SB 1001: Bots in your voting booth?

The recently passed Senate Bill 1001, effective July 1, 2019, makes it unlawful to use a "bot" to communicate or interact online with a person in California, if the use is: (a) with the intent to mislead the recipient about the bot's artificial identity; (b) for the purpose of knowingly deceiving the recipient about the content of the communication; and (c) to incentivize a purchase or sale of goods or services in a commercial transaction or to influence a vote in an election. Bot users are not liable if they include a clear, conspicuous disclosure that the message is a bot communication, and service providers of online platforms are not liable for bots sent out on their platforms.

While on its face this seems to put an end to those annoying social media accounts operated by bots impersonating a natural person, we identify several potential challenges to the enforceability of this statute.

A brief look at the legislative history offers some insight into the evolution of SB 1001. As introduced, SB 1001 prohibited all intentionally misleading communications using a bot. After concerns were raised that the bill would be overbroad under the First Amendment, it was amended to prohibit only communications made to incentivize a commercial transaction or influence a vote. SB 1001 also originally imposed duties on online platforms to investigate reports of SB 1001 violations and provide regular reports to the attorney general. This language was removed over concerns that these provisions could compel censorship and impact the right of anonymous speech.

After these amendments, at least some of the activity prohibited by SB 1001 appears to be unlawful under existing California laws. Deceptive statements to incentivize commercial transactions are prohibited generally under false advertising and unfair competition laws. On the other hand, there appears to be no existing law prohibiting deceptive statements to influence a vote.

Attempts to enforce SB 1001 may still encounter First Amendment challenges, particularly the voter influence provision. Given the heightened protections afforded to political speech, courts may be reluctant to engage in factual disputes as to whether a communication is made to influence a vote and, if so, if it is intentionally deceptive.

In addition, it is unclear who has standing to enforce SB 1001, because it does not provide a private right of action. The legislative history does not clearly indicate the intent to create such a private right.

Given that the commercial component of this statute is, at least partially, covered by other laws, it occurs to us that this statute is more of a reaction to the political climate of distrust in the voter system than a reflection of a need to further protect consumers from pernicious bots pushing commercial transactions.