New York would be able to hold social media companies accountable for promoting disinformation, eating disorders and “other unlawful content that could harm others” under a new proposal designed as a workaround to federal law.
The new bill – sponsored by state Sen. Brad Hoylman (D-Manhattan) – comes as lawmakers across the country scramble to address harms attributed to Facebook and Instagram which were exposed in a series of leaks by whistleblower Frances Haugen earlier this year.
But under Section 230 of the federal Communications Decency Act, tech companies are protected from being held liable for the content posted by users – and how they police it.
“We need real world solutions to the growing problems of online disinformation and hate speech. Throwing your hands up and saying nothing can be done isn’t sufficient. People’s lives are endangered everyday and nobody’s being held accountable,” said Hoylman, who introduced the bill on Dec. 3.
“The amount of online disinformation and hate speech being promoted by social media platforms — for profit — is abhorrent.”
The legislation adds a section to the state’s penal code, adding a new cause of action for public nuisance allowing the state Attorney General, city corporation counsels or private citizens to bring lawsuits after companies or individuals for “knowingly or recklessly” contributing to things like promoting self-harm or vaccine disinformation.
“No person, by conduct either unlawful in itself or unreasonable under all circumstances, shall knowingly or recklessly create, maintain or contribute to a condition in New York state that endangers the safety or health of the public through the promotion of content, including through the use of algorithms or solely automatic systems that prioritize content by a method other than solely by time and date such content was created,” reads the legislation.
But tech law experts told The Post that the bill raises serious constitutional concerns and would almost surely be overturned in court.
“COVID misinformation, political misinformation, and many other categories of ‘false’ or harmful information are protected by the First Amendment,” said Eric Goldman, an internet law professor at Santa Clara University School of Law in Silicon Valley.
“This bill’s attempt to restrict the dissemination of that constitutionally protected content is facially unconstitutional.”
While Hoylman’s bill tries to distinguish between sites allowing users to post certain content and promoting that content by recommending it through features like Instagram’s explore page and YouTube’s recommendations bar, Goldman believes that distinction wouldn’t hold up in court.
“The distinction between ‘hosting’ and ‘amplifying’ content is incoherent,” Goldman said.
“This bill sponsor has taken an incoherent idea and embraced its most censorial option.”
David Greene, a staff attorney and civil liberties director at the Electronic Frontier Foundation, also said the bill raises First Amendment concerns and added that determining what content counts as coronavirus-related misinformation is “really hard.”
“Public health guidance changes really quickly because what we know changes really quickly,” Greene told The Post.
“It’s really very difficult to impose liability in an environment where the truth can be hard to grasp at any point in time.”
Still, lawmakers are divided on how to address these issues without violating free speech protections, as Big Tech appears to moderate itself.
Facebook fact-checkers in 2020 slapped a “false information” tag on a Post op-ed arguing that the coronavirus “may have” leaked from a lab.
This May, the site was forced to reverse that ban after the Biden administration ordered US intelligence agencies to investigate if the virus had indeed been leaked from a Chinese lab.
An October Post investigation based on documents leaked by Haugen showed that Instagram knows that the app recommends pictures and videos that promote eating disorders to vulnerable teens .
A follow-up in December showed that the app is still making sickening content available to teens despite its promise of a crackdown.
Other documents leaked by Haugen showed that Facebook has struggled to crack down on human trafficking and drug cartels on its sites, among other issues.
Hoylman’s office said as of now there’s no companion bill in the state Assembly, but added there’s “a lot of interest in addressing this problem.”