New docs reveal how DHS argued they have authority to censor 'misinformation'

EXCLUSIVE — New documents obtained through Freedom of Information Act (FOIA) requests show that the Department of Homeland Security (DHS) argued that the agency has authority in regulating "misinformation, disinformation, and malinformation" despite the disbandment of the agency's highly criticized Disinformation Governance Board.

In heavily redacted memos obtained by Americans for Prosperity Foundation (AFPF) and reviewed exclusively by Fox New Digital, the agency appeared to circulate ahead of the launch of the disinformation board justification that DHS has regulatory or statutory authority in the "the MDM Space" – short for "misinformation, disinformation, and malinformation.

But because DHS withheld all the substance in these memos that AFPF requested via FOIA and then by a lawsuit, the group says DHS is effectively relying on secret authorities for its work in the "MDM Space."

"If DHS believes it has the authority to police people’s online speech, it should be open with the public about what those authorities are," AFPF Director of Investigations Kevin Schmidt told Fox News Digital.

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Homeland Security Secretary Alejandro Mayorkas testifies before the House Judiciary Committee on July 26, 2023. (Screenshot)

"The idea that any agency with such vast political power believes it has the authority to determine what ideas count as good or true upsets the delicate balance of power established by our founding fathers," he said.

One memo is partially withheld under FOIA Exemption 7(E), which protects "techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations."

This is a screenshot of a DHS memo produced via FOIA titled "DHS Authorities in the MDM Space." (Americans for Prosperity Foundation)

The use of the exemption, AFPF says, is troubling because it suggests DHS is either overstating its authority in the "MDM Space" or it's abusing FOIA exemptions to avoid transparency.

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Homeland Security Secretary Alejandro Mayorkas testifies before the Senate Appropriations Committee on March 29, 2023, in Washington, D.C.

"Our Constitution was designed to protect people’s liberties from overreaching authorities. But the documents we’ve uncovered suggest that DHS believes it has overreaching authorities to regulate speech under the guise of countering misinformation even without a Disinformation Governance Board," Schmidt said.

According to the documents obtained by AFPF, the Disinformation Governance Board also began working on misinformation related to "irregular migration" and "Ukraine" before it was disbanded.

One memo produced from the FOIA request is dated Feb. 22, 2022, and titled "Ukraine MDM Playbook," but the content of that memo is redacted in the document produced to AFPF.

This is a screenshot of a redacted memo produced via FOIA titled "Ukraine MDM Playbook." (Americans for Prosperity Foundation)

Ken Cuccinelli, former deputy secretary of Homeland Security during the Trump administration, told Fox News Digital in a statement that "DHS does not have censorship authority."

"Making up a new government acronym – ‘MDM’ – does not change that legal fact," he said.

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This image shows Attorney General Merrick Garland. The Justice Department appealed to the Supreme Court a court order that stops the Biden administration from certain communication with social media platforms. (Chip Somodevilla / Getty Images / File)

Former DHS Assistant Secretary of Public Affairs Alexei Woltornist said "no amount of regulatory authority can undermine Constitutional rights."

"What is most concerning about this disclosure from DHS is they are using sophisticated law enforcement techniques against law-abiding citizens just for saying things the government does not like."

In August 2022, Homeland Security Secretary Alejandro Mayorkas terminated plans for the "disinformation board" after mounting backlash.

But in November 2022, leaked documents published by The Intercept revealed that while DHS disbanded the disinformation board, the agency was still working to combat disinformation on a range of topics, including COVID-19, vaccines, racial issues, the withdrawal of U.S. troops from Afghanistan and Ukraine aid.

According to a draft copy of its Quadrennial Homeland Security Review, which is DHS’ capstone strategy document, the agency intends to target disinformation on topics such as "the origins of the COVID-19 pandemic and the efficacy of COVID-19 vaccines, racial justice, U.S. withdrawal from Afghanistan, and the nature of U.S. support to Ukraine," The Intercept reported.

A lawsuit brought by two Republican attorneys general that alleges the Biden administration colluded with social media companies to censor user speech has so far resulted in a court order temporarily banning such activities by the government, ruling that such activities likely violated the First Amendment.

The Justice Department appealed the court order to the Supreme Court, arguing that the "unprecedented injunction installing the United States District Court for the Western District of Louisiana as the superintendent of the Executive Branch’s communications with and about social-media platforms – including senior White House officials’ speech addressing some of the most salient public issues of the day."

The Supreme Court is expected to weigh in as early as Friday.

Last week, House Republicans introduced legislation that would ban any federal dollars from helping to form any other such disinformation governance board in the future.

"Partisan government officials running a 'disinformation board' sounds ridiculous to most people, yet the Biden Administration tried to control the speech of American citizens," said bill co-author Rep. August Pfluger, R-Texas, in a statement.

The Department of Homeland Security did not return a request for comment by time of publication.

Brianna Herlihy is a politics writer for Fox News Digital.