California wants all of the bots in the room to please stand up. Last week the state enacted a bill that makes it illegal to use undeclared bots to incentivize a sale or influence an election. A bot—at least according to California’s new law—is an automated online account where most of the posts or actions taken are not the result of an actual human being.
After bots were used to spread misinformation during the presidential election of 2016, social media giants like Facebook and Twitter were left with the unenviable task of separating flesh-and-blood users from the ghosts in the machine. In an entry posted to the company’s blog earlier this week, Twitter said that it challenged an average of 9.4 million accounts each week in the first half of September in an effort to identify automated presences.
Kirk Nahra, a privacy and information specialist with Wiley Rein, doesn’t expect law firms to encounter nearly as many cases related to the new bot law. He thinks that California might be more interested in making a statement than having its attorney general chase down fake accounts.
“California passes a million laws related to the internet and privacy and security and those kind of things. Some of them you never hear from again after they’re passed. Some of them get picked up in other places,” Nahra said.
The law new doesn’t outlaw bots entirely, just those “with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving.” Nahra called it a high standard, one unlikely to apply to legitimate companies interested in legal compliance or trouble unsavory entities working outside the system.
“My guess is you probably have some other states that try and do something similar just to make the same kind of statement, but I’ll be a little surprised if it changes the behavior of anybody whose behavior we actually care about in this context,” Nahra said.
This rationale might preclude the law from facing the kinds of legal challenges encountered by the net neutrality bill California Gov. Jerry Brown signed on Sunday, which has already been the subject of lawsuits originating from both the Department of Justice and the telecom industry. Legitimate businesses are unlikely to argue for their right to deceive costumers and hackers seldom ask permission to continue being hackers.
If anything, Nahra could envision a potential First Amendment argument against the bot law. “I just don’t know who the plaintiff is in that case. It’s not a Russian hacker who wants to influence a senatorial election out there,” Nahra said.
The law won’t officially take effect until July 1, 2019. Nahra thinks the extra padding might be intended to give businesses time to get up to speed. Firms could be called upon to act in an advisory capacity by clients looking to review their legitimate bot use and prevent accidental infractions.
“I could absolutely see that happening with some legitimate companies who use this as just a ‘let’s make sure we’re not doing anything wrong’ element. I sort of hope that happens,” Nahra said.