The Murthy Arguments Went So Poorly For The States That The FBI Feels Comfortable Talking To Social Media Companies Again

How badly did the arguments in the Murthy v. Missouri case go for the states last week? So badly that the FBI has already re-established communications with social media companies that had stopped in light of the earlier rulings in that case.

The FBI has resumed some of its efforts to share information with some American tech companies about foreign propagandists using their platforms after it ceased contact for more than half a year, multiple people familiar with the matter told NBC News.

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. It was put on hold this summer in the wake of a lawsuit that accused the U.S. government of improperly pressuring tech companies about how to moderate their sitesand an aggressive inquisition from the House Judiciary Committee and its chair, Jim Jordan, R-Ohio.

This is important for a few reasons. First, many people have widely misunderstood why and how the FBI was in touch with the social media companies throughout this discussion. I tend to agree with many people that contact between private companies and the FBI should be minimal and companies should always be wary of what the FBI wants.

But, there are times that it does make sense for the FBI to be in communication, which the oral arguments made clear.

Justice Amy Coney Barrett highlighted that there clearly are times when the FBI should be in contact with the platforms. Even the lawyer for the states, Louisiana’s Solicitor General Benjamin Aguiñaga, admitted that there were clearly cases where it would make sense for the FBI to send information to platforms, such as when there is a danger to someone, or a threat.

JUSTICE BARRETT: So the FBI can’t make –do you know how often the FBI makes those kinds of calls?

MR. AGUINAGA: And that’s why –and that’s why I have backup answer, Your Honor, which is, if you think there needs to be more, the FBI absolutely can identify certain troubling situations like that for the platforms and let the platforms take action.

But, thanks to the rulings in the lower courts, the FBI had stopped any kind of contact along those lines, for fear of violating the injunction. This is from last November:

The FBI told the House Judiciary Committee that, since the court rulings, the bureau had discovered foreign influence campaigns on social media platforms but in some cases did not inform the companies about them because they were hamstrung by the new legal oversight, according to a congressional official.

Again, it’s true that how close the FBI is with companies matters. We don’t want another scenario like with AT&T and federal intelligence apparatus, where they literally had employees embedded with each other. But, straight-up information sharing on foreign threats certainly seems reasonable.

And this is why it would still be nice if the Supreme Court drew the line in the proper place, distinguishing general information sharing about such things, and any sort of coerced pressure or threats directed at the social media companies regarding their policies or decision-making.