In July 2019, California became the first state to require online bots to identify themselves. The Bolstering Online Transparency Law (SB 1001) makes it unlawful for a person or entity to use a bot to communicate online in an attempt to influence a consumer’s voting or purchasing decisions without first identifying itself as a bot.
The goals of the BOT bill are to:
California Senator Bob Hertzberg introduced the bill primarily to “protect democracy” from disingenuous accounts programmed to misinform the public. Senator Hertzberg explained that “Bots continue to misrepresent public sentiments and perceptions about topics, or to mute dissenting opinions and distract from current events.”.
During the 2016 political season, social media bots accounted for 3.8 million (19 percent) of US election-related tweets. Twitter told a Senate committee that a Russian intelligence agency had 2,752 Twitter accounts, of which 47 percent were bots. The issue at stake is scale – bots can accomplish what it takes thousands of humans to do in the same amount of time.
Senator Hertzberg said the bill is intended to go after:
If you’re a company using AI accounts, you may wonder if and how the law applies to your operations. To understand the implications, consider how the law has been defined:
The law defines a “bot” as “an automated online account where all or substantially all of the actions or posts of that account are not the result of a person.” The law applies to all public-facing websites, applications, or social networks with at least 10 million monthly visitors.
Disclosures must be “clear, conspicuous, and reasonably designed” to inform people that it is a bot.
There is no private right of action included in the law, and it does not impose a duty on service providers. Still, the Attorney General has said failure to disclose is considered fraud under California’s unfair competition laws, which may result in fines, jail time, and other remedies.
However, overly broad language like “intent” and “bot” could potentially mean steep fines for businesses using chatbots for customer service or marketing.
As with most laws, there is much room for interpretation.
Free speech advocates worry that legitimate ways of using social media bots for politics or artistic speech may be impacted. The Electronic Freedom Foundation, a nonprofit, has been a vocal critic of the BOT Act, arguing that bots are simply outlets for their human creators to express themselves. “Bots are used for all sorts of ordinary and protected speech activities, including poetry, political speed, and even satire,” they have said. “Disclosure mandates would restrict and chill the speech of artists whose projects may necessitate not disclosing that a bot is a bot.”
Senator Hertzberg argues he’s not looking to curtail First Amendment rights, but rather, he wants “a little Good Housekeeping seal that says, ‘this is a bot.’” There is a constitutional right to be anonymous online, but there is no right to “falsely represent that one thing is something else,” he says.
It will be interesting to see what claims arise related to this new bill and how it might be modified or clarified in the years to come. Worth noting: Senator Herzberg also helped introduced the California Consumer Privacy Act, another controversial bill that passed recently. (You can read more about how CCPA impacts on claims administration here.)