Senators Klobuchar And Lujan Release Ridiculous, Blatantly Unconstitutional Bill To Make Facebook Liable For Health Misinformation

from the stop-this-nonsense dept

On Wednesday, Senator Amy Klobuchar promised to introduce a bill that would somehow hold Facebook liable for medical misinformation. As we wrote in the post about her claims, that doesn't explain how there would be any legitimate underlying cause of action, because nearly all such medical misinformation is still protected by the 1st Amendment.

Yesterday Klobuchar, along with Senator Ben Ray Lujan, introduced their bill: the Health Misinformation Act of 2021. To say it's unconstitutional would be giving it too much credit. To say that it wouldn't even remotely do anything useful would be to state the obvious. To say that it's a grandstanding piece of absolute nonsense would be about the best thing I could think of. It's garbage in so many ways.

The actual functioning of the bill would be to add an exception to Section 230's protections, saying that they no longer apply -- if it's in the midst of a health crisis -- for medical misinformation. It would add the following "EXCEPTION" to Section 230:

A provider of an interactive computer service shall be treated as the publisher or speaker of health misinformation that is created or developed through the interactive computer service during a covered period if the provider promotes that health misinformation through an algorithm used by the provider (or similar software functionality), except that this subparagraph shall not apply if that promotion occurs through a neutral mechanism, such as through the use of chronological functionality

And, this law would only be in effect during a public health emergency, as declared by the Secretary of Health & Human Services. The law would also require the Secretary of Health & Human Services to "issue guidance regarding what constitutes health misinformation." That last bit should make you grimace, because that's a hugely problematic thing for the 1st Amendment. Having the government define what is and what is not "health misinformation" cannot possibly pass 1st Amendment scrutiny by a court.

It's also incredibly dumb. First of all, in a "public health emergency" like we're currently going through, what is and what is not "health misinformation" is not always clear, and involves constantly changing information. Remember, we went through this with the whole "wearing masks" thing at the very beginning of the pandemic. Then, you had the WHO and CDC advise against wearing masks. Under this bill, you could have had the HHS boss claim that anyone promoting mask wearing was engaging in health misinformation... and somehow try to make Facebook liable for it. Would that have been a good idea?

Even worse: imagine what kind of information might be declared "health misinformation" by disingenuous grandstanders? Pro-choice information? Information about transgender health?

But, going back a step: what would this law actually do, even if it weren't so blatantly unconstitutional? The answer is absolutely fucking nothing. Because, as we pointed out on Wednesday, you still need an underlying cause of action and there is none here. Okay, so now Facebook is magically "liable" for health misinformation? But as soon as anyone sues, Facebook says "that content is protected speech, so there's no cause of action here" and the court dismisses the case. Whether we like it or not, nearly all misinformation is still protected under the 1st Amendment. And, for the reasons discussed earlier, that's probably a good thing -- because otherwise, you'll have the government declaring things you agree with as misinformation, and that leads to very dangerous places.

This entire bill is not just grandstanding nonsense, but a waste of time. Yes, we should be looking for ways to better educate the public about the actual efficacy of (massively successful) COVID-19 vaccines. And, yes we need to figure out better ways to reach those who are skeptical about vaccines or hesitant to get the vaccine. But this bill does none of that. It just throws a bunch of garbage out so that Klobuchar can stand before the TV cameras and pretend to do something. It's the worst kind of political grandstanding.

And, while we're talking about how ridiculous this is, let's just throw in a giant "oh shut the fuck up" to Facebook as well for putting out a total garbage statement in response:

"We have long supported common industry standards and section 230 reform. We believe clarification on the difficult and urgent questions about health related misinformation would be helpful and look forward to working with Congress and the industry as we consider options for reform."

What a bunch of garbage. Facebook knows that this bill is a mess of nonsense, and that the 1st Amendment would stop it from having any impact. Rather than putting out a compliant, suck up statement, why can't Facebook speak up about what it's actually doing to try to deal with health misinformation on the site? That would be interesting and that has mostly been absent from this discussion beyond whatever uninformed nonsense is being stated by people outside the company about what they think Facebook is doing (which is either "nothing" according to many ignorant folks, or "censoring conservatives!" according to another bunch of equally ignorant folks). If Facebook came out and actually explained what it really is doing that would be helpful. But, of course, Facebook is trying to play the politics of all of this, rather than doing the right thing.

Filed Under: 1st amendment, amy klobuchar, ben ray lujan, cause of action, content moderation, covid-19, health misinformation, liability, misinformation, section 230, vaccine
Companies: facebook

Senator Amy Klobuchar Says She Has A Bill To Hold Facebook Responsible For Vaccine Disinfo; But What Would The Cause Of Action Be?

from the that's-not-how-any-of-this-works dept

Earlier this week, appearing on The View, Senator Amy Klobuchar was asked about COVID disinformation, and gave a pretty bizarre answer. Responding to a question about how fighting COVID has been politicized by Fox News, Klobuchar said we should make Facebook responsible. It's really quite an incredible disconnect. The question specifically highlighted how Fox News was the main vector of COVID misinformation, and Klobuchar said this:

And at the same time, the misinformation on the internet, which is something I'm personally taking on is outrageous. These are the biggest richest companies in the world that control these platforms, and they've got to take this crap off. We're in a public health crisis -- we still are -- we've seen major improvement thanks to the vaccines, the ingenuity of people, Biden administration getting this out, but this is holding us back. Two thirds of the people that are not vaccinated believe something that they read on the internet. That's all the facts I need. That's from a Kaiser Foundation Report.

So I'm going to introduce a bill to limit the misinformation on vaccines by saying you guys are liable if you don't take it off your platforms.

The next speaker then joked that Facebook is "more likely to remove a breastfeeding shot than some misinformation" which... um... is not even remotely true. It may have been true a decade ago but old talking points are obsolete.

But, the larger point here is make Facebook liable for what exactly? Whether we like it or not, vaccine misinformation is still protected speech under the 1st Amendment. And no bill that Klobuchar can introduce can change the 1st Amendment. So, if you make them "liable," there still is no cause of action because the misinformation itself does not (and cannot) violate any law in the US.

And, as has been pointed out over and over again, it's not as easy as everyone makes it out to be for these sites to just snap their fingers and make such misinformation disappear. Everyone thinks it is because they've never had to do it themselves, especially not at the scale of a Facebook. First, you need clear, easily understood definitions of what qualifies as vaccine misinformation that are easily explained to tens of thousands of human moderators. Then you need to train them how to recognize what is actually misinformation -- and not someone just commenting about vaccines (including by people who might not be experts, and might get some small things wrong). Then you need to set parameters for what kinds of misinformation should actually lead to what responses. Do you shut down accounts entirely? Do you give people warnings? Do you make them delete specific content? Then you have to deal with levels of misinformation. How do you deal with someone who presents something that is technically factual, but placed in a warped context, such that it implies something false? How about someone who presents incomplete information? Or someone who presents factual information, but their interpretation of it is incorrect? How do you know who is doing it deliberately and who is just unclear?

Then you have to deal with the false positives (of which there will be many -- including people trying to spread counter-info to respond to those spreading disinformation). Then you have to recognize how disinformation strategies will continue to evolve over time, and how those with a vested interest in spreading such information will change their tactics, so whatever worked yesterday won't work tomorrow. Then you have to recognize that you're still going to miss a massive amount of the content, because you have 2.8 billion users around the globe, and no company, no matter how big, and with however many AI bots and human content moderators, can ever possibly review all of it... and you're putting companies in an impossible position.

Demanding the impossible is not good policy.

Can Facebook do a better job of all of this? Of course. Has the company been flippant and silly in the past in responding to controversies over content moderation. Absolutely. But demanding the impossible and threatening unconstitutional regulatory responses for failing seems... counterproductive?

Filed Under: 1st amendment, amy klobuchar, cause of action, content moderation, disinformation, section 230, vaccine disinformation
Companies: facebook