Everything Is Not Terminator: We Need The California Bot Bill, But We Need It To Be Better

Published in The Journal of Robotics, Artificial Intelligence & Law November-December 2018

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. 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...