Our country is facing extraordinary challenges. From the COVID-19 pandemic and its economic impact to racial tensions and protests following the killing of George Floyd, our national attention has been distracted from an aggressive threat that can’t be ignored: sustained attacks from Russia – and other adversaries such as China and Iran – to destroy our democracy, said panelists of the American Bar Association Annual Meeting Showcase Program, “Hacking Democracy: Elections and Beyond.”
Panelist Suzanne Spaulding, a former undersecretary at the Department of Homeland Security, spent much of 2016, the year of the nation’s last presidential election, working to protect the U.S. voting infrastructure. Beyond fighting against Russian propaganda efforts that were widely reported back then, Spaulding began to realize the long-term ramifications of the nefarious cyber efforts.
It’s not just our electoral system that’s being hacked. These campaigns are also eroding confidence in our overall system of government.
Operatives linked to Russia are working to exacerbate existing divisions within our country and amplify overall mistrust of democratic institutions, explained Spaulding, now a senior adviser at the Center for Strategic and International Studies.
One example comes from 2016 when anti-immigrant sentiment was stirred by a social media story about the alleged rape of a girl in Twin Falls, Idaho, by two Syrian refugees.
A Facebook post by a group called Secured Borders urged folks to get out into the streets and protest. “The government officials and prosecutors and judges who are covering up these crimes and putting refugees ahead of citizens need to be fired,” the post read.
But “Secured Borders was not a group of concerned Twin Falls, Idaho, citizens,” Spaulding said. “It was a fake affinity group created by the internet research agency in Russia.”
It was only after tweets and other posts pushed the narrative that the U.S. justice system is broken that authorities determined that the story was falsified and spread through fake accounts created by Russian trolls sitting in St. Petersburg, Russia.
According to Spaulding, the U.S. justice system is especially vulnerable to such misinformation campaigns, while also being a likely target of other digital threats, such as the hack and leak of judicial emails and draft opinions, as well as the alteration of court orders and other documents.
And, it’s not just Russia that is causing havoc – but other countries like China and Iran, too.
Fellow panelist Mariano-Florentino Cuéllar, who sits on the Supreme Court of California, said there are particular reasons why the courts are at risk. Chief among them is the enormous variation in size of their operations as well as the varying ways courts are run, structured and funded.
“There’s almost never going to be a one-size-fits-all solution that cuts across everything,” he said of the difficulty in crafting effective protections.
That said, Cuéllar pointed out three reforms that could bolster the courts. The first is to address systemic inequities related to class and race. The second is to find a more stable funding mechanism for all U.S. courts. And third, an emphasis on the resolution of judicial issues around retention, confirmations, elections and gubernatorial involvement.
Spaulding believes that better civic education is key to diminishing the effectiveness of the misinformation campaigns. “Without an informed and engaged citizenry, democracy will collapse,” she said. “That is the objective of our adversaries.”
The ABA House of Delegates will vote on two resolutions related to addressing the problem, one that deals with disinformation operations (300A) and another focused on fortifying civic education (300B).
The panel also included James McPherson, undersecretary of the U.S. Army. Harvey Rishikof, director of policy and cybersecurity research at the University of Maryland Applied Research Laboratory for Intelligence and Security, moderated the session.
“Hacking Democracy: Elections and Beyond” is sponsored by the ABA Cybersecurity Legal Task Force, the ABA Standing Committee on Law and National Security and the ABA Division for Public Education.