Sen. Dianne Feinstein has introduced the Bot Disclosure and Accountability Act, a proposal to regulate social media bots in a roundabout fashion. The bill has several shortcomings.
Automation of social media use exists on a continuum, from simple software that allows users to schedule posts throughout the day, to programs that scrape and share information about concert ticket availability, or automatically respond to climate change skeptics. Bots may provide useful services, or flood popular topics with nonsense statements in an effort to derail debate. They often behave differently across different social media platforms; Reddit bots serve different functions than Twitter bots.
What level of automation renders a social media account a bot? Sen. Feinstein isn’t sure, so she’s relinquishing that responsibility to the Federal Trade Commission:
The term ‘‘automated software program or process intended to impersonate or replicate human activity online’’ has the meaning given the term by the [Federal Trade] Commission
If Congress wants to attempt to regulate Americans’ use of social media management software, they should do so themselves. Instead, they would hand the hard and controversial work of defining a bot to the FTC, dodging democratic accountability in the process. Moreover, the bill demands that the FTC define bots “broadly enough so that the definition is not limited to current technology”, virtually guaranteeing initial overbreadth.
While the responsibility of defining bots is improperly passed to the FTC, the enforcement of Feinstein’s proposed bot disclosure regulations is accomplished through a further, even less desirable delegation. The Bot Disclosure and Accountability Act compels social media firms to adopt policies requiring the operators of automated accounts to “provide clear and conspicuous notice of the automated program.” Platforms would need to continually “identify, assess, and verify whether the activity of any user of the social media website is conducted by an automated software program”, and “remove posts, images, or any other online activity” of users that fail to disclose their use of automated account management software. Failure to reasonably follow this rubric is to be considered an unfair or deceptive trade practice.
This grossly infringes on the ability of private firms, from social media giants like Facebook to local newspapers that solicit readers’ comments, to manage their digital real‐estate as they see fit, while tipping the balance of private content moderation against free expression. Social media firms already work to limit the malicious use of bots on their platforms, but no method of bot‐identification is foolproof. If failure to flag or remove automated accounts is met with FTC censure, social media firms will be artificially incentivized to remove more than necessary.
The bill also separately, and more stringently, regulates automation in social media use by political campaigns, PACs, and labor unions. No candidate or political party may make any use of bots, however the FTC defines the term, while political action committees and labor unions are prohibited from using or purchasing automated posting software to disseminate messages advocating for the election of any specific candidate. It is as if Congress banned parties and groups from using megaphones at rallies. Would that prohibition reduce political speech? No doubt it would. How then can the prohibitions in this bill comport with the constitutional demand to make no law abridging the freedom of speech? They cannot.
Feinstein’s bill attempts to automate the process of regulating social media bots. In doing so, it dodges the difficult questions that attend regulation, like what, exactly, should be regulated, and foists the burden of enforcement on a collection of private firms ill‐equipped to integrate congressional mandates into their content moderation processes. Automation may provide for the efficient delivery of many services, but regulation is not among them. Most importantly, the bill does not simply limit spending on bots. It prohibits political (and only political) speech by banning the use of an instrument for speaking to the public. Online bots may worry Americans, but this blanket prohibition of speech should worry us more.
