A Short Explainer of Why California’s Mandatory Transparency Bill (AB 587) Is Terrible – Technology & Marketing Law Blog

A Short Explainer of Why California's Mandatory Transparency Bill (AB 587) Is Terrible - Technology & Marketing Law Blog

It’s “burn-down-the-Internet” week on the blog, during which I will recap three bad California bills that the California legislature is poised to enact. Yesterday, I covered AB 2273, the Age-Appropriate Design Code. Today I’m covering AB587, an editorial transparency law that censors speech both immediately and when it’s enforced. Both Florida and Texas included editorial transparency mandates in their social media censorship laws, and I’m baffled that the California legislature thinks those #MAGA laws are good sources of inspiration??? For more on the problems with editorial transparency laws generally, see my article The Constitutionality of Mandating Editorial Transparency. For background on the bill and its voluminous problems, see this lengthy blog post. A quick summary of the bill’s lowlights:

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AB587 has censorial consequences. Among other problems, by prioritizing certain content categories, the bill tells social media platforms that they must make special publication decisions in those categories to please the regulators and enforcers who are watching them. The resulting distortions to the platforms’ editorial decision-making constitutes censorship. Any enforcement actions also will be impermissibly intrusive into the editorial practices of social media platforms, putting regulators in the middle of the editorial process and enabling them to second-guess the platforms’ editorial decisions.

The bill is unduly burdensome. Among other problems, it requires each social media platform to make 161+ different statistical disclosures. This will require social media platforms to custom-build and maintain a reporting system. That system cannot be the same as the reporting systems already required for the (divergent) mandated transparency in other states, such as Texas and New York, so compliance with the bill will impose substantial extra costs. If other states adopt new divergent requirements, the costs and complexity will grow even more.

The bill will not help any consumers. Platforms will water down the TOS-based disclosures to the point of uselessness. The statistics disclosures will not be comparable across platforms (due to each platform’s idiosyncrasies) or across time with a single platform (due to ongoing ordinary changes to their policies and technology). Thus, California constituents won’t see any benefits from the required disclosures.

The bill is likely to be struck down as unconstitutional at substantial taxpayer expense. The censorial consequences should trigger the highest level of constitutional scrutiny, but the undue burdens and lack of consumer benefit ensures it won’t survive even lower levels of scrutiny. As my blog post mentions, there are several other bases for constitutional challenges.