California Gov't Thinks It Might Be Able To Regulate Fake News Sometime Before 2020

from the JUST-STOP dept

Good lord. Somehow recent overseas efforts to regulate fake news, hate speech, etc. haven't managed to persuade US government officials to think two or three times before introducing the same sort of legislation. Whatever hasn't been turned into blatant vehicles for government censorship has produced a steady stream of embarrassing collateral damage.

In the United States, the First Amendment protects a wide variety of unpopular speech, but that isn't stopping California legislators from trying to govern their way through the "fake news" problem. Eric Goldman reports an effort has been started to put the state in the business of directly regulating online speech.

The bill has been heavily edited since its introduction in February. At that point, the Cali legislature wanted to compel social media services to inform users what steps it was taking to protect them from "fake news" as defined by the California government, if and when the government ever gets around to defining exactly what it thinks "fake news" is.

(a)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, e-mail, online services or accounts, or Internet Web site profiles or locations. (b)Any person who operates a social media Internet Web site with a physical presence in California shall prominently display a link on the site to a disclosure informing users, in plain language, of all of the following: (1)How, and on what basis, the social media Internet Web site determines what content to display to the user, the order in which content is displayed, and the format in which content is displayed. (2) Whether the social media Internet Web site enables other parties to influence, through payment or the use of automated accounts, what content is displayed to a user, the order in which content is displayed, or the format in which content is displayed, and specifically how such influence may be exerted by the other party on the content displayed. (3)Whether the social media Internet Web site allows the user to alter the settings that determine what content is displayed to the user, the order in which the content is displayed, or the format in which content is displayed, and how the user can alter these settings. (4)Whether the social media Internet Web site utilizes factcheckers to verify the accuracy of news stories. If the social media Internet Web site utilizes factcheckers for that purpose, the disclosure shall state both of the following: (A)What policies and practices the factcheckers use to determine whether news stories are accurate. (B)What the social media Internet Web site does with content that its factcheckers determine is not accurate. (5)The social media Internet Web site’s strategic plan to mitigate the spread of false information.

Fortunately, all of that language has been stricken from the bill. But what it's replaced with doesn't indicate the legislature has decided to lift the heavy hand of regulation. Instead, the new language has the unmistakably tinny sound of a can being kicked down the road.

The Attorney General shall, not later than April 1, 2019, establish an advisory group consisting of at least one member of the Department of Justice, Internet-based social media providers, civil liberties advocates, and First Amendment scholars, to do all of the following: (a) Study the problem of the spread of false information through Internet-based social media platforms. (b) Draft a model strategic plan for Internet-based social media platforms to use to mitigate the spread of false information through their platforms. (c) Draft potential legislation for mitigating the spread of false information through social media, if the advisory group deems it appropriate. The advisory group may consult with the Legislative Counsel and the California Law Revision Commission, among others, for this purpose. (d) Not later than December 31, 2019, present the results of the study, the model strategic plan, and the proposed legislation, if any, to the Legislature, pursuant to Section 9795 of the Government Code, and to the Assembly and Senate Committees on Judiciary.

It's basically an 18-month backburner with a slim chance of an Attorney General shrug being delivered to the legislature before everyone starts celebrating the beginning of a new decade. I say "slim chance" because it's unlikely the Attorney General will decide there's nothing the government (a) can do about it or (b) should do about it. The latent desire to govern speech never really goes away, no matter how many tax dollars are spent defending constitutionally-indefensible bills in state and federal courts. "Shall make no law," indeed.

Given the ultra-broad definition of "social media" -- which could encompass everything from Facebook to SMS messages -- the chances of a narrow definition of "fake news" seems unlikely. What this would do is force services to add personnel/algorithms to monitor "fake news" and otherwise expend resources to aid the California government's windmill tilts. Any efforts taken would be judged as "fake news" by those who saw their favorite news sources flagged as questionable. The added expense would do nothing to improve the spread of factual information and would push people further into their preferred echo chambers. Smaller services without the resources to comply would exit California or simply cease to exist.

"Fake news" is a no-win situation. The problem is far too many people think the government they don't trust should step in and fix the news they don't trust. And that mindset is only compounded in those who are employees of the government, who tend to find speech critical of them and their jobs the least trustworthy. It's broken, but for the love of [insert preferred deity here], let's not try to fix it this way.

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Filed Under: california, fake news, free speech, regulation, social media