National: Cyber Interference in Elections and Federal Agency Action | Harvard Law Review

Pop quiz: which part of the federal government is tasked with preventing cyber interference in our elections? Congress has refused to say. We have reached a point of a significant gap between an important federal need and existing federal power. And in the absence of that federal power, federal agencies have stepped into the gap and extended their authority into domains unanticipated by Congress. Of course, there is clear statutory guidance for some aspects of protecting election integrity. We can think about preventing campaign interference in our elections. Portions of that job fall squarely within the domain of the Federal Elections Commission, which enforces campaign finance laws. We can also think about prosecution or punishment of those who engage in either foreign campaign interference, like the Justice Department’s recent criminal indictment of a Russian woman with interference in the 2018 midterm elections, or foreign cyber interference, like actions from the Obama and Trump administrations to sanction those who interfere with election systems in the United States. But that’s focused on punishing election interference that has already occurred.

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