The US Senate Judiciary Subcommittee on Crime and Terrorism, on October 31, 2017, held a public hearing with the legal representatives of the technology companies Facebook, Google, and Twitter regarding the influence of the Russian government, through third parties, on the 2016 USA Presidential elections.

According to the debates held by the US Senate and the news broadcast by the expert media, the Russian actions were carried out through the purchase of advertisement on Facebook and Google, as well as the creation of fake profiles and the use of robots to spread fake content that stimulated hate speech among the North American voters, causing a divide in the electorate.

For example, there was the sponsoring of controversial content related to racism, immigrants, and guns.  Another accusation was of the hacking of emails and the leak of private and confidential information from the presidential candidate Hillary Clinton. 

The USA senators were seeking solutions for the problem of the influence of Russian government on the elections in the USA. The discussion revolved around the manipulation of democracy and the risks to national security due to the abuse in the use of social networks during the presidential elections. 

The legal representatives of Google, Facebook, and Twitter publicly acknowledged the Russian influence on the USA presidential election.

The technology companies stated that they are adopting transparency measures regarding advertisements on their social media networks. They presented some measures for self-regulation of social media, such as verifying users’ accounts. They showed themselves willing to cooperate with the US Congress to improve the legislation applicable to social media. They also said that they are making investments in intelligence to detect terrorist threats and hate speech on social media networks.

One of the legal representatives mentioned the law passed by the State of California, known as the California Disclose Act, with rules on the transparency of paid ads in digital advertising related to politics, with the identification of the financiers and donors of electoral campaigns. 

The relevance of this theme raised in the USA, from a legal standpoint, involves the regulation of technological platforms such as social media networks and search engines on the Internet. 

Social media and search engines are technology companies that do not produce content, as stated by their legal representatives. Thus, they are not subject to the laws that apply to traditional media: newspapers, magazines, television, and radio. The classical legislation holds mechanisms to balance out the democratic game and electoral disputes, in particular ensuring equal conditions in elections, with rules on the financing of electoral campaigns. 

In any democracy, there are rules to protect the free flow of information and the dissemination of truthful information.  However, in the United States, the misrepresentation of information or fake content was used to manipulate public opinion in the 2016 presidential elections, under foreign influence. Thus, the vulnerability of democracy given the abuse of the technological platforms, and the need for adequate measures to hold accountable the technology companies that have global impact.  

Apparently, the core issue of the public debate is to know if the self-regulation by the technology companies that own these platforms, known as social media networks, is suffice from a democratic perspective. In other words, can the public trust solely on the responsibility of the Big Techs: Google, Facebook and Twitter? 

Or, is it necessary to have new sectoral regulation of social media with rules to avoid abuses of these platforms, and to improve the rules of transparency related to the purchase of ads on social media?

In the latter case, the fundamental need is to balance the tension between legislative regulation of the technology companies and the risk of censorship of the freedom of expression of the users of these platforms. 

First, given the constitutional guarantees of free enterprise, can the government regulate technological platforms?

Second, if this regulation of social media and search engines is possible under the USA Constitution, what is the proper weighted measure between freedom of expression and the protection of democracy?

The business model of these USA technology companies, especially given their market value, is based on the number of users connected to each platform. The greater the number of users of the technological platform, the greater economic value of the company. 

But, although the business model is protected under the guarantee of free enterprise, it is clear that any legislative limitations to the freedom of the technology companies’ business model may be passed to protect other relevant constitutional assets, such as the democratic principle, and to prevent the commitment of unlawful or criminal acts on social media, as well as threats to national security, such as terrorist threats. 

In sum, the matter related to Facebook, Google, and Twitter is on the regulatory frontier between the law and new technologies. It requires an in-depth debate to perceive the best regulatory alternatives to defend democracy. 

This debate on self-regulation and sectoral legislative regulation that is being held in the USA is also necessary here in Brazil, given the perspective of the elections, limits and transparency of digital publicity, national security, consumer privacy and protection.    

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*Ericson M. Scorsim is a lawyer specializing in Communications Law at Meister Scorsim Advocacia.

Artigo publicado no portal jurídico Migalhas Internacional em 27/11/2017.