This week, Senator Joe Manchin declared that he will not encourage HR 1, the sweeping election reform legislation that passed the House and has been languishing in the Senate, effectively torpedoing its passing. But policymakers shouldn’t scrap the bill entirely. For legislators who are seriously interested in expanding platform liability to resist online misinformation, a few provisions hidden deep in HR1 provide one of the best choices for reform.
Many of those legislators who have been reluctant to encourage HR1, including Senator Manchin, have professed a powerful urge to govern online misinformation, especially calling for reform Section 230 to enlarge tech stage accountability. Absent in the debate about HR 1 is the fact that provisions–buried within hundreds of pages of this invoice’s dense legislative speech –could make technician platforms accountable for a single key type of online misinformation: voter suppression. Out of the dozens of proposals to reform Section 230, this section of HR 1 is one of the most promising.
HR 1 would expand platform accountability by criminalizing voter suppression. While Section 230 makes it difficult to hold platforms accountable for content they host in cases brought under state law or federal civil law, it will not pub suits based on federal criminal law. Any case which uses federal criminal law as the basis for accountability is essentially immune from Section 230.
HR 1 cobbles together several previously introduced bills that want to reform the election process. Among them, the Deceptive Practices and Voter Intimidation Prevention Act, could make it a federal crime to make false statements concerning the”time, place, or manner” or a election, the”qualifications for or restrictions on voter eligibility,” or public endorsements. Currently, no federal law prohibits these practices.
The bill was released 2007 by then-Senator Barack Obama. At the moment, Obama noted that attempts to intimidate and mislead”usually target voters living in minority or low-income neighborhoods.” He claimed the legislation would”ensure that for the first time, these incidents are fully investigated and that those found guilty are punished.” (The invoice sat dormant soon after Obama started his presidential campaign.)
Although the bill has been unveiled a decade prior to Russia’s Internet Research Agency and Macedonian teenagers became a regular quality of news headlines, it anticipated a number of the challenges in online communication that we face today. If passed, it would be the first US federal law to include criminal penalties for distributing information on the web.
Criminalizing voter suppression wouldn’t only expand platform accountability for unemployment misinformation. It’d also likely dissuade some people from using online misinformation campaigns to attempt and curb the vote, because prosecutors could pursue cases against perpetrators who participate in fraudulent practices. It would also provide platforms a basis for coping together with law enforcement in voter suppression cases. While programs frequently provide information in response to law enforcement requests now, they do so only after receiving a legal petition . Without law, no national law enforcement authority may issue a legal petition, and platforms don’t possess a legal foundation for providing data. With brand new law, the government could ask relevant data held by programs, and platforms may comply.
This option isn’t ideal. Critics would likely question the constitutionality of the law under the First Amendment. In the past, the Supreme Court has been skeptical of legislation restricting election address, although they have upheld laws needed to”protect voters from confusion and undue influence” and also to”ensur[e] that an individual’s right to vote is not undermined by fraud in the election process.”
Legal cases against programs would also face considerable challenges. For a stage to be found liable, a prosecutor would have to establish a statement was”materially false,” that the platform understood the statement was untrue, which it had the”intent to impede or prevent another person from exercising the right to vote.” Proving all this would be difficult, especially in cases where platforms were only hosting material posted by a user.
Changing the legislation might likewise not dram