With the first elections in the Democratic primary race closing in, Sen. Elizabeth Warren released a plan this week to combat digital disinformation.
“Anyone who seeks to challenge and defeat Donald Trump in the 2020 election must be fully prepared to take on the full array of disinformation” that the Republican president and his allies might use, the Massachusetts senator wrote in a Medium post Wednesday outlining her proposal.
Then — in what was both an ironic, if not unpredictable, twist and a “perfect case study” of the problem — the plan fell victim to false information itself.
In her plan, Warren pledged that her campaign wouldn’t spread false or misleading information, called on tech platforms to step up their efforts to address disinformation, and outlined policies she would pursue as president.
One of those policies would be to create civil and criminal penalties for people who intentionally spread false information about when and how to vote, which has increasingly become an issue as campaigns are increasingly fought online, where misinformation can spread quickly. According to the Brennan Center for Justice, the 2016 and 2018 elections saw voter suppression efforts in the “form of misinformation campaigns and deceptive practices such as lying about the time, place, and manner of voting.”
“I will push for new laws that impose tough civil and criminal penalties for knowingly disseminating this kind of information, which has the explicit purpose of undermining the basic right to vote,” Warren wrote.
However, that pledge was conflated by a CNBC headline Wednesday, which misleadingly stated that Warren was proposing criminal penalties for spreading disinformation in general. The outlet’s tweet (which has not been deleted) promoting the story was subsequently shared and retweeted by commentators across the political spectrum, raising alarms about the seeming free speech implications.
“This is an awful, authoritarian, unworkable, and censorious proposal from Warren, no matter what her intentions are,” Glenn Greenwald, the founding editor of The Intercept, tweeted to his 1.4 million followers.
If Trump wins again – or even right now – does Warren want to vest his administration with the power to “criminalize” and punish companies that the Trump administration deems have been spreading “disinformation” online?https://t.co/M9YkxaXj7m
— Glenn Greenwald (@ggreenwald) January 29, 2020
However, the incorrect framing particularly took on the right. Sen. Rand Paul, a Kentucky Republican, tweeted it to his 2.6 million followers. Conservative outlets, as well as the Russian government-funded RT, pounced on it, accusing Warren of promoting an “Orwellian” crackdown on free speech. And by Thursday morning, the notion that Warren was proposing “criminal and civil penalties on those who are deemed to be guilty of spreading disinformation online” had made it to Fox News.
“Are we seriously going to start arresting someone because you don’t like what they’re posting online?” Dana Loesch, a former National Rifle Association spokeswoman-turned-cable news pundit, said during an appearance on “Fox & Friends.”
The short answer: no.
CNBC has since updated their headline to say that Warren is only proposing such penalties for “spreading voting disinformation online.” Some civil liberties advocates, like Greenwald, still oppose that idea, though he noted “it’s not as dangerous as CNBC originally suggested.”
Still, Warren’s campaign publicly called out CNBC on Thursday for their “misleading tweet.”
Bharat Ramamurti, the deputy policy director for Warren’s campaign, said the article turned out to be “the perfect case study of how online disinformation spreads and is picked up on TV.”
“But the plan wouldn’t penalize that,” Ramamurti added. “It only penalizes intentional disinformation about when and how to vote.”
CNBC’s misleading tweet on the Warren online disinformation plan turned into…the perfect case study of how online disinformation spreads and is picked up on TV.
But the plan wouldn’t penalize that. It only penalizes intentional disinformation about when and how to vote. https://t.co/e4PYPzc0SR
— Bharat Ramamurti (@BharatRamamurti) January 30, 2020
According to the Brennan Center, such deception often includes the provision of the wrong election date. Other examples have ranged from fliers falsely telling college students in Maine that they had to reregister their car to vote to ads telling North Dakotans that they could lose their hunting license for voting.
There could still be issues with Warren’s specific proposal, such as parsing whether someone is joking or deliberating engaging in voter suppression.
However, the Cambridge Democrat is hardly the first elected official to propose criminal penalties for deliberately spreading election disinformation. In 2018, a group of Democrats introduced a bill that would similarly criminalize the intentional dissemination of wrong information about the time and place of elections, as well as voter qualifications and registration status. And while California recently passed a law to combat such digital disinformation campaigns, there is no federal statue on the books.
“That’s not currently illegal under most circumstances,” Justin Levitt, a former Justice Department official and election law expert, told HuffPost in 2018. “Most people say that it seems crazy that it’s not illegal to tell somebody they can vote on Wednesday when actually they can’t.”