California Lawmakers Want a Study of Fake News (If Someone Else Pays for It)

“Fake news” is a defining fear about our post-factual Trumpian era, which makes it important enough (or perceived to be so) that government regulators surely must do something about it. In response, the California legislature, demonstrating its characteristic leadership on tough issues, passed one of the nation’s first new laws addressing fake news. The law decisively calls for a government study of the problem…and only if the private sector pays for it. Wait, what???

* * *

Yesterday, the California legislature passed SB 1424. It is now awaiting Gov. Brown’s signature (which is always a tossup). The law requires the AG to assemble a working group consisting of “at least one member of the Department of Justice, Internet-based social media providers, civil liberties advocates, and First Amendment scholars.” This group will be charged with studying “the problem of the spread of false information through Internet-based social media platforms” and drafting a model strategic plan to mitigate this.

Who cares about this work product? Well, everyone would care greatly if the legislature mandates the plan’s requirements. However, it’s very likely that the First Amendment will prevent that. Accordingly, social media providers almost certainly will be free to adopt or ignore the plan as they choose.

It’s possible this plan will be so brilliant that social media providers will eagerly adopt it. But if the social media providers really wanted to voluntarily adopt an anti-fake news plan, they could easily undertake this effort without any “help” from the California legislature or the state AG. Indeed, having the AG’s office running the project seems likely to unhelpfully steer the discussion towards enforcement and regulatory considerations, not the wide range of technological or marketplace considerations that are probably bigger levers to combat false online information. About the only benefit I see from a state-mandated and -coordinated study is that it might minimize the risks that the conversation will violate antitrust law or constitute illegal collusion.

But here’s the kicker–someone is going to have to fund this effort, and it won’t be the California government. While the advisory group’s pricetag should be de minimis for the world’s fifth largest economy, apparently the legislature didn’t believe in the report’s value enough to actually pay for it. Instead, the law says that the AG isn’t obligated to do anything until it receives “sufficient private funding;” and if no one ponies up by Dec. 31, 2021, then the law expires.

The private funding requirement was added just this week, and with it, the law passed immediately. After all, if the effort won’t cost the government anything, what’s not to like? I don’t know the backstory, but I’m guessing the private payment mechanism emerged when someone represented to the California legislature that they would be the private benefactor. But who is this mystery benefactor? If it’s a social media provider, then I’m even more confused why they would prefer this law over simply running and funding the initiative privately.

While the law seemingly gives California something for nothing, it is truly free? The law encourages future enforcement targets to provide financial support to the AG’s office–payoffs that create potentially significant conflicts-of-interest or opportunities to curry financial favor with regulators. As much as I hate fake news, I hate government corruption even more, and this law does far more to encourage the latter than combat the former.

Side note: this is the second time in the past week that the California AG has apparently objected to unfunded Internet law-related mandates being imposed on it by the California legislature. Last week, AG Xavier Becerra wrote a blistering letter to the California legislature about the California Consumer Privacy Act, complaining that the law’s financial burdens were more than the DOJ could bear. I can’t tell if the California DOJ is facing bona fide resource constraints, or if the AG is just making negotiating ploys to gross up the DOJ’s budget.

Despite my criticisms, if anyone reading the post is involved in the initiative, I’m willing to be considered as one of the “First Amendment scholar” participants. I may be skeptical about the process leading to the advisory group, but ultimately I’m as interested in developing workable solutions to combat “fake news” as anyone.