The CIA spoke and Dave Byers, the director of Arizona’s Administrative Office of the Courts, listened.
He listened as the CIA described how a Kremlin-sponsored organization that peddles in disinformation and spreads a false narrative poses a serious threat to Arizona courts and the justice system as a whole.
And he concluded that the court needs to act – proactively.
“We need to have a plan in Arizona for how we will deal with state-sponsored campaigns against the judicial system,” said Byers, who brought the issue to leaders in Arizona’s courts after hearing from the agents at a recent conference.
So to combat the spread, the Arizona Supreme Court on September 18 created a task force to study the effects that disinformation has on the court system.
The discussion Byers heard was based on “Beyond the Ballot: How the Kremlin Works to Undermine the U.S. Justice System,” a report created for the Center for Strategic & International Studies, which lists cases of targeted disinformation attacks carried out through social media.
The report was authored by Suzanne Spaulding, senior adviser at the Center for Strategic & International Studies. Spaulding came to the think-tank from the federal government, where she had most recently served as under Secretary at the Department of Homeland Security during the Obama administration, where she handled cyber security issues, including leading the teams who investigated Russian interference in the 2016 elections.
A report issued in January, 2017 outlined the methods used by the Russians to interfere in the election process. Experts agreed the Russians would be back to interfere in other upcoming elections, but Spaulding said she began to focus her investigations on other areas in society where the Kremlin might try and undermine the democratic process.
“I knew they’d been here longer than just the election cycle and weren’t going away, and I thought immediately of the justice system,” Spaulding said. “I hadn’t heard of any specific cases where the justice system was the target, but as we started investigating, we saw cases in other liberal democracies where they were targeting the justice system.”
From Russia to Iowa
Russian-affiliated bots, or software applications that run automated tasks over the internet, sprung up in misinformation cases in Iowa in 2018, Spaulding said, using social media to spread controversy about the suspect in the murder of Mollie Tibbets, a 20-year-old undergraduate student at the University of Iowa. The suspect, Cristhian Bahena Rivera, is an undocumented immigrant. Spaulding said the Russian bots exploited the immigrant-crimes narrative in that case.
The goal ultimately is to divide communities and stir division and cause further polarization, Byers said.
“These foreign actors are using social media to create a controversy to undermine people’s faith in the judicial system,” Byers said.
“One reason we don’t have as much unrest in this country is because of our justice system,” Byers said. “But if people don’t have a way to redress disputes, there is controversy. Russia wants people to not trust the justice system.”
Byers said he is particularly concerned with so-called deepfake videos and the harm they can do to a judge or justice. For example, he said, if the judge is speaking at an event or has a ruling that is recorded, the recording can be modified so well that average viewers won’t be able to discern that the video is fake. This technique, known as deepfake, produces highly convincing – but false – images and audio.
In June, the United States House Intelligence Committee held a hearing to examine the harm deepfake videos can do to a society, undermining judicial authority.
The order creating Arizona’s task force says, “there are ongoing strategic disinformation campaigns aimed at undermining the American justice system,” and adds “whether foreign or domestic, Arizona’s courts must be prepared to address attempts to discredit the justice system through the use of disinformation.”
“If the Kremlin can push the narrative that democracy is not all it’s cracked up to be, their citizens won’t long for democracy because the government can point to other countries and say, ‘No one else is any better,’” Spaulding said.
Local courts as targets
The National Center for State Courts is certainly concerned with bad actors, both foreign and domestic, attempting to influence the justice system, either by altering court documents or by targeting the courts themselves. William Raftery, senior knowledge and information services analyst with the center, said state and local courts are increasingly becoming the targets of disinformation and targeted attacks on the systems that keep courts humming.
Just this year, the National Center for State Courts learned of direct and indirect attacks on courts, including a hack of the Georgia state court website, resulting in the website being taken offline for hours. Officials in Georgia said no client data was compromised, but smaller counties and municipal courts run a real risk of having data compromised, Raftery said. He noted that courts are a repository of personal information that hackers could potentially target. And, given that small agencies often don’t have the budget to have impenetrable firewalls, courts have become a target of ransomware attacks.
Spaulding said judges need to be more aware of how they handle their data and keep their systems safe. For example, she said, judges need to make sure they have strong passwords and that their cyber security is up to date at the courthouse.
“Awareness is the first step,” she said.
As for individual judges, none have been the victim of a disinformation campaign or the subject of a deepfake video in Arizona, but Raftery cited a case in Idaho where a judge had his home address and phone number distributed after a series of Facebook attacks from the Kremlin-sponsored Internet Research Agency. The agency, according to the “Beyond the Ballot” report, spread misleading information about the case, resulting in the judge and prosecutors being targeted months after the case was resolved.
Aaron Nash, communications director for the Arizona Supreme Court and chair of the task force, said the judicial system can be targeted by people upset with rulings and who would change the official court records to reflect a contrary ruling. Nash said there have been no known instances of such blatant deception in Arizona.
“We don’t want to create a play book,” Nash said.
Judges in Arizona do have the potential to be targets during their retention campaigns, whether the criticism is warranted or not. Nash cautioned that there is a balancing act between free speech and actual harm, and Byers noted laws in Arizona haven’t quite caught up with ever changing technology such as the deepfake videos.
But the Electronic Frontier Foundation, a civil liberties organization focused on technology, data and privacy issues, argues against changing laws for very narrow instances, writing in an opinion piece: “While many specific uses of the technology (like specific uses of any technology) may be illegal or create liability, there is nothing inherently illegal about the technology itself. And existing legal restrictions should be enough to set right any injuries caused by malicious uses.”
The foundation notes existing laws should apply criminally, including harassment and stalking, slander and intellectual property issues, all which could reasonably apply to deepfake videos.
Spaulding said she is a strong supporter of judicial reform, because faith in the process is the key to democracy surviving.
“Judicial reform advocates are patriots. They work hard to ensure a fair process,” she said. “That’s not [Russian President Vladimir] Putin’s goal.”
Arizona’s task force will study how to offer “methods to help ensure accurate, verifiable facts and information remain available to the public.” The task force will review examples of disinformation and misleading campaigns targeting the justice system, consider local laws to help address the issue and stop the spread and will create a data network of public and private interests with which the courts can share information.
Spaulding said the Arizona task force is an encouraging sign, and said a public awareness campaign is the best first step. Along with emphasizing cyber security, Spaulding said judges need to understand their role in the process and ensuring they’re held to high standards.
“Putin exploits the narrative that judges are just politicians who wear robes,” Spaulding said. “That’s not a Russian idea. They’re just amplifying domestic voices.”