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to follow voluntary policies to make the sources of election ads more transparent.
Both Noti and Vandewalker, however, say their organizations favor legislation to insure that the public can see who is trying to influence their votes through the use of any large-scale social media network.
The Brennan Center supports regulation that would oblige online companies to maintain detailed records about the content of political ads, their purchasers, and how the ads were targeted to individuals or groups of voters, Vandewalker says. Noti says the information should not only be available to government officials, but should also be open to the public.
Free, foreign, and fake news—what’s the law?
U.S. intelligence agencies and Congressional committees are looking beyond paid advertising as they try to understand how Russian operatives could have used social media and websites to sway the voting public in 2016. It’s possible that the bulk of their influence flowed from free messages circulated without the direct involvement of any campaign, and shared by and with millions of Americans. Even more insidious, many of these messages might have been outright lies or distortions of the truth, intended by foreigners to foster distrust among Americans of each other and of the American form of government.
The Federal Election Campaign Act, with its primary focus on campaigns and financial transactions, wasn’t designed to cope with such circumstances.
“Somebody posting something on Twitter for free is not necessarily covered” by the law, Vandewalker says. Twitter would have received no payment from a foreign entity in this case, so the ban on foreign nationals spending money on election activity “potentially leaves out this free social media,” he says.
Facebook says it has closed inauthentic accounts linked to Russian entities, and since March it has expanded efforts to root out fake or misleading news stories, regardless of the source, Bloomberg reported.
Any attempt by lawmakers to require social media companies to control the content its users post could face high Constitutional hurdles: The First Amendment bars the government from restricting free speech, except under very narrow circumstances.
But online companies are free to set limits on the content posted by users, and they have done so in the past in efforts to eliminate content such as hate speech and the sexual exploitation of children. Their voluntary measures to suppress some harmful messages, however, don’t open the door to legal claims that they are responsible for removing all objectionable material. That legal shield against sweeping liability for user content is contained in section 230 of the Communications Decency Act, passed by Congress more than 20 years ago, though it continues to face legal challenges.
Crafting legislation that would control the spread of fake, divisive, or foreign political messages would be a daunting task, even under an administration more friendly to government regulation than President Trump’s. Public opinion may be the more influential force spurring social media companies to control the content they host.
With their freedom under the law to host content from all sources, the big Internet companies have built global networks and given a platform to the powerful and the oppressed alike. But the companies are now grappling with the possibility that their platforms have become international battlegrounds where one nation can vie for political control of another, as the New York Times detailed in a recent story about Facebook.
Social media sites are now primary news sources for millions of Americans, but unlike newspapers, they hold more than mere circulation lists of readers. They know what we buy, who we know, and what we say to them, and they make billions of dollars selling that analysis to advertisers. The money pouring out to influence elections is no longer flowing mainly through campaigns run by the two political parties, but increasingly to a plethora of outside groups whose agendas are much more diversified than a single party’s platform. And some of those groups are outside U.S. borders.
Anyone can use social media to broadcast their opinions at no charge; ads can be placed on numberless outlets, from newspaper websites to Twitter to the political blog written by your neighbor around the corner. What’s more, those ads and messages don’t just run once and disappear off the TV screen or into the recycling bin with the daily paper. They can be shared indefinitely within the global population, and circulate for months or years.
In spite of the vastly powerful communications tools created by social media companies, Vandewalker says he doubts that lawmakers could control the content of free online messages while still upholding other American values. That would be hard to do “without becoming an authoritarian, thought-police kind of state,” he says.
But Vandewalker says government should regulate where it can to make the public aware when a significant portion of the online debate around elections is coming from external entities trying to manipulate voters.
“We should be able to see when foreign powers are deceptively using social media to inject foreign propaganda into our election,” Vandewalker says.