State Power to Regulate Social Media Companies to Prevent Voter Suppression
53 U.C. Davis L. Rev. 1793 (2020)
38 Pages Posted: 23 Apr 2020
Fake social media accounts and ads did not merely polarize the American electorate in 2016 — these tactics also targeted and suppressed Black votes. While African Americans made up just 12.7% of the United States population, Black audiences accounted for over 38% of U.S.-focused ads purchased by the Russian Internet Research Agency and almost half of the user clicks. The social media accounts generally built a following by posing as being African American-operated and by paying for ads that social media companies distributed largely to Black users. Near Election Day, the accounts urged African Americans to “boycott the election.” Federal policymakers have failed to respond immediately to enact strong and clear laws to prevent similar deceptive practices and voter-suppression schemes in the future, and thus States should take the initiative. State lawmakers should not be deterred by arguments that Section 230 of the federal Communications Act of 1934 “immunizes” social media companies from State liability. This Essay explains that Section 230 does not limit the power of States to hold social media companies legally responsible for using data collection and algorithms to target protected classes of voters with suppressive ads. By using such techniques, social media companies contribute materially to discrimination and are thus ineligible for Section 230 immunity.
Keywords: voter suppression, deceptive practices, discrimination, election interference, Internet Research Agency, Section 230, Communications Decency Act, CDA, Communications Act of 1934, ad targeting, ad delivery, microtargeting, Good Samaritan, immunity, interactive computer service, information content p
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