-1999); State, USIA, and Broadcasting Board of Governors (1999-present). The parenthetical years reflect when the listed departments ran, or had a role in, the authorized programs. For example, the State Department ran, or had a role in, all of the programs authorized by Smith-Mundt from 1948-1953. In 1953, USIA was created and the legislation was amended imperfectly. When USIA was abolished in 1999, the legislation was again amended imperfectly so that some sections read as if the organizational assignments were pre-1953 (ie pre-USIA), some read as if it were pre-1999 (ie during USIA’s existence), and some after BBG was established as an independent agency (it was created in 1994, but became independent when USIA was abolished in 1999). (The BBG renamed itself the U.S. Agency for Global Media, but the legislation has not been changed to reflect this, hence another inconsistency in the USC.)

There was never a mention of DOD, USAID, DeptOfEd, NASA, or the WH, and it never applied to any of them. Ever. The lone DOD legal counsel advice on whether Smith-Mundt applied to DOD was based on the (faulty) premise that since DOD was doing some international communication activities that State would ordinarily do, DOD is probably subject to the same restrictions. This imaginative interpretation of the law — pretending that a select bit of Title 22 applies to Title 10 or even Title 50 activities — was a contributing factor to the HASC putting forth the amendment to the Smith-Mundt Act to clarify that it does not apply to DOD. 

If one searches the web or Twitter, there are countless screams that President Obama, who signed into law the Republican-sponsored and authored amendment of 2012, “repealed” the Smith-Mundt Act and thus unleashed vast political propaganda onto the American public. This is a patently and demonstrably false narrative. (It appears that the actual basis for these allegations comes from a combination of “dark money” spending enabled by Citizens United, changes in the use of social media for political and other purposes, and a general polarization of the political and news marketplace. However, many of the twitter account yelling about the “repeal” appear to be bots and trolls, though we should not rule out the willfully ignorant and tinfoil hat wearers.)

Now to the “why” there is this confusion. The 2012 amendment was necessary, though it should not have been so, because, in the 1960s, Sen Fulbright began attacking USIA and VOA (he attacked RFE and RL, too, but the two still-separate agencies were not under Smith-Mundt nor USIA at the time). He had considerable disdain and distrust of the “Radios” and USIA’s information programs (contributing to this was Fulbright’s belief communism and Russia were not a threat to the U.S. but are information programs were causing an adverse reaction). At the time, material produced under the authority of Smith-Mundt, which at the time included USIA’s information programs (which were vastly more expansive than the activities of VOA), was available to Congress and the press (and thus the public) “by request.” This language was used to protect State, but really the federal budget, from blanket requests for State (1948-1953) and USIA (1953-onward) material to be translated from whatever language it transmitted (over the air, film, paper, etc) and available in English. In other words, the draft language requiring the department to translate all of its material to English and make it all available within 15 days of transmission was revised to “by request” when the department reminded Congress that it would need more appropriations for the translation, filing, and fulling of the material and requests.

Fulbright successfully amended Smith-Mundt in 1972 to change “by request” to “by request…for examination only”, which applied to the press, academics, and Congress. He also inserted the language “shall not be disseminated” within the US and its territories (with intentional deliterous effects). By the way, also in 1972, Fulbright said VOA, RFE, and RL “should take their rightful place in the graveyard of Cold War relics.” (In 1973, at Senate hearing, a witness testifying about what we’d now call Russia’s political warfare, that, “Looking at the voting record of the junior Senator from Arkansas on the Negro rights, I wonder why nobody refers to him as a ‘relic of the Second Zulu War.’”) 

By the way, the “shall disseminate abroad” which appears in the original legislation and was not amended by Fulbright was a specific authority requested by the department and not a restriction. It has been common to assert that language was the “firewall.” It was not. Without the language, the State Department’s authorities in 1948 would have restricted the department’s information activities to the Americas (plus, if I recall, the Philippines and possibly Liberia). (Note: I was guilty of the same assumption until I dug deeper and read Congressional testimony and Execute Session transcripts where the purpose for these three words was stated clearly. The drafts of the bill, even through late 1947, made it clear the “shall disseminate abroad” was a destination and not a restriction.)

After Fulbright came Sen Edward Zorinsky (D-NE). Zorinsky was upset with USIA for other reasons, primarily. He was alleging nepotism at the agency, commenting that many officials there have the same last names as senior current and past administration officials (yes, many offspring of senior admin officials were working there). He was upset that the USIA Director spent ±$30,000 of agency funds on a home security system (the USIA Dir, Charlie Wick, paid most, not all, of the money back). Zorinsky also, based on a read of his public statements, believed that Otto Reich’s Office of Public Diplomacy at the State Department had something to do with USIA because, well, both did “public diplomacy,” which of course was not true. Zorinsky was also upset that the new Cuba broadcasting operation USIA was launching, Radio Marti, was interfering with some of his constituents broadcasts. A lot of bad blood that led Zorinsky to amend Smith-Mundt 1985 to “close the loophole” left by Fulbright.

A line by Zorinsky is often quoted but rarely cited, and always absent the context: “The American taxpayer certainly does not need or want his tax dollars used to support U.S. Government propaganda directed at him or her.” The context of that statement matters and has always, based on my research, ignored. At the time, he was comparing USIA to a Soviet propaganda agency.

Zorinsky’s amendment resulted in a federal court ruling a few years later that USIA material was exempt from FOIA requests. This cemented the view that Smith-Mundt was a law to protect Americans from propaganda from their own government. This view and timing is ironic in two different ways. First, Smith-Mundt was created and passed as the basic authorization for countering propaganda against the U.S., its people, and its policies. Second, at around the same time, the federal DC court ruled on USIA and FOIA, Congress watered down FARA, the Foreign Agent Registration Act, and removed the requirement to label foreign government information as sourced from a foreign government (ie no longer require the labeling of it as propaganda). This was completely unrelated to the USIA legislation and court case, but funny that at the same time “we” determined the USIA material was so unfit for Americans that they could not even request to see it, even for “examination only,” we remove the requirement to label foreign propaganda as propaganda. 

When USIA was abolished in 1999, the USIA alumni beat the Smith-Mundt-prevents-domestic-propaganda drum because they saw it as the only way to protect the foreign facing “public diplomacy” programs from becoming domestic-only facing. This too was inaccurate and willfully ignorant of appropriations and authorizations. And of course, the mythology only continued to grow. Several years back, a CBS radio producer questioned whether a newly launched TV station by NASA violated Smith-Mundt. 
That’s the crux of it. 

Is Smith-Mundt invoked to limit activities, within our borders or abroad? Yes, and much more so in the past. NATO’s TV channel once requested a VOA film, but they were denied because an American might see it. Now, let’s make clear something else: Smith-Mundt never had a citizenship test, only a geography test. I’m sure many members of this group can provide IO/PSYOP/SC activities that were shut down, neutered, slowed up, or simply not executed because “Smith-Mundt.” 

No, the limits on social media came from other limits, such as Title 50 restrictions on PSYOP, etc. Way back when, IO & others engaged in social media with adversarial targets required public affairs authority to engage people suspected or actually inside the United States. The deception angle (false identity, for example) had similar restrictions, PA doesn’t do that, for example. All sorts of mess. But none of it was Smith-Mundt. 

If you’re still reading, then consider that the closing of USIA, the marginalization and confusion over what is / is not “public diplomacy,” and the myth of USIA all very likely are owed to Fulbright. He tried to kill USIA in 1972, but the death was slow. He introduced friction into the oversight and awareness of USIA, and “public diplomacy,” that increased over the decades. 

All of this is ironic if you know the purpose of Smith-Mundt: to counter Russian and Communist propaganda through open and truthful dialogue. Further adding to the irony, as noted above, the programs authorized by the act were to be quickly available to the U.S. press and Congress, and generally the public, to provide additional oversight over and awareness of the programs. Instead, one of the alleged deacons of “public diplomacy,” Fulbright, intentionally undermine the bulk of the affair by removing from public view the agency and its programs — he made U.S. public diplomacy less public to Americans. So much irony.

[Note: See also PolitiFact’s fact check on Smith-Mundt and “Obama [making] it legal for media outlets to purposely lie to the American public” which was published after this post went up.]