Photo: Diego M. Radzinschi. Photo: Diego M. Radzinschi/ALM.

Last week, Bloomberg reported that representatives from the Department of Homeland Security, the FBI and Office of the Director of National Intelligence met with tech companies to discuss improving collaboration around security efforts for the upcoming 2020 U.S. presidential election. 

The tech companies present—including Facebook, Twitter and Microsoft—reportedly discussed issues touching upon online disinformation campaigns backed by foreign governments.

While the U.S. government collaborating with private industry to protect elections is not a revolutionary concept, new media platforms like social media have been relatively untouched by the Federal Election Commission (FEC). This in turn could make defining the legal boundaries of a government collaboration more difficult.

Kate Belinski, a partner practicing political and election law at Ballard Spahr, indicated that the FEC has not implemented up-to-date regulations on social media platforms and how the rules apply to them.

"I think the potential pitfall that the [Department of Justice] would need to be looking out for and hopefully they are looking out for—is that whatever solution [the government] come[s] up with with private industry don't essentially undermine the existing campaign finance laws," Belinski said.

But how existing campaign finance laws would even apply to social media remains to be seen. Many of the advisory opinions the FEC has issued on the subject of cybersecurity tend to involve products, not platforms. For example, the FEC has previously sided against efforts by technology companies to provide free or reduced-cost cybersecurity solutions to political candidates at a reduced cost, citing violations of the Federal Election Campaign Act.

However, since any measures adopted by sites like Facebook or Twitter would ostensibly be taken across the board rather than directed towards specific political campaigns, those concerns may not pass muster.

Complicating matters further is timing, as the FEC awaits the appointment of new commissioners.

"At present, there is absolutely no mechanism for the FEC to clarify any of this because the FEC currently doesn't have a forum. So they can't issue advisory opinions, they can't proceed with the rule making that they already started in this area. They are basically at a standstill until new commissioners are appointed, and it's not clear when that is going to happen," Belinski said.

Still, not all of the legal concerns regarding government and private industry collaboration may fall directly under the domain of the FEC.

Efforts to remove or prevent the spread of disinformation, for instance, could theoretically stumble into problems with the First Amendment or even privacy concerns. However, Marc Lawrence-Apfelbaum, a senior advisor on foreign interference and online threats at Campaign Legal Center, thinks it unlikely.

"I don't think the purpose of these meetings is for the government to tell these companies what they should and shouldn't publish, and I don't think they'd have to reveal any information that would run afoul of any privacy rules," Lawrence-Apfelbaum said.

And technology companies most likely aren't eager to run in that direction either. Christopher Ballod, a partner focusing on data privacy and cybersecurity at Lewis Brisbois, thinks while there has been an effort by social media platforms to curb fake news stories, they could be reluctant to take on the responsibility of deciding what is and isn't news.

"If a lot of the media coverage they select… skews to one side of the [political] spectrum, are they going to be accused of favoritism? And then when they are on the outs politically, have they jeopardized their own existence?" he said.

The presence of those ongoing business interests may underline a need for more regulatory guidance moving forward, especially if election cyberthreats continue to persist.

Belinski said that while stakeholders like technology companies can provide the government with insights into the threats, there's a danger that the outcome winds up being shaped towards a bottom line.

"What you don't want is the stakeholders to takeover the mission and shape it to their best interest," Belinski said.