Suffolk Lawyer

 

 

Social media’s ubiquitous presence in the lives of many Americans has transformed the way government communicates and interacts with the citizenry.  Nearly every politician, from the President of the United States to mayors of America’s smallest towns, has a Twitter account.  Governments increasingly rely on social media to engage the public, providing information on emergency response and disaster relief to government services and events.  A recent report from the U.S. Government Accountability Office (“GAO”), however, considers when the federal government’s use of social media constitutes impermissible public advocacy in support of an agency’s legislative agenda.  The report raises interesting questions regarding what constitutes government “propaganda” or lobbying efforts in the Internet age.

On December 14, 2015, in response to a request from Senator James M. Inhofe, Chairman of the Senate Committee on Environment and Public Works, the GAO issued a report finding that the Environmental Protection Agency (“EPA”) violated propaganda and anti-lobbying provisions of federal appropriations laws through its use of social media in association with the EPA’s efforts to define “Waters of the United States” under the Clean Water Act (“CWA”).

Federal appropriations bills passed by Congress and signed into law by the President fund the government, including the EPA, and contain any number of restrictions on how those funds may be spent.  Section 718 of the Financial Services and General Government Appropriations Act, for instance, prohibits any appropriation from being used directly or indirectly for “publicity or propaganda purposes” not authorized by Congress.  Section 715 of the Act prohibits indirect or “grassroots” lobbying in support of, or in opposition to, pending legislation.  Section 715 is violated where there is evidence of a clear appeal by an agency to the public to contact Congress.

In March 2014, the EPA released a proposed rule broadening the definition of waters protected under the CWA.  The rule, more popularly referred to as the “Waters of the U.S.” or “WOTUS” rule, expanded the definition to include, among other things, tributaries, adjacent waters, territorial seas, and interstate waters.  The EPA used social media platforms in connection with the WOTUS rulemaking to, by its own admission, clarify issues concerning the proposed rule, explain the benefits of the proposed rule, engage the public, and correct what it viewed as misinformation regarding the rule.  Although the GAO found that certain social media initiatives were lawful, it concluded that the EPA violated federal propaganda and lobbying provisions in two instances.

First, in September 2014, the EPA used Thunderclap, a new “crowd speaking” tool that allows a single message to be shared across multiple social media platforms.   The GAO focused on the fact that the EPA’s Thunderclap message did not identify the Agency as its author.  As the GAO noted, the “critical element of covert propaganda is the agency’s concealment from the target audience of its role in creating the material.”  While the EPA’s authorship was apparent to anyone who chose to follow the EPA’s Thunderclap campaign page, the technology’s force multiplier effect disseminates the message to the followers’ entire social media network.  To that network of contacts, it appeared that their Facebook friend, for instance, independently shared their support for the EPA’s initiative.  The EPA’s message is estimated to have reached upwards of 1.8 million people.

Second, the EPA’s blog associated with WOTUS linked to various third-party advocacy organizations.  The pages to which the EPA linked contained calls for action, encouraging and enabling visitors to contact members of Congress regarding WOTUS-related legislation.  According to the GAO, this violated Section 715’s prohibition against grass-roots lobbying.

The EPA ultimately finalized and published the regulation on June 29, 2015, but cannot currently enforce the rule after the U.S. Court of Appeals for the Sixth Circuit issued a temporary stay.  Dozens of states and business lobbies have brought suit, arguing that the rule represents federal overreach.  The EPA, the Army Corps of Engineers, and the White House maintain that the rule is necessary to protect vulnerable waterways and drinking water.  President Obama has promised to veto any legislation overturning the definition.

The GAO report will likely not impact the pending litigation, nor will it prevent the WOTUS rule from taking effect.  The GAO report, however, does highlight how technology impacts the way in which the Executive and Legislative branches of our government interact with one another and the public, and where one draws the line between advocacy and propaganda in the Internet age.

Fifty years ago, federal agencies could not communicate their position on legislation to the American people with a few clicks of a computer mouse.  Why did the EPA’s actions here cross the line?   It is common practice for a President to spend weeks “stumping” across the country for the policies objectives and legislative proposals contained in his State of the Union address.  Even treating the Presidential bully-pulpit as sui generis and exempted from the grass-roots lobbying restrictions, organizations cannot necessarily control social media campaigns, which, once released, cannot be controlled in the same way as traditional messaging or advocacy.  The answer may turn on the agency’s intent: for instance, whether the agency purposefully used Thunderclap to disguise the source of the message.  We should not be surprised if future appropriations bills may more specifically define how agencies can and cannot use social media.

As was previously reported in the New York Times, the GAO’s finding is rare but not completely without precedent.  During the George W. Bush administration, for instance, the GAO concluded that the Department of Education had violated the law in 2005 when it hired a public relations firm to covertly promote the No Child Left Behind Act.  Federal agencies will need to pay closer attention to how they use social media in connection with pending legislation.  To the extent that state and local governments have similar restrictions, those agencies and instrumentalities must also take warning.

Jonathan (“Jack”) Harrington is Counsel at Campolo, Middleton & McCormick, LLP in Ronkonkoma.  His practice includes regulatory, litigation, and international matters.