How misinformation leads to bad legislation

I was struck by a story on CNN saying “Texas has declared open season on Facebook, Twitter and YouTube with censorship law”.

It wasn’t that Texas has introduced legislation that impacts the technology giants; Canada has a series of legislative proposals being considered to control online content. Indeed, we are seeing a wide variety of democracies around the world place restrictions or consider legislation to rein in, tax, and impose limits on some of the freedoms under which internet applications operated.

At the core of Texas House Bill 20 is a section examining discourse on social media platforms:

(a) A social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:

  1. the viewpoint of the user or another person;
  2. the viewpoint represented in the user’s expression or another person’s expression; or
  3. a user’s geographic location in this state or any part of this state.

The term “censor” is defined in the legislation as “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression”

I understand the intent behind the law. Whether true or not, many conservative voices believe their views are unfairly targeted by platforms.

I was more disturbed by a failure to understand the technology and an apparent lack of consideration of the potential unintended consequences arising from the law. For example, if a social media platform may not “censor a user”, what does that mean for efforts to limit spam-bots on social media feeds?

As described by CNN, “in oral arguments at the Fifth Circuit Court of Appeals, a three-judge panel confused social media platforms with internet service providers; disputed that Facebook and Twitter are websites; and expressed surprise that a service such as Twitter could “just decide” what content appears on its platform as a matter of course.”

The preamble of the bill says “social media platforms function as common carriers, are affected with a public interest, are central public forums for public debate, and have enjoyed governmental support in the United States”. What are the implications of such a definition?

While other commentators will certainly discuss the legislation and its further legal challenges, I’d like to look at how legislators and judges get so confused by some basic technology concepts.

It’s actually quite understandable. It’s impossible for them to be experts on every segment of the economy. They need to rely on advice from advisors. In most cases, legislation is drafted with the assistance of subject matter experts.

Sometimes, polemics from activist campaigns can overwhelm the filters of legislative debate. Clicktivist campaigns, based on barely a passing fidelity to the truth, can drive misinformation among legislators. A recent campaign from Canada’s OpenMedia organization claims “The copyright extension would block the works of dozens of established authors including Marshall McLuhan, Gabrielle Roy, and Margaret Laurence. Their works would be buried for generations.”

Extending copyright doesn’t block or bury any of these works. The campaign is simply not true.

Committee appearances by academics are also not immune from deeply flawed understandings of complex business, regulatory, and technology issues. Academics and legislators alike continue to be unaware that foreign ownership of telecommunications was liberalized a decade ago. A number of academics have confused “EBITDA” (Earnings Before Interest, Tax, Depreciation and Amortization) with “Profit”, and that has found its way into some legislative committee discussions, not recognizing that in capital intensive businesses, such as facilities-based telecommunications carriers, the interest, depreciation, and amortization amounts are substantial and require strong EBITDA to support continued investment.

Ten weeks ago, I wrote about misunderstandings and disinformation impacting debates of Parliament Committees in “Truthiness and Canada’s Telecom Industry” and I have published a few blog posts [such as here, here, and here] trying to dispel common myths surrounding Canada’s telecommunications industry.

I have written before that “Sometimes it’s easiest to simply respond to the loudest voices. There are lots of instances where we see government bodies respond to groups, large and small, making lots of noise.”

It’s even more important to ensure polemics don’t infect legislators abilities to filter fact from fiction.

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