design of tools built by social media companies that have been used to spread digital disinformation and facilitate other types of harm.
Legislating Harms The harms, like the societal objectives for regulating them, have often been difficult for Congress to specify without running afoul of the First Amendment. They are also difficult to define because of methodological issues, like being unable to reliably measure human behavior, or utilizing datasets that fail to include all sources of media consumption.19 Some harms, like buying or selling humans online, are slightly easier to define, but even addressing that behavior faced blowback due to the impact on other vulnerable populations.20 It is much harder to assess the harms caused when artificial computational amplification21 of information or sockpuppet22 accounts, or gaming of trending algorithms– through computational or manual methods– create a deliberately false impression that there is broader consensus or more enthusiasm behind an idea, product, or person than actually exists. Such harms are difficult to regulate partially because the language of law must reflect the rapidly changing technology landscape, the impact of those behaviors is not entirely known, and different entities have different views about what constitutes harm online.23 Other well-established online harms like fraud or fakery involve a variety of tactics and techniques that have their non-digital analogs in Soviet influence operations that used disinformation, but that have been changed to work more effectively online.24 Soviet-era disinformation methods
15
19
Arayankalam, & Krishnan, S. (2021). Relating foreign disinformation through social media, domestic online media fractionalization, government’s control over cyberspace, and social media-induced offline violence: Insights from the agenda-building theoretical perspective. Technological Forecasting & Social Change, 166, 120661. https://doi.org/10.1016/j.techfore.2021.120661
20
FOSTA/SESTA has been one of the few pieces of legislation that has passed as a carve out of Section 230 of the CDA, and it negatively impacted sex workers and their livelihoods. Further, in the GAO review study on the legislation it noted that the provision has rarely been used and that cases are brought under other statutes.
21
Artificial computational amplification refers to the methods by which propaganda is disseminated using automated scripts (bots) and algorithms. It is artificial because the reach and popularity of such messaging, as it appears online, is not a result of real audience engagement.
22
Sockpuppet accounts are fake, or alternative online identity or user accounts used for the purposes of deception.
23
This research included an assessment of the primary harms and harm themes represented in the legal cases against social media companies. See the Appendix for a brief high-level summary of general policy proposal areas, the harms they attempt to regulate and recent legislation.
24
For a novel framework and assessment of online fakery, see Matwyshyn, & Mowbray, M. (2021). FAKE. Cardozo Law Review, 43(2), 643.
Crisis and Congress: Technology, Information, and the Future of Governance
