California State Senator Pushes Bill To Remove Anonymity From Anyone Who Is Influential Online

Free Speech

from the someone-buy-padilla-a-'constitutional-lawmaking-for-dummies'-book dept

What the fuck is wrong with state lawmakers?

It seems that across the country, they cannot help but to introduce the absolute craziest, obviously unconstitutional bullshit, and seem shocked when people suggest the bills are bad.

The latest comes from California state Senator Steve Padilla, who recently proposed a ridiculous bill, SB 1228, to end anonymity for “influential” accounts on social media. (I saw some people online confusing him with Alex Padilla, who is the US Senator from California, but they’re different people.)

This bill would require a large online platform, as defined, to seek to verify the name, telephone number, and email address of an influential user, as defined, by a means chosen by the large online platform and would require the platform to seek to verify the identity of a highly influential user, as defined, by asking to review the highly influential user’s government-issued identification.

This bill would require a large online platform to note on the profile page of an influential or highly influential user, in type at least as large and as visible as the user’s name, whether the user has been authenticated pursuant to those provisions, as prescribed, and would require the platform to attach to any post of an influential or highly influential user a notation that would be understood by a reasonable person as indicating that the user is authenticated or unauthenticated, as prescribed.

First off, this is unconstitutional. The First Amendment has been (rightly) read to protect anonymity in most cases — especially regarding election-related information. That’s the whole point of McIntyre v. Ohio. It’s difficult to know what Padilla is thinking, especially given his blatant admission that this bill seeks to target speech regarding elections. There are exceptions to the right to be anonymous, but they are limited to pretty specific scenarios. Cases like Dendrite lay out a pretty strict test for de-anonymizing a person (while limited as a precedent, but adopted in other courts), and it has to only be after a plaintiff demonstrates to a court that the underlying speech is actionable under the law. And not, as in this bill, because the speech is “influential.”

Padilla’s bill recognizes none of that, and almost gleefully makes it clear that he is either ignorant of the legal precedents here, or he doesn’t care. As he lays out in his own press release about the bill, he wants platforms to “authenticate” users because he’s worried about misinformation online about elections (again, that’s exactly what the McIntyre case said you can’t target this way).

“Foreign adversaries hope to harness new and powerful technology to misinform and divide America this election cycle,” said Senator Steve Padilla. “Bad actors and foreign bots now have the ability to create fake videos and images and spread lies to millions at the touch of a button. We need to ensure our content platforms protect against the kind of malicious interference that we know is possible. Verifying the identities of accounts with large followings allows us to weed out those that seek to corrupt our information stream.”

That’s an understandable concern, but an unconstitutional remedy. Anonymous speech, especially political speech, is a hallmark of American freedom. Hell, the very Constitution that this law violates was adopted, in part, due to “influential” anonymous pamphlets.

The bill is weird in other ways as well. It seems to be trying to attack both anonymous influential users and AI-generated content in the same bill, and does so sloppily. It defines “influential users” as someone who where

“Content authored, created, or shared by the user has been seen by more than 25,000 users over the lifetime of the accounts that they control or administer on the platform.”

This is odd on multiple levels. First, “over the lifetime of the account,” would mean a ridiculously large number of accounts will, at some point in the future, reach that threshold. Basically, you make ONE SINGLE viral post, and the social media site has to get your data and you can no longer be anonymous. Second, does Senator Padilla really think it’s wise to require social media sites to have to track “lifetime” views of content? Because that could be a bit of a privacy nightmare.

And then it adds in a weird AI component. This also counts as an “influential user”:

Accounts controlled or administered by the user have posted or sent more than 1,000 pieces of content, whether text, images, audio, or video, that are found to be 90 percent or more likely to contain content generated by artificial intelligence, as assessed by the platform using state-of-the-art tools and techniques for detecting AI-generated content.

So, first, posting 1,000 pieces of AI-generated content hardly makes an account “influential.” There are plenty of AI-posting bots that have little to no followings. Why should they have to be “verified” by platforms? Second, I have a real problem with the whole “if ‘state-of-the-art tools’ identify your content as mostly AI, then you lose your rights to anonymity,” when there’s zero explanation of why, or whether or not these “state-of-the-art tools” are even reliable (hint: they’re not!). Has Padilla run an analysis of these tools?

There are higher thresholds that designate someone as “highly influential”: 100,000 lifetime user views and 5,000 potentially AI-created pieces of content. Under these terms, I would be legally designated “highly influential” on a few platforms (my parents will be so proud). But then, “large online platforms” would be required to “verify” the “influential users’” identity, including the user’s name, phone number, and email, and would be required to “seek” government-issued IDs from “highly influential” users.

There is no fucking way I’m giving ExTwitter my government ID, but under the bill, Elon Musk would be required to ask me for it. No offense, Senator Padilla, but I’m taking the state of California to court for violating my rights long before I ever hand my driver’s license over to Elon Musk at your demand.

While the bill only says that the platforms “shall seek” this info, it would then require them to add a tag “at least as large and as visible as the user’s name” to their profile designating them “authenticated” or “unauthenticated.”

It would then further require that any site allow users to block all content from “unauthenticated influential or highly influential” users.

It even gets down to the level of product management, in that it tells “large online platforms” how it has to handle showing content from “unauthenticated” influential users:

(1) A large online platform shall attach to any post of an influential or highly influential user a notation that would be understood by a reasonable person as indicating that the user is authenticated or unauthenticated.

(2) For a post from an unauthenticated influential or highly influential user, the notation required by paragraph (1) shall be visible for at least two seconds before the rest of the post is visible and then shall remain visible with the post.

Again, there is so much problematic about this bill. Anyone who knows anything about anonymity would know this is so far beyond what the Constitution allows, that it should be an embarrassment for Senator Padilla, who should pull this bill.

And, on top of anything else, this would become a massive target for anyone who wants to identify anonymous users. Companies are going to get hit with a ton of subpoenas or other legal demands for information on people, which they’ll have collected, because someone had a post go viral.

Senator Padilla should be required to read Jeff Kosseff’s excellent book, “The United States of Anonymous,” as penance, and to publish a book report that details the many ways in which his bill is an unconstitutional attack on free speech and anonymity.

Yes, it’s reasonable to be concerned about manipulation and a flood of AI content. But, we don’t throw out basic constitutional principles based on such concerns. Tragically, Senator Padilla failed at this basic test of constitutional civics.

Filed Under: 1st amendment, ai, anonymity, california, elections, influencers, steve padilla