With increased attention on the development and use of bots, California’s new bot law holds some key takeaways. Most importantly, California is setting an example for other state or national laws, but does it go far enough?
Background of the Law Regulating Bots
On September 28, 2018, Governor Jerry Brown approved Senate Bill 1001, regulating the interaction of bots with humans.
The bill makes it unlawful for a person to use a bot to communicate with another person online in California with the intent to mislead the other person about its artificial identity for the purpose of knowingly deceiving the person about the content of the communication in order to incentivize the purchase or sale of goods or to influence a vote in an election. §17941(a).
Expanding on prior California law, SB 1001 is in furtherance of laws which govern truthful communications and fair dealing. CA Business and Professions Code §17500 generally prohibits businesses from making statements that are untrue or misleading in communications regarding the sale of goods and services.
Other legislative ancestors include: the prohibition on bad faith registration of a confusingly similar domain name (§17525); the prohibition on sending email advertisements with a falsified, misrepresented, or forged header information or misleading subject line (§17529.5); the prohibition on using a device to send unsolicited advertisement (§17538.43(b)(1)); the requirement to clearly mark date, time, and identity of person sending message via telephone facsimile machine (§17538(c)(1)); and the requirement to file a fictitious business name for persons doing business under a fictitious name available to the public (§17900).
Support and Opposition
The bill history reveals a few key points:
Opposers of the bill include various industry associations and others who primarily argue that aspects of the bill are vague. They further argue it places onerous burdens websites. The requirements could diminish the functionality and the speed of impacted websites while failing to stop bad actors.
Supporters argue that children are at risk of being targeted on social media platforms. These platforms are more likely to carry harmful messages, political propaganda, ethnic discrimination, or false information.
Earlier versions of the bill mention additional notice and reporting provisions. Platforms would have to enable users to identify and report bots. Then platforms would investigate reports and determine whether or not to disclose or remove the bot within 72 hours. Also platforms would provide the CA Attorney General with bimonthly reports detailing notices received and actions taken.
Exceptions?
The bill also contains two exceptions. The first is where a bot clearly and conspicuously discloses to an individual it is a bot. If disclosed, could a bot conceivably communicate with the purpose of knowingly deceiving?
The second exception is a safe harbor. Online platforms, web hosting, or internet service providers, including social networks, with 10,000,000 or more unique monthly users are excluded from compliance.
Interestingly, very few companies have such a volume of users. Those that do are companies such as Google, Facebook, Amazon, or Twitter, some of the very companies best suited to combat the spread of deceptive bots. This is so despite the resources these companies have to develop and deploy scalable notice and reporting tools to combat deceptive bots. Much of the public debate about the use of bots to deceive and the need for tightened rules involves one of these companies. The legislature has in effect decided whether the onus should be on the platform or the individual deploying the bot on the platform. Trying to regulate individuals deploying bots might turn out to be a moving target.
Regardless of the debate, CA’s SB 1001 is a move in the direction of increased regulation of deceptive artificial actors online.
Navigating a Complex Legal Landscape
If you plan to use bots in your business our professionals are able to assist you in navigating the increasingly complex laws around privacy, data, and the best business practices as they emerge. Foundry Law Group offers a targeted approach to legal planning and if you are planning on using bots or have already deployed bots please contact us today to see how we might be of assistance navigating this new law.