Gavin Newsom Signs Hugely Problematic ‘Transparency’ Bill Into Law

Content Moderation

from the but-why-gavin? dept

We’re still waiting to see if California Governor Gavin Newsom will sign the California Age Appropriate Design Code (AB 2273) into law, though all indications are that he will. However, he has now signed a different bad bill into law. He has happily signed what he calls the “nation-leading social media transparency measure” AB 587 into law. The bill is a disaster whether or not you support the goal of “transparency” for social media companies. Actually, the bill is a disaster especially if you support more transparency from social media companies.

As we explained last month, it’s clear that AB 587 was written by people who have never run a website, and that no one who worked on it has the first clue about how anything online actually works. The “transparency” required in the bill is basically a roadmap for propagandists, disinfo peddlers, and nonsense makers who will now have the power to force companies to keep their content up, and to figure out how best to game social media, while limiting their abilities to respond.

First, the bill requires social media companies to publish their terms of service (something all of them do) and to send them to the Attorney General every six months (earlier it was every quarter). It also has to lay out how it handles specific content:

(A) Hate speech or racism.

(B) Extremism or radicalization.

(C) Disinformation or misinformation.

(D) Harassment.

(E) Foreign political interference.

It also requires a “detailed description of content moderation practices” around these categories, including the tools the company uses, removal plans and some other items. It also requires a full report on numbers of “actioned” items, broken out by category.

In other words, updating your content moderation policies or action is now much more difficult. You’ve created a bureaucratic, legal liability mess for any website, because any mistake opens you up to legal action from the Attorney General. So, not only do you have to be much more public about your content moderation policies (which again, becomes an instruction manual for those with malicious intent), but also making changes to them is now much slower. It is much more difficult to react to changing tactics by bad and malicious actors.

And that’s not even getting into the 1st Amendment problems of all of this. Note that much of this bill reads almost identical to Texas’ HB20. Texas’ law definitely went much further in terms of enforcement and including “no censorship” provisions, but it also includes very similar transparency clauses, requiring twice a year “transparency reports” that detail all content moderation actions. Remember, this bill was initially dumped as unconstitutional, even the transparency parts. As the district court said in dismissing these parts as unconstitutional:

The Section 2 requirements burden First Amendment expression by “forc[ing] elements of civil society to speak when they otherwise would have refrained.” Washington Post v. McManus, 944 F.3d 506, 514 (4th Cir. 2019). “It is the presence of compulsion from the state itself that compromises the First Amendment.” Id. at 515. The provisions also impose unduly burdensome disclosure requirements on social media platforms “that will chill their protected speech.” NIFLA, 138 S. Ct. at 2378. The consequences of noncompliance also chill the social media platforms’ speech and application of their content moderation policies and user agreements. Noncompliance can subject social media platforms to serious consequences

Some people seem confused by this, but I can make it pretty clear. Imagine if this same law said that news organizations, from CNN to the NY Times to Fox News to the LA Times, had to write up out their official editorial policy on what they will and won’t cover, how they rank stories, and what their editorial priorities are and submit them to the Attorney General every six months. What if, further than that, the law required them to state, explicitly, how they handled news on specific topics, including hate speech, racism, extremism, disinformation, and political interference.

I think most people would immediately see the massive 1st Amendment problems there, and those newsrooms would erupt in protest. Just the fact you would have to announce your editorial policies to the state’s chief law enforcement officer, and that you were required to reveal your policies on specific types of content — content where the editorial policies might diverge from the state’s interests — would have a very clear, and very obvious chilling effect on most newsrooms, even if the enforcement options are more limited.

And, as in Texas, having to compile a report regarding every bit of content “actioned” and sharing that with the state can, again, be both burdensome, and carries an implied restriction on speech, much of which is constitutional.

Obviously, that’s the intent of this law. By telling companies they must have policies on these categories of speech (again, all of them are mostly constitutionally protected forms of speech), the government is basically saying “you need to clean up this kind of problematic speech.” This is a wholly different approach than the federal government’s (current) approach with Section 230, which takes a hands off approach, but tells companies they won’t face liability for their decision making.

Here, instead, California is saying “hi, we’re from the government, and we’re particularly interested in how you moderate these specific categories of content we dislike, and we demand you tell us exactly what you’re doing, or we’ll punish you.”

I just can’t see how that’s even remotely constitutional.

And, of course, I’m curious how the Democrats who currently run California will feel if Republicans regain control over the state (as was the case not that long ago), and adjust that “list” of categories to contain other areas that the Democrats feel differently about? Once again, this seems to be overly aggressive lawmaking with the belief by Democrats that “we’ll always be in power.” But that’s not how it works.

The bill is an unconstitutional garbage dump of problems.

What’s incredible (and unfortunate) is how Newsom and the bill’s author, Assemblymember Jesse Gabriel clearly don’t understand any of this. Here’s Newsom’s comment:

“California will not stand by as social media is weaponized to spread hate and disinformation that threaten our communities and foundational values as a country,” said Governor Newsom. “Californians deserve to know how these platforms are impacting our public discourse, and this action brings much-needed transparency and accountability to the policies that shape the social media content we consume every day. I thank Assemblymember Gabriel for championing this important measure to protect Californians from hate, harassment and lies spread online.”

Again, whether you like it or not, hate and disinformation is protected by the 1st Amendment. This statement alone more or less admits he’s signing this law because he believes it will be helpful in suppressing constitutionally protected speech, which is not great (and it wouldn’t surprise me if this statement makes an appearance in a future lawsuit challenging the bill).

Gabriel’s statement is worse. I’m honestly gobsmacked. Has he ever spoken to anyone who actually runs a website:

“Social media has created incredible opportunities, but also real and proximate threats to our kids, to vulnerable communities, and to American democracy as we know it,” said Assemblymember Gabriel. “This new law will finally pull back the curtain and require tech companies to provide meaningful transparency into how they are shaping our public discourse, as well as the role of social media in promoting hate speech, disinformation, conspiracy theories, and other dangerous content. I am grateful to Governor Newsom for signing this bill and for his leadership in protecting kids and vulnerable communities online.”

“For the kids,” of course. Every grandstanding politician with no understanding of how anything works goes back to the “for the kids” excuse. But this doesn’t help protect kids. It helps those who are the threats to kids, by forcing websites to tell those threats how to better game these websites, and limiting the ability of websites to respond.

It will also lead to inevitably abusive lawsuits (not directly under this bill, but because of this bill) in which malicious actors will point to the released terms of service and insist that the were moderated somehow against the posted terms. We’ve already seen this in other cases, and while it hasn’t been successful yet, the more granular demands in Gabriel’s ridiculously badly drafted bill, only help those looking to make those specious legal arguments, by giving them more to hang their claims on.

I’m honestly curious what social media companies Gabriel has ever spoken to in creating this bill, because the bill is so disconnected from the reality of actually managing a site that either he spoke to none or he deliberately ignored what they told him.

Filed Under: 1st amendment, ab 587, california, gavin newsom, jesse gabriel, transparency