This week, Senator Joe Manchin announced which he does not support HR 1, the vast electoral reform legislation that has passed the House and has been languished in the Senate, effectively torpedoing its passage. But policymakers should not dismiss the bill entirely. For legislators who are serious about expanding the platform’s responsibility to combat online misinformation, some provisions hidden in HR1 provide one of the best options for reform.
Many of the lawmakers who have hesitated to support HR1, including Senator Manchin, have professed a strong desire to regulate misinformation online, calling specifically for the reform of Section 230 to extend the accountability of technical platforms. Absent from the debate around HR 1 is the fact that the provisions – buried in hundreds of pages of the project’s dense legislative language – make technical platforms responsible for a key type of online misinformation: voter suppression. Outside of tens of Section 230 reform proposals, this section of HR 1 is one of the most promising.
HR 1 would expand the responsibility of the platform by criminalizing the suppression of voters. While Section 230 makes it difficult to hold platforms responsible for the content they host in cases subject to state or federal law. civil law, do no bar suit based on federal criminal law. Any case that adopts federal criminal law as the basis for liability is essentially immune from Section 230.
HR 1 brings together several previously introduced projects that seek to reform the electoral process. One of them, Deceptive Practices and Prevention of Bullying of Voters Act, would make it a federal offense to make false statements regarding “time, place, or manner” or an election, and “qualifications for or restrictions on voter eligibility,” or public support. 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 deceive “usually target voters living in minority or low-income neighborhoods.” He said the legislation “will ensure that for the first time, these incidents are fully investigated and that those found guilty are punished.” (The bill fell asleep shortly after Obama began his presidential campaign.)
Although the project was unveiled a decade before the Internet Research Agency in Russia and Macedonian teenagers became a routine feature of news headlines, it anticipated some of the challenges in online communication that let us face it today. In case of passage, it would be the first U.S. federal law that included criminal sanctions for the dissemination of online misinformation.
Criminalizing voter suppression would not only expand the platform’s responsibility for misinformation of the vote. It would also be likely dissuade some people have used online disinformation campaigns to try to suppress voting, since prosecutors could prosecute cases against 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 supply regularly data in response to questions of law enforcement today, they do so only after receiving permission ask. Without applicable law, no federal law enforcement authority can issue a legitimate request, and platforms do not have a legal basis to provide data. With a new law, the government could request the relevant data held by the platforms, and the platforms could comply.
This solution is not perfect. Critics may challenge the constitutionality of the law under the First Amendment. In the past, the Supreme Court has been skeptical about laws limiting electoral discourse, even if confirmed laws necessary to “protect voters from confusion and undue influence” and to “ensure[e] that the right of an individual to vote is not undermined by fraud in the electoral process ”.
Legal cases against the platforms will also face serious challenges. For a platform to be found liable, a prosecutor should establish that a statement was “materially false,” that the platform sapia the statement was false, and that it had “the intention of preventing or impeding another person from exercising the right to vote.” Trying all this would be difficult, especially in cases where the platforms were only hosting content posted by a user.
Changing the law could also not dramatically change the policies or behavior of the platforms, since many platforms already prohibit the suppression of voters. Twitter, for example, prohibits “Posting or sharing content that may suppress participation or mislead people about when, where, or how to participate in a civic process.”