The 2020 Presidential Election broke many records, including the highest voter turnout since the 1900 election, with over 66% of the eligible voting population participating.
To mark the Inauguration of President Biden on Jan. 20, Kaye Husbands Fealing, Dean of Ivan Allen College of Liberal Arts and cybersecurity privacy expert Peter Swire discussed the state of American politics and ways in which technology affects democracy.
Swire is the Elizabeth and Thomas Holder Chair of Law and Ethics at Scheller College of Business and Senior Counsel with Alston & Bird, LLP.
Additionally, he worked with President Clinton as Chief Counsel for Privacy and with President Obama as a member of the Review Group on Intelligence and Communications Technology.
Swire began by focusing on the legal implications of posts on online platforms. He explains that while many on the political right fear the potential abuse of a tech company censoring users, others on the left fear the power of a megaphone that could be used to create civil disorder.
“In the United States, you can’t shout fire in a crowded theater,” Swire said. “You can’t incite people to attack their fellow citizens in their government. And by the time you get to insurrection, there have to be legal consequences, or consequences at a minimum, on speech for the platform.”
Next, Swire encouraged listeners to pretend they were given control of a media company and had to decide when to block content. The following situations require serious consideration.
“Let’s say somebody’s advertising fraudulent cures that are going to actually hurt people or do nothing and they’re getting rich from it,” Swire said. “Do you think the site should be able to block these kinds of fraudulent ads?”
For years, T.V. stations and platforms have blocked fraudulent ads. However, what would happen if the content is, instead, a scientific study?
“Sometimes it’s not clear what’s fraudulent. There might be a scientist with a new study who says COVID isn’t really that bad,” Swire said. “Do you block the scientific study? Well, probably you’ll decide no, you don’t block the scientific thing.”
Applying this thinking to the November election, he posed the question of what you, as the controller of the media company, would do if someone claims there was evidence of voting irregularities on election night.
“If you’re the platform, there’s a lot of reason, in that moment of breaking news, to say ‘Well, we don’t really know the facts here yet,’ so you probably let it stay up,” Swire said. “Well, what if you’ve had 60 lawsuits, all of which have come out the same way and the facts seem clear on the other side?”
“At this point, saying the election was stolen looks a lot like disinformation. It looks like it’s known to be a lie.”
The point of thinking about these exercises is to realize that deciding what to do with each post, especially when a company has millions of users, can be challenging.
Swire moved into a legal basis for deciding what to do by examining the Communications Decency Act of 1996, which was published in the earliest days of the Internet and differentiates online platforms from publishers.
“If a user posts a falsehood, Section 230 says Facebook can’t be sued for defamation. It wasn’t Facebook saying it,” Swire said.
The idea of this act was to cut new technology companies a break so they could grow. Now however, a new question has begun to arise — at what point should online platforms be liable?
Swire offered his opinion.
“I do think the companies should have better procedures to address disinformation and fraud and these problems,” Swire said. “… They should have transparency about the terms of service. They have to have algorithms to try to help human judgment.”
Fealing pointed out that algorithms still have issues.
“I think you’re hinting at the term of artificial intelligence methodologies that can be used here, which also have sometimes some biases built in one way or another,” Fealing said. “… I think the technologists need to get at this, but also the social scientists and as you said as well the legal sector as well, in terms of developing some practical solutions.”
Important to these discussions is an understanding of the Rule of Law, an important legal concept relevant to governance.
The Rule of Law states that the powers of the rulers cannot be arbitrary and must be accountable, established and consistent.
“In a democracy, the most important Rules of Law are have fair elections and then follow the election results and if people go to violence to undo that, that is right at the center of breaking the Rule of Law,” Swire said.
Another central part of the American history of the Rule of Law is a peaceful transition of power.
“That’s been true in every other election until this year and this year for weeks and weeks after the election, President Trump refused to say that he was committed to a peaceful transition of power,” Swire said. “He continued to say things that weren’t true about the election that he knew by then were not true.”
The final part of the discussion was on the path forward.
“Mr. Biden received over 81 million votes, the largest number in history. Mr. Trump received more than 74 million votes, the second largest number in history,” Fealing said. “For lots of people is a huge question. How could so many people have voted for the other candidate?”
Swire pointed out this huge turnout clearly shows Americans felt there were many important societal issues riding on the 2020 election.
“Imagine why people might have voted the other way, as strange and weird and unimaginable as that might seem to you,” Swire said.
Swire concluded the talk with some final words of advice.
“Try to understand how a person of good faith could reach the opposite conclusion,” Swire said. “As a lawyer, we’re trained to understand the other side’s best arguments, because that’s gonna let you make your case better.”
Swire connected these ideas to the aforementioned legal concept of the Rule of Law.
“Most importantly, as a nation, I think we have our best chance to reaffirm democracy, to reaffirm the Rule of Law, if we can genuinely try to understand the best arguments of people of good faith, even when they’re on the other side,” Swire said.
Moving forward, Swire encouraged Americans to try to consider other political perspectives.
“They may be politically different from you or political opponents, but they’re not your enemy,” Swire said. “I hope that that continues to be a feature of the American way of doing our lives.”
A recording can be found on the Georgia Tech YouTube page.