David Sloss is the John A. and Elizabeth H. Sutro Professor of Law at the Santa Clara University School of Law. Views are his own.
Congress should enact legislation to prohibit agents of authoritarian states from speaking on U.S.-based social media platforms.
Democracy is declining around the world; authoritarianism is gaining ground. The V-Dem Annual Democracy Report confirms that the world is now “in a third wave of autocratization. . . . The number of citizens affected by autocratization surged from 415 million in 2016 to 2.3 billion in 2018.” In 2018, the number of autocratizing countries was greater than the number of “advancing countries for the first time since 1978.”
Global dissemination of social media technology is contributing to the decline of democracy and the rise of authoritarianism. After the Arab Spring in 2011, several commentators expressed optimism that social media could be a powerful new tool to promote democracy. Unfortunately, we have since learned that authoritarian rulers are using social media to suppress democratic dissent at home and to interfere with democratic elections abroad.
According to the New York Times, a digital marketing company in Egypt launched “a covert operation to praise Sudan’s military on social media.” “The secretive Egyptian effort to support Sudan’s military on social media . . . was just one part of a much bigger operation that spanned the Middle East and targeted people in at least nine Middle Eastern and North African countries.” A report from the Computational Propaganda Research Project says: “In 26 [authoritarian] countries, computational propaganda is being used as a tool of information control . . . to suppress fundamental human rights, discredit political opponents, and drown out dissenting opinions.”
Moreover, authoritarian states use social media to interfere with elections in democratic countries. The Mueller report provides extensive documentation of Russian interference in the 2016 U.S. presidential election. An intelligence report prepared by the Australian government concluded that the Chinese “Communist Party has attempted to compromise Australia's major political parties for the past decade.” One knowledgeable expert stated: "Under the uncompromising leadership of President Xi Jinping, China's activities have become so brazen and so aggressive that we can't ignore it any longer." The Computational Propaganda Research Project reports that China, India, Iran, Pakistan, Russia, Saudi Arabia, and Venezuela are all using “computational propaganda for foreign influence operations.”
U.S.-based social media platforms remain the preferred platforms for authoritarian rulers who use social media to advance their political goals, both domestically and internationally. Their reliance on U.S. platforms provides the U.S. government an opportunity to shift the playing field in favor of democratic governance. Congress should enact legislation for U.S.-based social media platforms to make it more difficult and costly for authoritarian rulers to use those platforms to suppress democracy at home and to subvert democracy abroad.
Under my proposed legislation, the U.S. government would divide all countries into three groups: democratic states, authoritarian states, and states that are neither authoritarian nor democratic. Citizens and nationals of democratic states could continue to engage in unrestricted free speech on social media. However, agents of authoritarian states would be prohibited from speaking on U.S.-based social media platforms. Other categories of speakers would be subject to a mandatory disclaimer regime. For example, citizens of authoritarian states who are not state agents could speak on social media, but some of their messages would be subject to a prominent warning: “This message is transmitted by a citizen or national of an authoritarian state.”
To enable regulators to discriminate correctly among different categories of speakers, U.S.-based social media platforms would be required to implement a registration system. The proposed registration system would require all persons who engage in public communication on social media—including individuals, companies, and other entities—to register and to declare their nationalities. Individuals who use social media exclusively for private communication would be exempt from the registration requirement.
A rigorous registration system would include the following elements: all registered users are required to disclose identifying information to social media companies, including their nationalities; companies are required to share identifying information with the FBI (for registered domestic users) and with foreign governments (for registered foreign users); verification procedures to confirm that registered users provide truthful and accurate information; companies are required to close accounts operated by individuals who provide false registration information; and sanctions for repeat offenders—those who repeatedly provide false or misleading registration information—and for foreign countries who support such repeat offenders.
The proposed registration system is likely to elicit three types of objections, relating to privacy, anonymity, and the chilling effect on free speech. To protect privacy, the legislation should include rigorous safeguards for both data security and informational privacy to ensure that disclosure of identifying information does not enhance the government’s power to spy on innocent social media users. To protect anonymity, the legislation should preserve the right of individuals to speak pseudonymously on social media platforms. However, even if the legislation includes the most stringent possible measures to protect privacy and anonymity, some people would presumably choose to stop using social media to avoid the required disclosures. Thus, even with the most rigorous possible safeguards, a social media registration system would have a chilling effect on speech on social media.
In my view, though, the benefits of a well-designed registration system outweigh the costs. Absent a social media registration system, agents of authoritarian states will continue using U.S.-based social media platforms to suppress democratic dissent at home and to interfere with democratic elections abroad. A well-designed registration system would not completely block such activities, but it would make it much more difficult and costly for authoritarian states to continue weaponizing social media to attack democracy. If the United States is to remain faithful to its democratic ideals, Congress owes it to freedom-loving peoples everywhere to enact legislation to prevent authoritarian states from using U.S.-based social media platforms to subvert democracy.