W.Va. House Bill Would Regulate Social Media In Elections, ‘Deplatforming’
When Facebook pledged last year to register at least 4 million new voters nationwide, their plans included West Virginia.
The platform notified users in the Mountain State of registration deadlines, election dates and identification requirements through an online Voting Information Center. To Secretary of State Mac Warner, this risked conflicting with information that county clerks and his office were putting out to voters.
“There are too many moving parts when it comes to an election,” Warner said Thursday. “Too many different districts, too many different dates to remember … It is too complicated for any one entity to try to be in charge of all of that.”
House Bill 3307, which passed the House of Delegates on Wednesday, seeks to address this and other social media issues.
Under this legislation, Facebook and other platforms would have to get approval from the secretary of state’s office any time they intend to publish information on the elections.
The bill also requires equal space and visibility for all candidates, and it bars a company from algorithmically targeting one viewer over another based on any factor other than the fact that a viewer resides in West Virginia.
Social media companies would have to publicly disclose any favorable treatment of a candidate as an in-kind contribution.
The legislation goes on to create an appeals process for candidates who lose access to their accounts before an election, as well as protections for any personal information that candidates share with a platform.
The secretary of state's office has seen “a lot of anecdotal evidence” of disparate treatment of candidates by social media companies, according to general counsel Chris Alder.
Alder, who helped draft some of the bill, said he and his colleagues asked Facebook for data on this but never received anything.
“Without the transparency into the data, then we have no visibility into that,” Alder said. “We can't tell.”
Back-And-Forth On The ‘Voting Information Center’
As for working with Facebook during the 2020 election, Alder shared several emails and letters between Warner, his attorneys and Facebook.
The emails show that a representative for Facebook reached out to Warner’s office in April to verify a notification that the company was planning to send its users, regarding the state’s deadline to register to vote in the 2020 primary election.
An attorney for Warner’s office responded to Facebook the same day, pointing out that the date was a month off. West Virginia had offered its voters more time to register as a result of the pandemic — the Facebook representative said the company “must’ve completely missed this announcement.”
Following the state’s primary election in June, Warner's office wrote Facebook, saying that while they supported Facebook’s “plan to refer users to trusted, official sources for election information,” they were “objectively concerned” about Facebook publishing its own information through the company’s “Voting Information Center” project.
Warner sent the company a list of requests, later phrased as yes-or-no questions, including “Will Facebook publish any election-related message or information to any user before the chief election official in the appropriate jurisdiction approves it?” And, “Will Facebook engage in only factual, informative speech intended to educate the public election dates, times, or statutory requirements?”
After two more written follow-up requests and a response from Facebook that Warner called “totally unresponsive” to his questions in August, the company provided specific answers on Sept. 2, 2020.
The same day, Warner was one of six secretaries of states who wrote Facebook, requesting the company discontinue its Voting Information Center and “refrain from publishing or promoting election information retrieved from or created by any source except state/territory chief election officials.”
Facebook did not respond to a request for comment.
Illegal To Censor Based On ‘Political’ Or ‘Religious’ Speech
Much of the debate on the bill Wednesday focused on the bill’s “Stop Social Media Censorship Act,” which would apply year-round to all users — not just candidates and groups involved in elections.
This section of the bill would make it illegal for any social media platform, which is not affiliated with a political party and has more than 1 million subscribers, to delete, censor or algorithmically reduce the visibility of any of its users based on their political or religious speech.
The legislation defines political speech as “discussion of social issues” or those relating to state government and public administration.
Religious speech would be “a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain such greater questions as how the world was created, what constitutes right and wrong actions by humans, and what happens after death.”
The bill does not bar platforms from deleting any users who call for immediate acts of violence, create obscene content or content involving false personations, criminal conduct or the bullying of minors. Any platform that deletes someone by legal order also is safe, or those that accidentally delete a user through operational error.
House Technology and Infrastructure Chairman Daniel Linville, R-Cabell, said the legislation is meant to “level the playing field” for social media companies, which by federal law are offered more protections from liability for what their users say online, compared to what print and broadcast media outlets face for their content.
Linville is the bill's lead sponsor.
“I totally understand that partisan politics can be alleged in trying to work with this,” Linville said Thursday. “We have attempted to craft a bill that does not favor one side or the other.”
Debate on Wednesday included support from freshman Del. Todd Longanacre, R-Greenbrier, who told others in the House he struggled understanding why he lost access to his personal Facebook account last September.
(Longanacre said he still had a campaign page that was moderated by someone else.)
After questions from other delegates, all Democrats, Longanacre described Facebook activity in which he likened the Black Lives Matter movement to a domestic terrorism organization and followed a Q-Anon related page. Del. Mike Pushkin, D-Kanawha, also asked about a post that Pushkin said had been reported to the Anti-Defamation League, which tracks anti-Semitic remarks.
Del. Evan Hansen, D-Monongalia, said he agreed that the role of social media platforms in elections is an “emerging issue we need to tackle,” but said this was “not that bill.”
“This includes some provisions that go way above and beyond what’s reasonable, and perhaps what’s even legal,” Hansen said, questioning whether this affected a company’s First Amendment rights.
Del. Shawn Fluharty, D-Ohio, questioned whether the legislation would affect the state’s efforts to attract larger tech companies to West Virginia to do their business here.
“You know, we talked about bringing tech companies to West Virginia, we even formed a tech caucus,” Fluharty said. “And then we're running legislation that says tech companies can't operate their companies how they deem fit.”
The legislation passed Wednesday 72 to 28.
It now awaits consideration by the Senate Judiciary Committee.
Emily Allen is a Report for America corps member.