California Senator Richard Pan introduced in February 2018 Senate Bill 1424 Social Media Advisory Group, presently in committee process. The bill would,
… require the Attorney General, not later than April 1, 2019, to establish an advisory group consisting of at least one member of the Department of Justice, as well as Internet-based social media providers, civil liberties advocates, and First Amendment scholars to study the problem of the spread of false information through Internet-based social media platforms, and draft a model strategic plan for Internet-based social media platforms to use to mitigate this problem.
The bill in its present form, after amendments, mentions only “Internet-based social media platforms,” bringing to mind Internet giants such as Facebook and Google. However, an earlier version of the bill reveals what Senator Pan may have had in mind,
As used in this section, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.
The bill as amended simply requires a study. However, earlier versions of the bill specify requirements via legislation, giving a hint of what might eventually arise from the proposed “advisory group.” Here are a few requirements of the bill prior to amendments: How, and on what basis, the social media Internet website determines what content to display to the user; whether the social media Internet website enables other parties to influence, through payment or the use of automated accounts, what content is displayed to a user; whether the social media Internet website utilizes factcheckers.
Small businesses, startups, as well as bloggers of every type with a presence on the Internet should consider themselves in the crosshairs of Senate Bill 1424. Senator Pan seems to be seizing an opportunity offered by a crisis du jour, fake news, to regulate what is said on the Internet.
Small businesses and startups often depend on an Internet presence to acquaint the public with their products or services. What they say about their products or services is already covered by several rules to prevent false claims. The Federal Trade Commission summarizes responsibilities of businesses as follows: “Under the law, claims in advertisements must be truthful, cannot be deceptive or unfair, and must be evidence-based. For some specialized products or services, additional rules may apply.” Additional rules include claims that target children, involve endorsements, pertain to environmental or health products, indicate a product was made in the U.S.A., entail telemarketing or online advertising.
Assuming that fake news is described by the proposed “advisory group” as not evidence-based (although who knows what the group might come up with by way of description), what would be the purpose of Senator Pan’s idea of adding to what is already in the FTC’s books?
While for the most part businesses offer products or services for a price or a fee, non-profits, columnists, bloggers, activists, candidates running for office, political observers offer arguments and ideas. Determining whether such arguments and ideas are patently false, i.e. whether they are fake news, seems to be skating on thin ice. At what point Senator Pan’s proposal crosses the line from attempting to keep untruths from spreading to regulating arguments and ideas. At what point does Senator Pan’s proposal become a violation of the U.S. Constitution First Amendment?
Invent a Crisis Then Milk It
Never let a crisis go to waste seems to be in every legislator’s catechism. We have lived with all types of snake oil since the beginning of time. Caveat emptor – buyer beware – used to be the rule of the marketplace. However, little by little, consumers of products, ideas, and news have been increasingly deemed incapable of determining what is snake oil and what is not. Some rules can be beneficial, such as requiring evidence-based label information on products. But what is an evidence-based idea?
When our Declaration of Independence stated that all men are created equal and endowed with certain unalienable rights, would Senator Pan object to this phrase as fake news, since all men at that time were not being really deemed to be created equally? Would Senator Pan understand the magnitude of that phrase as a new idea upon which the Founding Fathers intended to build a new nation? Or would Senator Pan try to pass a law preventing the spread of those words?
Alexis de Tocqueville, of Democracy in America fame, offered the following image,
… the sovereign power extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through to go beyond the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.
Are we experiencing such pall draping our nation, or have we even gone beyond it?