Seeing the Round Corners

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January 13, 2020


The path through fake news and deep fake videos has been slow and tedious to say the least. At times, at least to this writer, protection for the producers and creators of such are at the head of the list. The worry about free speech rights are important, but individuals’ rights to privacy should out weigh the purveyors of fake news and deep fake videos. Prosecutors and private plaintiffs will play very  significant roles but with limitations.

Today’s column on Administration Agency Solutions will cover briefly the role of the FTC, FCC and FEC.  

For the most part, administrative agencies have their areas or field of operation defined by statute, sometimes many hundreds of pages, but close review shows their roles are quite limited.

Because of the complicated and broad areas covered, an overview is best. The FTC’s “charge” is to “regulate and litigate in an effort to minimize deceptive or unfair commercials acts and practices, but the reader should keep in mind, these are limited possibilities. The FTC’s role is primarily to “protect consumers from fraudulent advertising relating to “food, drugs, devices, services or cosmetics.” Celebrity endorsements are another matter.

The FTC also has authority to investigate unfair and deceptive commercial acts and practices under Section 5 of the FTC Act. State attorney generals enforce UDAP laws (Unfair and Deceptive Acts Practice) which “prohibit deceptive commercial acts and practices and unfair trade acts and practices whose costs exceed their benefits.”  Said laws also empower attorneys general to seek civil penalties, injunctive relief and attorneys’ fees and costs.

The world was incensed in recent years over Facebook’s treatment of user data, and the FTC is working on an agreement with Facebook after a similar uproar involving the Cambridge Analytica debacle.

In 2017, the Washington Post proposed in an article, How the FTC Could (Maybe) Crack Down on Fake News. The FTC might consider the possibility of a role under a rubric of “unfair and deceptive commercial practices,” in response to the problem of fake news in particular. Among the obstacles it would face:

  • Section 230’s immunity provision as currently written would protect platforms from liability for publishing users’ deep fakes.’’
  • It is not clear this would be a proper interpretation of the FTC’s jurisdiction. The former head of the FTC’s Bureau of Consumer Protection argues that “[f]ake news stories that get circulated or planted or tweeted around are not trying to induce someone to purchase a product – they are trying to induce someone to believe in an idea.” and
  • The prospect of a government entity attempting to distinguish real news from fake news – and suppressing the latter – raises First Amendment concerns described in earlier columns on Seeing the Round Corners.

The Federal Communications Commission (FCC) is believed by many involved in the debate and discussion on how to police against harms from deep fakes circulating online. Here are the reasons why:

  • Has a long tradition of regulating the communications of broadcasters;
  • The major social media platforms of the 21st Century occupy a place in our information ecosystem similar to the central role that radio and television broadcasters enjoyed in the 20th Century;
  • Similar thinking led to the FCC in 2015 to break new ground by reclassifying internet service providers as a “telecommunications service” rather than an “information service,” thus opening the door to more extensive regulation;
  • Later in 2017, the FCC reversed course on its position on reclassifying interest service providers as a “telecommunications service” rather than an “information services; ”
  • With the last 2017 reversal of its position, and in an event never asserted, the so-called “edge providers like Facebook also should be brought under the telecommunications services umbrella.”


At the time of the writing of the Chesney and Citron paper on Deep Fakes, the FCC appeared to lack jurisdiction over content circulated via social media.

Various hot button issues such as fake news, incitement, radicalization or any number of other issues may cause the FCC to reinterpret its own authority or for Congress to intervene. For the present time, the FCC’s roles may be limited to potential efforts to deter the appearance on radio or television of deep fake news and deep videos.

The Federal Elections Commission (FEC) is a subfield of the Administrative Agency Solutions, but with the jurisdiction that would only touch upon deep fakes as they relate to elections, a narrow but important subfield. The problem of just how the FEC might act in relation to deep fakes in that setting remains unclear, according to Chesney and Citron.

The FEC’s central focus is financing and “the main thrust of its regulatory efforts relating to speech is to increase transparency regarding sponsorship and funding for political advertising.”

What readers are most likely distraught about is “The FEC does not purport to regulate the truth of campaign-related statements, nor is it likely to assert or receive such jurisdiction anytime soon for all the reasons discussed previously relating to the First Amendment obstacles, practical difficulty and political sensitivity of such an enterprise.”

The lines become somewhat blurred when disclosure rules come into play. Transparency obligations create elements of attribution and accountability for content creators that might resort to deep fakes in advertising.

Chesney and Citron caution, “Major online social media platforms are not currently subject to FEC jurisdiction in this content; Facebook, Google and other online advertising platforms have long resisted imposition of the FEC’’s disclosure rules, often citing the practical difficulties that would follow for small screens displacing even smaller ads.”

The 2016 election has created a huge pressure on the FEC to extent its reach to these platforms. That might change at some point, but even so, it certainly would not resolve the threat to elections posed by deep fakes.

According to Chesney and Citron, “There are two reasons why regulation would not eliminate deep fakes’ threat to elections:

  • Some amount of fraudulent post no doubt would continue simply because enforcement systems will not be perfect, and also because not all content about someone who is a candidate will be framed in ways that would appear to count as advertising. Deep fakes in particular are likely to take the form of just raw video or audio of some event that occurred, by no means necessarily embedded within any larger narrative or framing content; and
  • The FEC’s disclosure rules in any event are candidate specific, and do not encompass generalized “issue ads” that express views on a topic but do not single out particular candidates.


Next week, Coercive Responses – Military Responses and Covert Action.

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