Everything Is Not Terminator We Need the California Bot Bill, but We Need it to Be Better

• Jurisdiction: California,United States
• Publication year: 2018
• Citation: Vol. 1 No. 6

John Frank Weaver^*

I am on record in a number of publications as interpreting the First Amendment literally when it comes to freedom of speech for artificial intelligence ("AI").¹ The First Amendment does not refer to human beings or natural persons. The First Amendment states that the federal, state, and local governments "shall make no law . . . abridging the freedom of speech."² A recent bill in the California legislature, Senate Bill No. 1001 (the "Bot Bill"), is testing that, though, as it would make it unlawful for any person to use a bot—defined as "an automated online account on an online platform that is designed to mimic or behave like the account of a person"—to "communicate or interact with another person in California online," subject to certain provisions.³ In order to avoid unlawful use of a bot, the owner of the bot can disclose that the bot is, in fact, a bot.⁴

The constitutionality of the Bot Bill has been called into question by a number of groups, some of which believe, like me, that the First Amendment protects AI speech and autonomous speech from devices and programs. For example, in a letter dated May 21, 2018, the Electronic Frontier Foundation ("EFF") alleged that the Bot Bill would, among other things, unconstitutionally "unmask" the humans who program and create the bots.⁵ The EFF appears to question the legitimacy of any law that would restrain internet speech, although it recognizes the need to address "harmful and ill-intentioned bots, such as the Russian bots that interfered with the 2016 U.S. elections or spambots used for fraud or commercial gain."⁶ While I agree that there are some flaws in versions of the Bot Bill that could make it unconstitutional, I disagree with the notion that any bill that seeks to regulate bot speech on the internet is unconstitutional on its face because of its implications for the freedom of speech of the human programmers behind the bots.

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There are some specific revisions that would make the Bot Bill a constitutional bill, a better bill, and a bill that we need.⁷

Anonymous Speech Under the First Amendment

The exact standard used to review government efforts to limit anonymous speech varies depending on the context,⁸ but there is little doubt that the First Amendment was intended to protect anonymous speech. The Federalist Papers were written anonymously by John Jay, Alexander Hamilton, and James Madison, the author of the First Amendment. The U.S. Supreme Court has recognized the importance of anonymity to free speech: "Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society."⁹ As I have argued, the First Amendment protects all speech, from human and nonhuman speakers alike, so the right to anonymous speech extends to AI and bots.

The Bot Bill potentially runs afoul of the First Amendment's protection of anonymity by requiring that bots identify themselves as bots. If bots are subject to the First Amendment, this mandatory identification is akin to requiring natural person speakers to identify themselves. The most likely standards to be applied to the Bot Bill's prohibition of bot anonymity are intermediate scrutiny or exacting scrutiny. Courts use intermediate scrutiny when reviewing content-neutral laws, i.e., laws that govern the "time, place, and manner" of speech rather than the contents of that speech. Intermediate scrutiny uses a five-part test:

1. Is the challenged law or regulation within the constitutional power of government?

2. Does the law or regulation further an important or substantial governmental interest?

3. Is the governmental interest unrelated to the suppression of free expression?

4. Is the restriction narrowly tailored to address the governmental interest?¹⁰

5. Are there other ample open opportunities of communication?¹¹

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If the subject law does not satisfy these five questions, the court will find that the law violates the First Amendment.

When looking at laws that seek to regulate political speech, courts use exacting scrutiny, upholding the law in question only if it is narrowly tailored to serve an overriding state interest.¹² If the law is not narrowly tailored to serve an overriding state interest, the court will find that the law violates the First Amendment.

Does the Bot Bill Satisfy the Courts' First Amendment Standards?

When the EFF issued its letter, it was responding to the original version of the Bot Bill, which would have made it unlawful "for any person to use a bot to communicate or interact with natural persons in California online, with the intention of misleading a natural person about its artificial identity."¹³ There was no language that would have distinguished between commercial bots, political bots, bots that are intended to be humorous, bots that are created by artists as part of an installation or project, etc.¹⁴ As a matter of First Amendment review, the fact that the original version of the Bot Bill broadly prohibited anonymity among bots, rather than try to distinguish between bots for particular purposes, likely would have caused the Bot Bill to fail a court challenge. It is doubtful that a court would find such a broad approach to be narrowly...