When I started this article, I had a few questions and some provocative issues I wanted to present. However, as I started writing, and writing usually has a life of itself, it started to appear several other questions and issues I felt I had to address. As a result, the article became too long and it is now going to be published in three parts (“Anatomy of disinformation and fake news”, “How we made it to this point and the role of online platforms”, and “Why and how we should regulate social media and criminalize fake news”). Each part can be read independently, but to understand the whole and to connect all the ideas, you should read all three.
1. Why and how we should regulate social media and criminalize fake news
What is the moral mission of a government? Lakoff (again) describes it in his book “The Political Mind”: “Protection and empowerment are part of the moral mission of government” and “Empathy is also the moral basis of laws protecting citizens from abuse by the government”. When society goes in disarray, when companies and entities go in a questionable, undesirable direction, the government must step in based on its moral mission to protect its citizen. Our democracy and society are not for sale or to be controlled by rogue actors/entities based on lies, on their interests, and rooted in the ability or will of a private company to control it: this is completely insane. Social media and tech must be regulated.
“The market will self-regulate” is an outdated economic mantra we know to be incorrect for decades (as I write this, the GameStop case is unrolling. This is the stock market real-life destruction of this mantra. In fact, it exposed corrupted practices of Wall Street) and social media proves it incorrect once again: the social media platforms would have to abandon the core of their business models, probably profiting less for a while, in order to design a product with human wellbeing in mind and with limited, controlled, and transparent data collection and usage. They know and many sounded the alarm, as exposed in the documentary “The Social Dilemma”, but they still didn’t change. They will not change by themselves, the market does not self-regulate, remember? The business model of these companies is rooted in advertising, refined to the microtargeting/hyper-personalization to those who pay more, therefore they will not self-regulate. More: so far, the efforts to curb excessive fake news and to eliminate hate, violence, and radical speech from their platforms proved inadequate and insufficient. The government needs to regulate the industry: the laws in the books are insufficient to cover the range of issues, angles, and problems coming from social media platforms. Facebook tried to place itself as a news outlet some years ago, but they are social media by design and operations, and there are several limitations, contradictions, and barriers to be examined in order to be compatible with their business model. Google knew that: some of their legal job descriptions states “20th century laws don’t always solve 21st century problems”. It certainly does not. That’s why we need to create laws and regulations to curb further social damage, to assure cognitive liberty, and to preserve human wellbeing in a digital society.
At the same time, the creation of fake news and disinformation must be criminalized with a dedicated criminal code for it. It is larger and deeper than libel or defamation, for example. A lawsuit for misinformation may fall short in many ways, it must have a dedicated code with fake news concepts and description. I am not a computer engineer, but certainly, computer or/and smartphone digital signatures can be used to track and find who did it, and social platforms can associate users to their specific digital ID, from their IPs or IMEIs. The platforms will be able to identify the first computer/person who posted the fake news by the metadata attached to the post.
And more is needed: maybe the platforms should share the responsibility and the liability for harboring fake news in their news feed, messages, groups, pages. Section 230 of the Communications Decency Act should be reviewed to allow liability of social media if fake news and other criminal activity take place on a platform. The early statute was created to encourage new forms of communication but clearly did not foresee misuse. That’s a discussion that must occur with society.
Congress must pass a bill or revision of Section 230 to make them co-liable for sharing/spreading fake news and other crimes promoted on their platforms, along with the users, (it may be impossible to remove all fake news, but it certainly can be curbed with more intent and efficiency given the proper stimulus to do so), bills to criminalize fake news and misinformation nationally (States must follow), to block any monetization/profiting from spreading fake news/misinformation on their platforms. Congress must also pass a comprehensive bill that reduces the level of brain interference any tech platform may have on its users and make mandatory to them to show true, honest content to a person or group that have been exposed to fake news, to limit the micro-targeting only to ads and not content: expose all users organically to all content that comes from their contacts (friends, family members, groups, pages, established news media, etc.) without algorithm manipulation and/or interference based on emotions. This measure alone will create more societal tolerance and empathy just by exposure to the “Other”. Create a human-friendly social media platform. Put the social back in social media.
The production and distribution of fake news have an intentionality component that cannot be ignored. That’s mens rea, or, as in the Model Penal Code, negligently, recklessly, knowingly, and purposefully, clarifying the levels of culpability. For fake news, they all seem to fully apply in one way or another and we just need a law to address it.
Given the political and societal damage fake news promoted in the recent past, leading up to the point of a coup attempt past January 6th in Washington D.C. and the way it damaged economies and societies around the world, fake news is overdue to be criminalized, and the government should regulate the reach, influence, and the operations of technology platforms, be it social media, messaging, search, video, news, picture boards, and email platforms. We have gone way too long and too dangerously without 21st-century laws.