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In light of Russian meddling in the 2016 presidential elections and clandestine Democratic efforts to use deceptive tactics in the recent Alabama senate race, it is clear that social media as a vehicle of deceptive electioneering tactics is on the rise. As a NYT article describes,

But however modest, the influence effort in Alabama may be a sign of things to come. Campaign veterans in both parties fear the Russian example may set off a race to the bottom, in which candidates choose social media manipulation because they fear their opponents will.

Given all the Mueller indictments, the Russian election meddling/potential collusion was illegal. However, given the above NYT article, this domestic deception was not illegal.

So, my question: Is this kind of deceptive electioneering, foreign or domestic, explicitly illegal? If not, is Congress considering legislation to make it illegal?

To be absolutely clear, as I wrote in a comment below, and as is written in the NYT article, the Alabama example had exactly no significant effect on the election. Regardless, my question is unconcerned with the relative significance of either voter-influencing campaign, nor is it concerned with debating which is more condemnable. Instead, I draw an equivalence only insofar as this: despite key differences in funding, source, and scope, these two examples demonstrate a common use of social media to deceive voters and suggest a growing pattern may emerge.

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    Why three downvotes? – Daniel Jan 31 at 21:20
  • Not a downvoter, but this question seems to be trying to make a false-equivalency, even if unintentionally, leading to comments trying to argue about that equivalency (even trying to make the absurd argument this incident is somehow a much bigger issue). There might be some area for improvement around that. – CrackpotCrocodile Feb 1 at 10:03
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So, my question: Is this kind of deceptive electioneering, foreign or domestic, explicitly illegal? If not, is Congress considering legislation to make it illegal?

On the contrary, unless you could prove that it was maliciously deceptive. I.e. that someone knew it was false and still engaged in it, it would be covered by the first amendment in any domestic case. I.e. the first amendment protects opinionated speech, particularly about public figures. So if someone posts information that they believe to be true or believe that it might be true, that's protected speech. Malice is a deliberately high bar in such cases.

Among other things, the actual malice standard allows news media to report on stories where allegations may be true but are not yet proven (or disproved). Without it, the media might find that they engaged in slander or libel after the fact.

In terms of foreign participation, that is barred by campaign finance law. In particular, by the McCain-Feingold bill from 2002, although it was barred before that as well. Source: ABA Legal Fact Check: When Is It Illegal for Foreign Nationals to Influence U.S. Elections? True/false does not matter in that context. Foreign actors may not participate in the election, even to make true statements. Of course, in this example, the foreign agents were pretending to be domestic participants -- that's the deception.

The Logan Act outlaws interference with diplomacy with foreign governments, not foreign interference in domestic affairs. It would be better described as banning domestic interference in foreign affairs. There are also arguments that the Logan Act is unconstitutional or dead letter law. But that doesn't matter here, as the Logan Act doesn't ban foreign governments from doing anything.

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Setting aside the thorny issue of the relative efficacy of the two campaigns the key difference here is that the Russian moves to influence the election were the actions of a foreign power. I think most would agree that another country attempting to covertly interfere with an internal political process is in a whole different league of concern.

From a legal standpoint the 2016 Russian interference is of interest because of the collusion angle - this could be argued to be a violation of the Logan Act which prohibits negotiation by unauthorized persons with foreign governments having a dispute with the United States.

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    Is there anything that prohibits this kind of domestic interference? – Daniel Feb 1 at 12:22
  • The Logan Act is a dead law, and is never applied. Proof: former Foreign Secretaries who kept talking to foreign powers after their resignaction. – Sjoerd Feb 1 at 16:35
  • It's never actually been used in a prosecution IIRC - but it does remain on the books, and departing members of congress were still being admonished to follow it as of 2006 and in 2015 the Congressional Research Service stated that it "remained law" – motosubatsu Feb 1 at 16:46
  • @Sjoerd Just because a law has never been applied doesn't mean it's "dead," it could just mean nobody has been foolish enough to break it and get caught before. – CrackpotCrocodile Feb 1 at 21:25

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