I’ve been thinking a lot about how the massive amount of disinformation that is being disseminated online might affect the judicial system and, specifically, how it could affect criminal trials. I’ve also been thinking about how criminal law might be used to combat disinformation given that at least some of the false information is protected by the First Amendment. What has happened on a large scale is that foreign governments (and many others) have created social media content that appears to be created by American organizations — in many cases organizations that don’t exist — and then the information takes off and gets taken as gospel by various factions in our country. The purpose is to sow dissent. Now, there is a specific focus on undermining faith in the United States justice system.

The ‘Russia Today’ Case

The Department of Justice’s recent case against RT (formerly Russia Today) operatives might shed some light on how the Department of Justice (DOJ) might combat foreign countries that are trying to interfere and fracture American public opinion. The indictment is absolutely fascinating. And it has a Tennessee connection. Russian nationals Kostiantyn Kalashnikov and Elena Afanasyeva are alleged to have conspired to violate the Foreign Agents Registration Act (FARA) and conspiracy to commit money laundering.

The indictment alleges employees of Russian state-controlled outlet RT spent $10 million to publish RT-curated content across social media, using a Tennessee content creation company.1

The indictment sets out engrossing detail about the technical aspects of the investigation, including computer forensics and analysis of IP addresses that were used in communications. Unfortunately, the painstaking detail of the investigation also shows how difficult it is to figure out who is posting this disinformation.

The DOJ press release describes the scheme:

RT, formerly known as Russia Today, is a state-controlled media outlet funded and directed by the Government of Russia. Over at least the past year, RT and its employees, including Kalashnikov and Afanasyeva, deployed nearly $10 million to covertly finance and direct a Tennessee-based online content creation company . . . In turn, U.S. Company-1 published English-language videos on multiple social media channels, including TikTok, Instagram, X and YouTube. Since publicly launching in or about November 2023, U.S. Company-1 has posted nearly 2,000 videos that have garnered more than 16 million views on YouTube alone. Many of the videos posted by U.S. Company-1 contain commentary on events and issues in the U.S., such as immigration, inflation and other topics related to domestic and foreign policy.2

Most similar conduct is very difficult to prosecute because most of these fake accounts are created outside the country and do not have American companies.

The legal theory for prosecution in this case is that the defendants conspired to act as agents of foreign principals without registering with the attorney general, in violation of Title 22, United States Code, Sections 612 and 618.

The indictment also charges money laundering in that the financial transactions were designed to promote the unlawful activity of acting as a foreign agent without registering. The focus is obviously not on the content of the postings but on the fact that it was ultimately created by foreign agents without registering. It will be interesting to watch what comes out as the case proceeds.

Other Disinformation Schemes Targeting the Judicial System

It was well documented that Russian bots and troll accounts were used to try to discredit the 2016 Russian interference investigation conducted by Special Counsel Robert Mueller. Social media accounts controlled by Russians also launched a disinformation campaign around the trial of Maria Butina, a Russian operative accused of infiltrating U.S. political organizations.3 But the real effort is to undermine faith in the system generally. For further explanation of how the foreign false propaganda is created, and incredible examples, I recommend a report called “Beyond the Ballot Box: How the Kremlin Works to Undermine the U.S. Justice System.”4  The authors conclude that fake Russian posts seek to undermine the United States justice system in four ways. The messages are designed to appeal to different political persuasions. The themes are that the United States justice system (1) covers up crimes committed by immigrants, (2) operationalizes the institutionally racist and corrupt police state, (3) directly supports and enables corporate corruption, and (4) is a tool of the political elite.5

The report details the large-scale efforts to try to undermine faith in the justice system by fracturing public perception on both the left and the right. While these issues are certainly worthy of discussion, the social media postings are rife with wild claims that are simply made up. After being posted by the foreign agents, this information gets widely shared by people who likely don’t know the information is false.

What Does it Mean for Law Practice?

The scariest thing to me is the fact that a lot of people are willing to steadfastly believe demonstrably false assertions. And sometimes it seems like the more outrageously false, the more people dig in to believe it. If just the videos posted in the pending RT case garnered 16 million views, the breadth of this influence is hard to imagine. The videos might be fake, but the people who are consuming this content are real people who might be on our next jury. How does that affect a criminal trial? Are more potential jurors going to come into the box believing that the system is rigged in favor of one side or the other?

Screening

Obviously, the first issue is to try to weed out potential jurors who have been poisoned by disinformation. That is nothing new. Both prosecution and defense lawyers have always tried to figure out ways to learn if jurors have preconceptions that would prejudice them one way or another. I’ve noticed that prosecutors always want to know whether jurors are members of any groups that find the government illegitimate. But you can only find out so much by asking that direct question. And it is the more subtle prejudices that might affect the jurors that are more difficult to weed out.

Use of Questionnaires

Practitioners might want to consider the use of written jury questionnaires that are carefully designed to help identify beliefs that would cause concern for either party and what sources of information the potential jurors might have. Research indicates that potential jurors are often more open when answering a written questionnaire. The potential that a juror has been affected by intentionally false posts should make us consider asking for written jury questionnaires more often. In the future, when I move for a written questionnaire, I will cite these reports regarding attempts to undermine belief in the system. The issue of using a questionnaire is beyond the scope of this column, but my point is that we should think about using them more.

Jury Research

Of course, consistent with all ethical limitations, counsel will want to look to see if a juror has directly participated in sharing inflammatory material about the system.6

It’s hard to determine how this content could affect trials. Prosecutors certainly wouldn’t want a group of people who don’t believe in the justice system. On the other hand, defense counsel would also be wary of jurors who have been told about how the justice system covers up crimes. And I wonder whether it is going to become more difficult to get unanimous juries. Certainly, the polarization is not caused solely by fake social media, but we need to consider these topics as a profession and encourage further research.

Conclusion

I’m sorry to write about such a depressing topic this time. But disinformation is something we must consider if we want to make sure we do the best job for our clients at trial and more broadly try to protect the jury trial. |||

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WADE DAVIES is the managing partner at Ritchie, Davies, Johnson & Stovall PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.                    

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NOTES
1. United States v. Kalashnikov and Afanasyeva, S.D.N.Y. No. 24 CR 519, www.justice.gov/opa/media/1366266/dl.
2. U.S. Department of Justice, Office of Public Affairs, “Two RT Employees Indicted for Covertly Funding and Directing U.S. Company that Published Thousands of Videos in Furtherance of Russian Interests,” www.justice.gov/opa/pr/two-rt-employees-indicted-covertly-funding-and-directing-us-company-published-thousands, Sept. 4, 2024.
3. Megan Specia, New York Times, “Russian ‘Flash Mob’ Urges U.S. to Free Maria Butina,” July 20, 2018, www.nytimes.com/2018/07/20/world/europe/russia-social-media-maria-butina.html.
4. Suzanne Spaulding, Devi Nair & Arthur Nelson, Beyond the Ballot Box: How the Kremlin Works to Undermine the U.S. Justice System, Center for Strategic and International Studies, Defending Democratic Institutions Project, 2019, www.csis.org/analysis/beyond-ballot-how-kremlin-works-undermine-us-justice-system. I have had the privilege of listening to Suzanne Spaulding on the American College of Trial Lawyers podcast (www.podbean.com/ew/pb-j2kwg-16785aa), and now in person, and I highly recommend looking at the material in this report and on the CSIS site. Among many prior positions, Spaulding served as Under Secretary for the National Protection and Programs Directorate at the Department of Homeland Security (DHS) which has since become the Cybersecurity and Infrastructure Security Agency (CISA).
5. Id. at 2.
6. See, e.g., John G. Browning, Voir Dire Becomes Voir Google: Ethical Concerns of 21st Century Jury Selection, American Bar Association, 2019, www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2016_17/winter/voir_dire_becomes_voir_google_ethical_concerns_of_21st_century_jury_selection/.