Fake News in the News Yet Again

On January 11, 2017, the term “fake news” entered the mainstream discourse when Donald Trump, during his first press conference as President-elect, refused to take a question from CNN reporter Jim Acosta and told him, “You are fake news.”  The source of that outburst can apparently be traced to a 35-page unverified document based primarily on memos complied by a former British intelligence operative that CNN had publicized.  President-elect Trump immediately blasted the report through his favorite medium of communication, tweeting, “FAKE NEWS – A TOTAL POLITICAL WITCH HUNT!”

On October 21, 2017, more than nine months after President Donald Trump’s inauguration, the President referenced fake news in two separate tweets on two separate issues, proving the remarkable durability of a phrase that has consumed lawmakers, the social media industry, and the general public.  And with the recent revelations that Russia sought to influence the 2016 Presidential election on behalf of Trump, U.S.  lawmakers introduced legislation on October 19, 2017, to extend rules governing political advertising on television, print, and radio to cover social media such as Facebook.

The “Honest Ads Act,” introduced by Senators Amy Klobuchar (D-MN), Mark Warner (D-VA), and John McCain (R-AZ), would expand existing election law covering television and radio outlets to apply to paid internet and digital advertisements on platforms such as Facebook, Twitter, and Google.  The law would require digital platforms with at least 50 million monthly views to maintain a public file of all electioneering communications purchased by anyone spending more than $500.  It would also require online platforms to make “all reasonable efforts” to ensure that foreign individuals and entities are not buying political advertisements to influence the U.S.  electorate.  Social media companies have begun their lobbying efforts, and Facebook, Twitter, and Google all plan to send their general counsels to testify before the Senate and House Intelligence Committees on November 1st.

Although critics often struggle to come to a consensus on what exactly constitutes “fake news,” almost everyone agrees it is a problem that needs to be addressed, particularly in an era where social media makes it too easy for anyone to publish information on the Internet.  Just as the very concept of fake news has morphed and changed over time, there appear to be no easy solutions to stopping fake news.

One solution would be to address the issue through a legal or regulatory framework, much like the Honest Ads Act that was just introduced.  But there are problems with such an approach.  Legal solutions to fake news are likely to conflict with strong constitutional (the First Amendment) and statutory (section 230 of the Communications Decency Act) protections for speech.  MSNBC’s chief legal correspondent has suggested that the Federal Trade Commission should regulate fake news under its statutory authority to police “unfair or deceptive acts or practices in or affecting commerce.”  This would be a difficult argument for the FTC to make, for the agency would have to show that fake news is a commercial product despite the fact that people are for the most part not paying to read it.

For the more libertarian folks out there, a potential market-based approach exists.  Using the markets as a regulator, one can imagine new funding models for online platforms that do not rely on advertising and thus are not incentivized to promote fake news.  Such a market-based solution, however, is likely to only impact a subset of fake news.

Another solution may be found in computer code.  Since algorithms are part of what spread fake news, it may be possible to create algorithms that help root out fake news.  For example, an algorithm can be developed to help determine when a website was created – if a website was only created a week ago, it is much more likely that is a less trustworthy site.  Journalism non-profit First Draft News is working with Google and Facebook to explore possible codes that can help stop the spread of fake news.  Of course, this brings up the concern of censorship, but Claire Wardle of First Draft News argues that there is a difference, explaining “I’m talking about a bit like a spam folder in your email, those emails still sit there, but you have to go to your spam folder to look for it.”  Code can also be used to design technical fixes to help users flag fake news and to allow platforms to whitelist genuine news and satire sources while blacklisting fake-news sources.

Finally, social norms may have a role to play – for example, having platforms display disclaimers and warnings alongside inaccurate information.  Although such community solutions hold promise, they are extremely difficult to create through political mechanisms and even harder to enforce online.

In today’s digital age, inaccurate information has never been easier to produce and access, and has unfortunately become even harder to distinguish.  As long as Donald Trump is President, fake news will be prominent in public discourse, and lawmakers, industry, and the general public must work together to solve this complex issue.

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