Protecting the Integrity of American Democracy in the Age of Social Media, Russia and Fake News

On February 16, 2018, thirteen Russians and a Russian corporation were indicted by Robert Mueller in his investigation into Russian interference with the 2016 Presidential election. The indictment detailed a massive and well-orchestrated Russian scheme to use social media to manipulate American public opinion, to stir existing tensions and to undercut American democracy. At the heart of the scheme was the creation of fake social media accounts that were used by the Russians to spread its divisive messages on topics such as immigration, race and religion. According to Facebook, upwards of 126 million Americans at some point encountered posts created through Russian operatives.

The indictment charged the Russians with conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud and aggravated identify theft. That being said, the Russians were not charged with any crime based upon the content of their posts or upon the fact that their fake news stories were maliciously spread online. The crimes against the Russians were based squarely on the fact that foreigners are prohibited from making expenditures in American elections to seek to influence its results and foreigners must first register with the Attorney General’s Office before engaging in political activities within the United States.

In the 2016 Presidential Campaign, Russia’s social media’s activities has been described as Digital Marketing 101. Utilizing social media platforms, Russian operatives were able to take advantage of not only our country’s divisions but our country’s appetite for what can be described as cheap speech. In previous generations, campaigns were centralized and the platforms through which political advertising was communicated were regulated and controlled. Nowadays, anybody with a social media account can post a message about a candidate, whether true or false, and have that message spread through either organic or paid online advertising. Politicians can hardly control the messages being spread by their supporters let alone their opponents.

There are significant benefits to the democratization of campaign advertising. Most importantly, politics is becoming more egalitarian, with candidates increasingly able to develop a following through social media without the need of relying upon the party apparatus. Social media is also a resource to allow candidates to raise small sums of money from many individuals which alleviates the dependence on the traditional donor class. America must find a way to counter the ongoing online disinformation by Russia and other actors while protecting the benefits afforded by social media. Protecting our democracy from cheap speech will likely require new legislation, cooperation from stakeholders and systematic changes to our electoral system.

As an initial matter, Congress should pass the Honest Ads Act. The bill, currently sitting in committee, would require online platforms to disclose who are purchasing political advertisements. Facebook and Twitter have announced that it supports the Honest Ads Act and Facebook has already implemented new systems to verify where political advertisements are being purchased and who are purchasing them. The Honest Ads Act brings election laws into the twenty-first century and would help combat foreign actors from purchasing online advertisements. While the Honest Ads Act does not solve the problem of organically spread disinformation, it would prevent foreign actors from targeting specific demographics susceptible to influence.

Second, online platforms need to address the problem of online bots. In the aftermath of divisive news events, online bots help to accelerate our country’s divisions. Facebook, Google and Twitter have expressed their commitment to addressing foreign interference in American elections, including by addressing the problems created from bots. Despite the platforms’ efforts, bots have proven resilient. If social media platforms fail to stamp out this issue, ultimately legislation may be necessary. Whether by legislation or self-regulation, it should be clear that tweets, posts and videos should not be able to be spread, reposted or retweeted without an account being periodically verified as belonging to a human.

Third, states and local communities should require the teaching of digital media literacy. Children and young adults are being inundated with online content. Students need to be taught how to understand, interpret and critically examine the content they encounter online. In addition, students need to be taught about fake news so that they have an understanding of what it is, how to spot it and why it is dangerous to democracy. The next generation of Americans must be prepared to counteract the volume of disinformation they will encounter.

Finally, disinformation and fake news is generally the most effective on the margins. However, in our current electoral system for President, a few thousand votes, even a few hundred votes, can make the difference in a state, which in turn can impact the general election. To protect our democracy, our country needs to finally elect our President by the popular vote. It should be noted that since 1968, the margin of the popular vote for any Presidential election has not been within 500,000 votes. The greater the margin of victory, the less likely that a targeted disinformation campaign through social media could sway the results of an election. The United States Constitution does not need to be amended for our electoral system to rely upon the national popular vote. Instead, states could simply require their state’s electors to vote in the Electoral College based upon the outcome of the national popular vote. In fact, ten states, representing 165 electoral votes, have already joined an interstate pact to do just that. However, the pact only comes into effect if the group has enough votes (270) to collectively win the Electoral College.

While Russia exposed and continues to expose many of the threats to democracy that social media presents, solving the problems endemic on social media platforms does not end at Russia’s shores. America must take on the threat posed by online electoral interference by foreign and domestic actors with a multi-prong approach that includes regulation, cooperation and education. Our country’s democracy is in peril and if we fail to take bold action now, the legitimacy and credibility of future elections will perpetually be the subject of doubt. We must never allow this possibility to become our new reality.

New Jersey Attorney/Privacy Advocate. Fighting to safeguard privacy rights, to reform Sec. 230 of the CDA and to protect American democracy in the age of Trump.

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