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Elizabeth Warren's Criminal Penalties for Online Misinformation are a Disaster Waiting to Happen

Elizabeth Warren's Criminal Penalties for Online Misinformation are a Disaster Waiting to Happen

Presidential contender Sen. Elizabeth Warren (D-MA) has positioned herself as a people’s champion in the fight against Big Tech. In the weeks following a battle of hearsay with her rival Sen. Bernie Sanders (I-VT), Warren released her latest plan to have the government impose criminal penalties on those who publish online misinformation, an effort which could unlawfully destroy the world wide web as we know it.

“Disinformation and online foreign interference erode our democracy, and Donald Trump has invited both,” Warren explained in her extensive Twitter thread. “Anyone who seeks to challenge and defeat Trump in the 2020 election must be fully prepared to take on the full array of disinformation that foreign actors and people in and around the Trump campaign will use to divide Democrats, suppress Democratic votes and erode the standing of the Democratic nominee — and I’ve got a plan to do it. I will push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote.”

It’s important to acknowledge how the language of protecting American democracy is appealing, especially against hostile actors who may publish false advertisements in an effort to manipulate the vote. It was Noam Chomsky who said, “propaganda is to a democracy what the bludgeon is to a totalitarian state”, and few institutions have the bludgeoning power of Amazon, Apple, Google, Facebook, and Twitter. Nevertheless, Warren’s persistence could result in an unlawful disaster set to violate both the First Amendment’s protections for freedom of speech and Section 230 of the Communications Decency Act protecting online platforms from being prosecuted for the crimes of their third-party users.

This is not the first time Warren has come under fire for her stances on reforming Section 230, of course. She was among those who voted for President Trump’s SESTA and FOSTA, the highly controversial anti-sex work bills which made Section 230 exemptions if an online platform was found enabling sex work. This resulted in the destruction of global prostitution freedoms on sites such as Craigslist and Backpage as well as the removal of safety tools that protected sex workers regardless of their legal status, all in the name of destroying sex-trafficking (though in actuality sending it further into the black market). Warren has indicated her regrets about SESTA and FOSTA for these very same reasons, yet her new plan for misinformation repeats the same mistakes.

Warren is clear in framing her argument in the context of Russiagate, the ever-complex election interference scandal where thousands of posts from major social media platforms were bought and published by way of the Russian Internet Research Agency (IRA), releasing them under fraudulent accounts with a “one-to-one ratio of junk news to professional news” and the intention of “sowing discord” between black, conservative, liberal, Muslim American, LGBTQ+ and younger people to either boycott the election or vote a different way. Whether they had an empirical sway over the election, however, has yet to be proven. 

While it’s easy for former presidential candidate Hillary Clinton to cry and cry about losing in 2016 to the Russians alone, it’s important to understand the total expenditure of these ad operations only ever amounted to $70,000, which is truly an itty bitty drop in the $5 billion electoral bucket. Clinton, keep in mind, outspent then-candidate Trump five-to-one. The story of her loss (not to mention election security writ large) is more complicated than KGB Ruskies deploying meme magic and lies. And crafting a bill without the full story, let alone specifics on how to regulate fact and fiction without infringing on freedom of speech, is a considerable risk to take. 

This isn’t to say the behavior of would-be disinformation peddlers is justified, of course, but it doesn’t mean their actions necessarily rise to the level of criminality either, especially in a context where normal Americans could face the same punishment as propagandists for simply sharing misleading information. I doubt legislation, generalized to target all electoral misinformation against users and platforms alike, would limit itself to just foreign interference and simple voting dates. The vagueness by which her camp defines truth vs lies, misinformation vs disinformation, falsehoods vs alternative facts are just ripe for abuse, begging the question of “who watches the watchmen” if those in the White House, the Kremlin, and Silicon Valley are all playing the lying game?

We only have her word as being a truth-keeper. As part of the policy, Warren took a pledge not to employ disinformation in her campaign in any way. “Anyone who seeks to be the Democratic nominee must condemn the use of disinformation,” Warren says in the post, “and pledge not to knowingly use it to benefit their own candidacy or damage others.” This is considerably ironic given her own shady past, be it her infamous 1/1024th Native American scandal or her more recent allegations against Sanders, engaging in he said, she said over whether he was an undercover sexist who said a woman couldn’t win the presidency. There is undoubtedly an issue when it comes to online lies, but Warren is certainly no angel in this regard.

“Disinformation erodes our democracy,” Warren’s plan concludes, “and Democrats must have a plan to address it. Donald Trump has welcomed foreign interference in our elections, inviting interference from a host of countries that have an interest in the outcome, including Iran and China. He’s currently facing impeachment for putting his own political interests over the national interests of the United States — and there is every indication that if he is not removed from office, he will continue to do so.” Whether such a plan can limit itself to objective facts, not just inconvenient truths, will remain to be seen in the months to come.