Tech

No One In Congress Wants To Regulate Fake News

Regulating Facebook would invite Constitutional challenges, legal experts say, while lawmakers call for better internal policies to curb misinformation.

BuzzFeed News / Getty Images

WASHINGTON — Despite the rampant conspiracies that were shared widely during the presidential election and the subsequent uproar over fake news, disinformation, and propaganda, Congress is highly unlikely to take steps to regulate Facebook, even as the platform-titan presides over the distribution of news.

“I don’t think regulating them is the answer,” Rep. Anna Eshoo told BuzzFeed News. “Who is going to be sitting with a federal spyglass to vet each word that comes off of a platform? That doesn’t seem feasible to me.”

Nearly half of American adults get news from Facebook. That figure becomes somewhat more distressing paired with data that suggests people who rely heavily on the social network for their news are prone to getting duped. The Pope himself recently likened the consumption of fake news to eating human waste.

“We have more and more of the population that believes that they are reading news that is authentic and vetted, when it is the opposite,” Eshoo said. “It’s one thing to say that the New York Times reported inaccurately, and they have to make good on it, but there isn’t any such thing on the internet.”

Eshoo, who cofounded the Congressional Internet Caucus, and represents a tech-friendly stronghold outside of San Francisco, praised communication platforms as tools that can serve democracy, even as she acknowledged their capacity to mislead citizens.

She added, “News and its viability is one of the sacred ingredients of a democracy, it’s not something to be toyed with. I don’t think I have the answer. I think I have a strong sense of what’s important.”

Following widespread criticism that Facebook, through complacency and a social scheme that rewards sensationalist engagement-chasing, may have influenced the election, CEO Mark Zuckerberg dismissed the charges as “pretty crazy.” Days later he softened his stance to “extremely unlikely,” even as some employees within the company have challenged Zuckerberg on this issue, forming an unofficial task force to examine Facebook’s role in promoting fake news.

“I absolutely believe Facebook should do more internally to regulate fake news and point out fake news,” Rep. Ted Lieu told BuzzFeed News. “I also oppose any governmental efforts to make any private sector company do that.” He continued, “I’m a strong believer in the First Amendment and I don’t believe it’s government’s role to force companies to take that action, although I would hope that companies do so.”

Lieu’s comments echo those of legal experts, who see editorial and procedural improvements to social platforms as the way forward, rather than Congress imposing potentially unconstitutional remedies through new laws.

“I don’t think there is a way to regulate them in a way that’s consistent with the First Amendment,” David Greene, the civil liberties director of the Electronic Frontier Foundation told BuzzFeed News. “We don’t regulate the press in this country. Even if it were possible to define fake news, there’s still a lot of very strong First Amendment protection for false speech.”

Unlike defamation or libel, malicious lies that harm individuals, Greene said it would be difficult for Congress to shape a law that would protect the public at large from published falsehoods, since no single group or person could convincingly show they were harmed. “There has to be some kind of recognized injury,” he said, beyond the public feeling misled.

Online intermediaries like Facebook and Twitter, Youtube and Yelp, are generally shielded from what users say on their networks. A provision in existing law, known as Section 230 of the Communications Decency Act, gives internet platforms broad protections from liability stemming from objectionable content. These web companies, which include both internet service providers (like Comcast) and “interactive computer services” (like Google) aren’t considered publishers or speakers themselves, but hosts of other people’s expression. “If Facebook did not create the content, then Facebook can bear no liability,” Greene explained.

Eugene Volokh, a law professor at UCLA and founder of the legal blog Volokh Conspiracy, told BuzzFeed News that a law targeting the publication of knowingly false statements of fact would not be a “radical departure from American First Amendment traditions.” The danger, he said, would come from its implementation.

“In principle it sounds great not to have fake news, but the problem is someone is going to have to figure out what’s true and what’s a lie,” he said. “Especially when it gets to political stories, or stories about history, science, or current events, that somebody — the government, the prosecutor — is going to have his own preconceptions and political agendas.”

“That’s a perilous power to give to the government,” he said. For Volokh, a prohibition on fake news would chill free speech and journalistic endeavours, since even true statements on controversial topics might be punishable.

“I hope that social media platforms continue to work their algorithms to give more weight and balance to stories coming from credible news source,” Rep. Katherine Clark told BuzzFeed News. But the bigger challenge, she said, is the spread of misinformation coming from President-elect Donald Trump, and those close to him.

“We have an incoming president who is unafraid to use complete hoaxes and false stories and to promulgate them as true,” Clark said. To illustrate the danger that can arise from misleading information, Clark pointed to the recent Pizzagate episode where a man entered a popular DC restaurant, Comet Ping Pong, and pointed a loaded assault rifle at an employee in an attempt to “self-investigate” a convoluted conspiracy theory about Hillary Clinton and Democratic operatives that circulated online.

“The rise of fake news has real and dangerous consequences, which we saw this weekend during the deeply troubling incident at Comet Ping Pong,” said Rep. Chris Van Hollen in a statement. “At a time when fake news is constructing entire realties from scratch and the word ‘post-truth’ is entering the dictionary, we all must do our part in reporting destructive misinformation when we see it and be unrelenting in our pursuit of truth.”

While Rep. Darrell Issa ruled out the possibility of holding platforms and media outlets criminally liable for the malicious publication of fake news, he said the Judiciary Committee, which he sits on, could explore the issue. “Where’s the line of yelling ‘fire’ in a movie theatre crossed in less-than-accurate reporting?” he asked. “I think there is a real opportunity, and Judiciary owns a great deal of that, to ask the question: is there a responsibility when one purports to be reporting the news, and where does that lie on the internet?”


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Hamza Shaban is a technology policy reporter for BuzzFeed News and is based in Washington, D.C.
Contact Hamza Shaban at Hamza.Shaban@buzzfeed.com.
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