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

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Anonymous Coward says:

No, problem is too many liars lying to influence "politics", which

always turns out to mean “leftists”, “liberals”, and especially corporatists who control giant organizations geared to targeted propaganda gain while *”conservatives” lose.* It’s a fact that anyone even half honest is hampered in any discussion. If your opponent is free to make up and toss in any and every assertion that’s useful, honest people just get worn out battling phantoms. — Evidence is shown here at Techdirt every day. Techdirt buys pixels by the million, and it’s more than I can to do counter it.

> 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.

Exactly. But you omit to specify that “leftists” / corporatists largely control the gov’t AND “news”. The Public gets lies from an essentially unified front, and sees no opposition, so more or less believes it. — Until a barking mad story like the poisoned Skripals in Britain, gov’t blaming Russia, and not a bit of truth to it. THEN even the most doltish suspect there IS a “Them” controlling nearly all of “both” sides.

Stephen T. Stone (profile) says:

Re: Re:

I would love to take this seriously. But a (nominally) conservative candidate won the 2016 presidential election and helped usher in a wave of hatred toward “liberal media” the likes of which has never before been seen in my lifetime.

And if you take issue with corporatists, remind yourself that they are often conservative as well (I don’t see Jeff Bezos aching to give away his fortune for the sake of solving homelessness), and they will play both sides to get what they want—although conservatives will most often give the corporations what they want because the politicians will be paid back in campaign donations.

If’n you want to whine about liberals, whine about the system instead. You will get nowhere by trying to blame the sociopolitical rot in the United States on one party or the other.

Anonymous Coward says:

Re: Re: Re:

You’re assuming blue has the mental capacity or desire to actually see the system fixed.

As long as he thinks copyright and the corporations that profit off them might be mildly under threat there is no cock he will not suck to see them further empowered, while blaming everyone else for the corporatism he himself enjoys.


Re: Re: Cry me a river.

You are simply engaging in victim blaming here. A solid majority of media outlets turned into shameless partisan rags during the campaign and continue to act as such.

They ratcheted up the mindless hysterics during the campaign and seem to have painted themselves into a corner. They can’t back off without making it look more obvious that they are biased fools.

The real problem is that they aren’t the sole gatekeepers anymore. It’s easy to find contradictory first hand accounts and the news media of the rest of the planet is at your fingertips thanks to the Internet and Google translate.

The rest of the planet can fact check the American media, clue you in on things the American media is trying to ignore, or do a better job of covering something they are “kind of” acknowledging.

A cabal of diverse “friends” on FB is a great aggregator.

Anonymous Coward says:

Re: No, problem is too many liars lying to influence "politics", which

Techdirt’s commenters have a (by U.S. standards) left-leaning bias in general. I don’t agree with it, but at least the TD writers admit that being censorious of anyone you don’t like is just a slippery slope and will come around to bite you in the ass.

So long as that’s the message the TD peeps put forth, all the commenters can say that there is no left-leaning bias in the U.S. mainstream media until they’re blue in the face and I don’t care if they disagree with me.

I believe what I believe and you’re free to say I’m an idiot, and I’ll probably ignore you if you put forth no good talking points to convince me otherwise.

That’s the beauty of free speech online for ya. I just want this to last.

Wendy Cockcroft (user link) says:

Re: Re: No, problem is too many liars lying to influence "politics", which

All o’ that depends on what we mean by “left.”

Does “left” mean “not Republican?”

Does “left” mean “has a social conscience?”

Does “left mean “criticises capitalist excesses, particularly where they infringe on the rights of human beings?”

The actual left wants to cede control of capitalism itself to “the people,” by which it means federal government, in order to implement central planning, which basically means “rule by remote control.”

Liberal progressives (radical edition) are the ones who blather on about cultural appropriation and micro-aggression, etc., in the name of not being a jerk to protected classes of people.

Conservatives want to maintain traditional values.

Libertarians want to reduce the scope of government to defence of the realm and of private property.

Right-wingers want to grab all the money and stamp on anyone who’s not like them and doesn’t share their (allgeged) values.

Got that? Good.

Christenson says:

A golden opportunity...

Once upon a time there was this wonderful internet law… CDA section 230, which said that just hosting some content doesn’t make you responsible for it.

We know that banning things doesn’t work…we’ve seen it with sex trafficking, drugs, alcohol, etc, etc.

What if we got a miracle from the California AG? A few wise words, that applied widely, would help us all improve our evaluation of the bits that come through the interwebz?

What would those words be???

Anonymous Coward says:

So the state that’s the poster-boy of mismanagement, insane and misguided regulations, misguided DEregulation, and otherwise utter ineptitude wants to regulate what they’re legally barred from regulating. It’s sadly unsurprising, but no less concerning.

We seriously need to make the legislative process automatically include the judicial branch before it passes to the governor for signature or veto. If a panel of lawyers and judges refuse to sign off on the constitutionality of a bill then it’s immediately dead. If they tentatively pass it, then it goes to the governor. The way we have it now infringes on the rights until someone that can afford to challenge it can do so. This should not stand.

John says:

Quick question about the first amendment.

I know that it prevents government regulation of speech (however the courts define that,) but does it prevent government regulation of lying?

From my understanding the courts have defined certain boundaries that the 1st amendment does not cover. The shouting fire in a crowded theatre is one example. I guess purposely misrepresenting something for financial gain is another. And I know there are laws preventing individuals from talking about warrants, disclosing insider trading details, and the like.

Wouldn’t deliberately spreading a lie by social media also fall outside the constraints of the first amendment?

Stephen T. Stone (profile) says:

Re: Re:

First thing’s first: Please stop using the “shouting ‘fire’ in a crowded theatre” example. It does you no favors in these arguments. And with that out of the way…

I do not see how someone spreading a lie, knowing or not, should be an offense that the government should punish. Such a move would run contrary to the generalized protections of the First Amendment and fundamentally change the idea of liability for speech. Answer this if you want to test the limits of this idea: What context would the lie need to exist in, and exactly how many people would need to spread the lie in some way, before the government could prosecute someone for telling it? Bonus question: Who, exactly, would the government prosecute for spreading a lie over social media? And for extra credit: If someone repeats a lie in their own words instead of someone else’s, what should the government do about that someone telling someone else’s lie in a different way?

Wendy Cockcroft (user link) says:

Re: Re: Re: Re:

Methinks the word you’re looking for is "fraud."

Fraud Law and Legal Definition:

Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage.
Fraud Law and Legal Definition | USLegal, Inc.

Due to that part about "resulting injury or damage," we can’t use fraud to prosecute fake news purveyors… or could we? Is lying your rear off constitutionally protected speech, when the idea is to induce people to act in ways that injure or damage them?

Thad (user link) says:

Re: Re:

There are specific, clearly-defined types of false statements of fact that are exempt from First Amendment protections. They include (but are not limited to) perjury, lying to the FBI, defamation, fraud, and false advertising.

However, it’s not really correct to say that lies in general are not protected by the First Amendment. Generally speaking, speech is protected, and the exceptions are specific and well-defined; that goes for all kinds of speech, whether they be true statements of fact, false statements of fact, or statements of opinion.

An example of a lie that is protected by the First Amendment: the Supreme Court ruled in US v Alvarez that the Stolen Valor Act was unconstitutional. The SVA prohibited people from falsely claiming to have received a military decoration or medal.


Re: Re: Even those exceptions are "fuzzy".

Making a “false advertising” claim will get you nowhere. The judge will laugh at you and call the fraud in question “puffery”.

Even blatant fraud while illegal still requires the interest of the machine to enforce. The machine may simply have no interest. I have personal firsthand experience with this.

That One Guy (profile) says:

Re: Re: Censor All The Things!

A‘s statements are demonstrably, blatantly false, but A is a powerful figure who might go legal on us if we remove anything of theirs. No removal.’

B‘s statements are on the cusp, they might be false, they might be true, it’s really a matter of point of view. However they challenge the powerful, so off they go.’

Nah, I’m sure it would never be used to go after only the non-powerful while leaving the claims and statements made by the powerful up. That’s just crazy talk.

John85851 (profile) says:

What is fake news?

Isn’t banning “fake news” the same as banning “porn”? The first problem is defining what exactly needs to be banned.

* We can probably agree that posts from trolls trying to sway the election are bad, but should they be banned? Or should people be adults and make up their own mind about whether the story is true?

* Stories from known satire sites like The Onion. Of course their stories are “fake news” and they even say their stories are satire. Should these be banned?
What about the Chinese media that thinks these stories are true? Should those be banned?
What about legit sites like the Huffington Post that see the story in the Chinese media (again based on the The Onion article) and report it as true because they never verified the original source? Should these kinds of stories be banned? And if you’re banning this story from HuffPo, should you allow the rest?

* And will the “fake news ban” block any stories are scientifically proven false, such as how vaccines cause autism or how the world is flat?

* If California can get its own fake news ban, can other states and countries? Will we go along with Middle East countries when they say any negative information about Islam is fake news?

dickeyrat says:

This is all a product of the nation’s sprint toward hard-right Fascism, which in & of itself can be traced back to around 1979. Jimmy Carter was President, and the U.S. had been humiliated by a small faction of Iranian religious nuts, who took 52 (or was it 53) Americans hostage in Tehran. Our country was pissed off about this, and to top it off, we had a funny-looking Southerner in the White House. Along comes Ronnie Reagan, and suddenly it’s “cool” to be a right-wingnut. Look at the era’s popular (mostly “new-wave”) music. The participating males suddenly had haircuts right out of the 1950s, and many bands had militaristic or apocalyptic names (“Spandau Ballet”, “Haircut 100”, “Men At Work”, and my own favorite, “The Dead Kennedys”.) This represented an almost subconscious cultural backlash against the free-love oriented mindset of the late ’60s & early ’70s, with the pendulum swinging overboard to the eventual love for Fascists we see today–fueled by the me-too media, and the general lack of intelligence to be found in the Western (especially American) masses. If this trend continues (as it is today) unabated, we can kiss luxuries such as personal freedoms goodbye within the next thirty years, easily. Heil MAGA!!

John Smith says:

Re: Re:

1979 was also when the ERA failed, and when women stopped pretending to want weak men(“nice guys”).

Look at the type of men women have been breeding to for the past fifty years or longer if you want to see what’s wrong with this country. Used to be that women who chose the wrong men suffered consequences, and were not rescued by a helicopter government bailing them out at taxpayer expense.

Anonymous Coward says:

Re: Re:

It seems that today the problem is not so much right-wing fascism but left-wing fascism. As someone with an apparent interest in the commercial music industry, how do you feel about the current situation, when a near-monopoly like Spotify can serve as judge, jury and executioner when it comes to accusations against musicians, and then ban them from the service without even letting them defend themselves. How far will this so-called “social justice” mentality go in ruining people’s careers on the basis of rumors, accusaations, and heresay?

The recording industry has for generations fought off censorship attempts coming from the conservative right, but is now losing the battle when it comes to being censored by the “progressive” left, which it seems, it much better organized and funded as wel as a tenacious foe. The first victims of Spotify’s ban policy was anything deemed racist. That was no surprise. Now the ban is being expanded to anything deemed misogynistic. How much farther will this “new censorship” grow?

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