Faking it: we should make manipulating algorithms for political purposes a crime

There has been a lot of noise about “FAKE news” recently, including its ability to influence the political process. But now some authorities are fighting back.

So far this battle is mainly being played out on the arena of national defence strategies. Little attention has been directed at what the law can do to help combat this destructive force.

We think it would be beneficial to introduce a new criminal offence of algorithmic manipulation for political gain.

Algorithmic manipulation

People’s views – including political ones – are subjected to manipulation in a variety of ways. However, we are particularly vulnerable when such manipulation occurs online.

When we’re online, it’s not easy to understand why we see the particular content we are served. Much of what we are shown by search engines and social media is driven by algorithms, and these are largely hidden from view.

Imagine that a marketing company manipulates these algorithms to artificially dictate the search results, tweets and Facebook posts you see, all to communicate content favouring only one brand of product.

Such manipulative and misleading commercial communication is already regulated by law. However, influencing the search results, tweets and Facebook posts you see to favour a particular political view, person or party is not.

This is simply astonishing, because arguably a lot more is at stake in the political than the commercial arena.

Focus on the means, not the content

We realise we’re in dangerous territory when regulating non-commercial speech. So if we want to deter certain conduct in this sphere, then any offence we create should be narrow and specific.

Some countries already have in place criminal offences that may be of relevance. Canadian law, for example, contains the following criminal offence:

Every one who willfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

What we propose is different. We are cautious of provisions such as this as they may be vulnerable to abuse. Instead of focusing on the acceptability of the content, as is done for the mentioned Canadian offence, we turn our attention to the acceptability of the method used to create or facilitate that content.

Focusing on the method is a first way to limit the scope of any offence, while still making it effective in deterring exactly the secretive and invisible manipulation we are concerned about.

The proposed offence

We propose the creation of a new offence. So how should we define such an offence?

There are several possibilities, but to keep it simple, and to draw upon the wording used in other settings in the Criminal Code Act 1995 (Cth), we propose the following:

A person commits an offence if the person does anything with the intention of dishonestly obtaining a political gain from algorithmic manipulation.

Terms used need to be carefully defined in the law itself. Thus “political gain” would here include “undermining, or favouring, a political view, organisation or individual”.

We also envisage that a non-exhaustive definition of “algorithmic manipulation” would be useful. Clear evidence of intent would be an essential element of the offences.

Obvious enforcement difficulties

We are not naïve about the obvious difficulties involved in enforcing the law we have outlined above. Where the manipulation originates abroad, effective enforcement may require assistance by the very state that is behind the crime in the first place.

And even where the algorithmic manipulation is domestic, proving its existence and identifying the responsible parties will not be easy.

However, these difficulties should not prevent us trying. And law serves different functions, one of them being to communicate societal standards.

If the law is punchy enough, it will have a general deterrent effect. The goal of clearly articulating that algorithmic manipulation for political gain is unacceptable would be achieved the very day such activities are made a criminal offence.

A delicate balancing

Any restriction on political activity is a sensitive matter. It goes to the heart of a democratic society. And the last thing we want is to create a tool that may be used to repress a healthy political debate.

However, the question is whether we can retain a healthy political debate in an era of unrestrained algorithmic manipulation. Given recent developments, we fear that we cannot.

As Professor Lawrence Lessig famously noted almost 20 years ago: “Left to itself, cyberspace will become a perfect tool of control.”

This seems to be a particularly apt observation when placed in the context of algorithmic manipulation for political gain. We think it is possible to fashion a new offence that specifically and narrowly applies to hidden manipulations of the internet that dishonestly confer political gain, while not deterring free speech and debate.