How poorly did the arguments in the Murthy v. Missouri case go for the states last week? So much so that the FBI has already re-established communications with social media companies that had ceased in light of the earlier rulings in the case.
The FBI has resumed efforts to share information with certain American tech companies about foreign propagandists using their platforms after it ceased contact for more than half a year. The program, established during the Trump administration, briefed tech giants like Microsoft, Google, and Meta when the U.S. intelligence community found evidence of covert influence operations using their products to mislead Americans.
Contact between private companies and the FBI should generally be minimal, and companies should always be wary of what the FBI wants. However, there are circumstances where this communication is necessary, as the oral arguments have made clear. Justice Amy Coney Barrett highlighted that there clearly are times when the FBI should be in contact with the platforms, with even the lawyer for the states, Louisiana’s Solicitor General Benjamin Aguiñaga, admitting that there were clearly cases where it would make sense for the FBI to share information with platforms, such as when there is a danger to someone, or a threat.
Because of the lower courts’ rulings, the FBI halted all contact along those lines, for fear of violating the injunction. That being said, the proximity between the FBI and these companies is noteworthy. An undesirable scenario similar to AT&T and the federal intelligence apparatus, where they had employees embedded with each other, should be avoided. Straight-up information sharing about foreign threats, however, seems reasonable.
Distinguishing between general information sharing and any sort of coerced pressure or threats directed at social media companies regarding their policies or decision-making would be helpful when setting boundaries. These recent events underscore the importance of that distinction, as highlighted in the seminal case, Murthy v. Missouri.