To fight online disinformation, criminalize voter suppression


This week the senator Joe manchin ad that he will not support RH 1, the extensive electoral reform legislation that was passed in the House and lags behind in the Senate, effectively torpedoing its passage. But policymakers should not do away with the bill completely. For lawmakers who are serious about expanding the accountability of platforms to tackle disinformation online, a few provisions hidden deep within HR1 are one of the best options for reform.

Many lawmakers who have been reluctant to support HR1, including Senator Manchin, have professed a strong desire to regulate online disinformation, specifically calling for a reform of section 230 to expand the accountability of technology platforms. Missing from the debate around HR 1 is the fact that the provisions – buried in hundreds of pages of the bill’s dense legislative language – would hold tech platforms responsible for a key type of disinformation online: voter suppression. Out of dozen of reform proposals to section 230, this section of HR 1 is one of the most promising.

HR 1 would expand the platform’s accountability by criminalizing voter suppression. Although section 230 makes it difficult for platforms to be held responsible for the content they host in cases brought under the law of a state or civil law, he makes do not federal criminal law prosecutions. Any case that uses federal criminal law as the basis for liability is essentially section 230 immune.

HR 1 concocts several bills previously tabled which aim to reform the electoral process. One of them, the prevention of deceptive practices and voter intimidation Act, would make it a federal crime to make false statements regarding “when, where or how” or an election, “qualifications or restrictions on voter eligibility” or public approvals. Currently, no federal law prohibits these practices.

The bill was introduced in 2007 by then senator Barack Obama. At the time, Obama Noted that efforts to intimidate and mislead “generally target voters living in minority or low-income neighborhoods”. He said the legislation “would ensure that, for the first time, these incidents are fully investigated and those found guilty are punished.” (The bill remained dormant shortly after Obama began his presidential campaign.)

Although the bill was unveiled a decade before the Russian Internet Research Agency and Macedonian teens hit the headlines, it anticipated some of the online communication challenges we face today. If passed, it would be the first US federal law to include criminal penalties for disseminating false information online.

Criminalizing voter suppression would not only expand the platform’s responsibility for voting misinformation. It would also be likely deter some people use online disinformation campaigns to try to suppress the vote, as prosecutors could prosecute perpetrators who engage in deceptive practices. It would also give the platforms a basis for working with law enforcement in cases of voter suppression. While the platforms regularly provide The data in response to law enforcement requests today, they only do so after receiving a request. Without applicable law, no federal law enforcement authority can make a legal request, and platforms have no legal basis for providing data. With the new law, the government could request the relevant data held by the platforms, and the platforms could comply.

This solution is not perfect. Critics would likely challenge the constitutionality of the law under the First Amendment. In the past, the Supreme Court has been skeptical of laws restricting electoral speech, although they have confirmed laws necessary to “protect voters from confusion and undue influence” and to “ensure[e] that an individual’s right to vote is not compromised by fraud in the electoral process.

Lawsuits against the platforms would also face serious challenges. For a platform to be held responsible, a prosecutor would have to establish that a statement was “materially false”, that the platform knew the statement was false and “intended to obstruct or prevent another person from exercising his or her right to vote”. Proving all of this would be difficult, especially in cases where the platforms were simply hosting content posted by a user.

Changing the law also might not drastically change the platform’s policies or behavior, as several platforms already prohibit voter suppression. Twitter, for example, not allowed “Post or share content that may remove participation or mislead people about when, where or how to participate in a civic process. “



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