ideology,” he said.
The social media companies, where they can, are relying on non-content-based techniques to ferret out foreign entities intruding into U.S. elections. Stretch said Facebook, which requires users to sign up under their real identities, has canceled many accounts traced to Russian actors, because they were inauthentic. Twitter, which allows users to create accounts under pseudonyms, is on the hunt for automated botnets that don’t seem to have a human being behind them, the company’s acting general counsel Sean Edgett told the senators.
But both companies are also responding to pressure from Congress to winnow out “fake news” and other messages that could be harmful to the democratic process.
The big tech companies agreed that their business interests are served by some of this content curation, because banning conduct such as bullying or sexual exploitation improves the user experience. Congress seems to be contemplating new laws that would make wider content control a legal requirement. But judging from the Judiciary hearing this week, Congress might be hard put to frame regulations that would satisfy both political parties, not to mention their wildly varied constituencies.
An animal rights activist or a white supremacist group whose messages were removed from a platform by a private business could denounce this as unfair in the court of public opinion, but they might have little recourse under the First Amendment.
The First Amendment forbids Congress to violate free speech rights by censoring expression, with narrowly limited exceptions. That constraint on censorship extends to government agencies. But private entities largely have the freedom to control speech in their own spheres. For example, newspapers are free to choose only conservative columnists, if that’s what pleases their readers.
Groups such as the Electronic Frontier Foundation have warned of the potential dangers involved when governments try to induce private organizations to take up the role of censors. EFF’s general counsel, Kurt Opsahl, outlined these concerns in a recent statement on Twitter’s decision to ban all advertisements from accounts owned by Russian news outlets Russia Today and Sputnik. Twitter went beyond what the U.S. government would have been authorized to do under both the First Amendment and federal elections law, Opsahl wrote.
“A ban on all advertising from a particular entity, knocking out everything from articles covering a cheese rolling festival to coverage of an election, would be an over-broad prior restraint on speech,” Opsahl wrote.
Under federal elections law, foreigners and some foreign entities, while in the United States, have the right to speak about policy issues, as long as their messages aren’t related to candidates and the voting process.
As for “fake news,” the government itself is largely constrained by the First Amendment from punishing inaccurate statements, and even many outright lies, in the context of political debate, University of Baltimore constitutional law professor Garrett Epps explained in the The Atlantic during the 2016 campaign.
“That’s not because there’s any ‘constitutional value’ in false statements of fact but because the cure—government control of what can be said in politics—is far worse than the disease,” Epps wrote. “To enforce this law, the tribunal would summon the speaker and demand proof that the false statement was not a deliberate lie. That process will inevitably suppress some true statements along with the false and frighten some meritorious speakers into silence; those suppressions are, over time, likely to be skewed toward speech that criticizes government.”
One proposed bill has already emerged from Congress as it investigates Russia’s manipulation of American voters during the 2016 campaign. Senators Amy Klobuchar (D-MN) and Mark Warner (D-VA) want major Internet companies such as Facebook, Twitter, and Google to be required to include the names of political ad buyers on the face of the ads. Facebook and Twitter have now adopted voluntary policies to make the sources of election ads more transparent. But at the hearing, Klobuchar asked them, “There wouldn’t be an outside enforcer of any of your policies?” Stretch said, “That’s correct.” The Facebook attorney also acknowledged that the company has little ability to detect Russia-linked accounts hiding behind shell corporations.
Other legislation may follow, as both lawmakers and tech companies grapple with the real-world consequences when global social media platforms, now a major source of news for millions of Americans, are still vulnerable to exploitation by foreign enemies of the United States.
“I think you do enormous good,” Sen. Kennedy told the tech executives at the Judiciary subcommittee hearing. “But your power sometimes scares me.”
Photo Credit: Andy Emel, Depositphotos
