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UC Law Journal

Abstract

All three branches of the federal government have wrestled with how the law could or should regulate social media applications to mitigate the harms of disinformation. However, most proposed solutions make the same critical mistake: Lawmakers may focus on speech regulation or even economic regulation to solve for disinformation but these solutions do not actually address contemporary, technological vectors of disinformation. In today’s increasingly technologically driven global speech environment, the lynchpin for disinformation is not speech but data.

In particular, algorithmic personalization is a new, technological factor that makes disinformation especially harmful. Luckily, data protection and privacy regulation can greatly curb the impact of algorithmic personalization and, correspondingly, disinformation harms as well. These privacy regulatory solutions also do not have the negative factors that make speech and economic regulatory solutions difficult and ineffective. Thus, lawmakers would be better off moving away from speech and economic regulation to instead focus on privacy regulation to mitigate the harms of disinformation, including disinformation found on foreign-owned social media applications, like TikTok.

Legal solutions that focus on data privacy, instead of pure speech regulation or economic regulation, are better solutions for disinformation for four reasons. First, privacy regulation addresses the root of the problem for today’s disinformation: the technological factor of personalization, driven by technological developments like the internet and artificial intelligence (“AI”). Second, privacy regulations are more likely to pass constitutional muster, avoiding First Amendment roadblocks. Third, privacy regulations are likely less controversial to an American public primed to fear censorship. Finally, privacy regulations would be less likely to discriminate harshly against foreign companies, resolving international tensions around perceived economic protectionism and trade unfairness.

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