The Rise of Fake News Through Technology and How to Regulate It

By: Emily Bayard

Technology has greatly enhanced the accessibility of information in the twenty first century. While there are significant advantages to having a plethora of information at our fingertips, there are also disadvantages. For example, within the past year, we have experienced a rise in fake news on all types of subjects. Be it Hollywood, Finance, Politics or the Sports world, fake news is ubiquitous throughout all media outlets. There has always been a threat of fake news, but it is more prevalent today because the ability to post or share information via the internet is almost instantaneous.[1] This is a cause for concern because fake news can have detrimental effects on individuals and society as a whole.

One way that fake news can be regulated is through social media companies like Facebook and Twitter. Facebook, specifically, has been heavily criticized for the amount of fake news on its site.[2] Facebook has responded with efforts to help reduce the amount of fake news and restore trust in its users.[3] In May, the company began efforts to decrease the number of posts and ads in the News Feed that do not meet its standards.[4] In early August, Facebook began using advanced technology to detect potential fake news and to fact check it.[5] When fake news is found, the fact check results are disclosed on the post.[6] Most recently, in late August, Facebook released a statement notifying the public that the company is instituting a temporary advertising ban on businesses that repeatedly share and spread fake news.[7]

Another way that fake news can be regulated is through the government. However, the term ‘fake news’ has yet to be clearly defined by law or precedent.[8] Furthermore, the idea of censorship causes much controversy and finding a balance between censorship and the First Amendment right to freedom of speech is extremely problematic. Currently, the Federal Communications Commission attempts to regulate fake news through the broadcast hoax regulation, which only applies to licensed TV and radio broadcasters.[9] The only other way that the government attempts to regulate fake news is through defamation laws.[10] A victim of fake news can seek legal redress through a civil action for defamation.[11] Defamation laws vary by state, but generally, the plaintiff must prove that the defamation was objectively false, published, quantifiably injurious, and unprotected speech.[12]

Facebook and the government may attempt to regulate fake news, but arguably the most effective way to combat fake news is through the vigilance of the people using the internet.[13] We are blasted with “breaking news” or “important update” or “this just came in” to get our attention with stories that bring in the most advertising dollars. It is imperative that internet users are able to recognize which sources are reliable and which are unreliable, and also take advantage of all this available information by looking at several different news sources. Simply put, we must be more scrupulous with the news presented to us rather than taking what we read or hear as fact.

[1] Eugene Volokh, Fake news and the law, from 1798 to now, Wash. Post (Dec. 9, 2016),

[2] JP Mangalindan, Facebook says it will ban businesses from advertising if they share fake news, Yahoo Finance (Aug. 28, 2017),

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Will Erstad, Are There Legal Ramifications to Publishing Fake News Stories?, Rasmussen College: School of Justice Studies Blog (Feb. 23, 2017),

[9] Volokh, supra note 1.

[10] Erstad, supra note 8.

[11] Erstad, supra note 8.

[12] Erstad, supra note 8.

[13] Erstad, supra note 8.

Regulatory Capture at the FCC and the American Public

By: John K. Aleksandravicius

The debate on net neutrality centers around a simple question: is the internet a service to be a pay for play system or a utility to be regulated like electricity and water?[1] In the hours after the June 1st airing of John Oliver’s Last Week Tonight, nearly 45,000 posts were made in the comments section of the FCC’s website following Oliver’s battle cry. “This is the moment you were made for… we need you to get out there and focus your indiscriminate rage in a useful direction.”[2]

In the months after the de facto Distributed Denial of Service (DDoS) attack, then Chairman Tom Wheeler brought to vote and ultimately upheld that the Internet should enjoy greater protection as a utility under Title II of the Telecommunications Act.[3]

Also subsequent to 2014’s FCC website crash, the FCC took steps to make their website more robust.[4] This past May, in a follow up to his previous statements, Oliver accused current FCC Chairman Ajit Pai (a former Verizon lawyer) of towing a policy line in concert with the desires of his former employers to declassify the Internet as utility under Title II of the Telecommunications Act.[5] What this would eventually mean is that certain corporate entities that provide content and an ISP could throttle competitor content providers unless they paid a premium over their own brand of content.[6] This leaves companies like Netflix, Amazon, and HBO at the whim of content distributors like Verizon.[7]

Oliver again issued a call to arms for anyone listening to post to comment on the FCC website in support of the Internet’s Title II classification via a redirection mirror named (in a tongue and cheek way) [8]

Lo and behold, the website, despite the upgrades came under attack and slowed to a trickle. [9] Or did it? [10] The amount of traffic that supposedly was sourced on the public facing side of the FCC’s API that would be required to crash the site would be greater than that of a similarly scaled attack (and largest ever recorded by any ISP) and visible to anyone monitoring ISPs. [11] This leads to the conclusion that the botnet access had to come from a non-public facing API access point. In other words, the botnet attack was an inside job. [12]

            In the hours following Oliver’s calling on the public to comment and support the utility classification of the Internet, a comment spam attack coincidentally occurs to drown out the voice of the public.[13] It is extremely ‘convenient’ that the attack was barely analyzed and reported on when the political and policy slant of the attackers were backing a stance supported by current FCC Chairman Ajit Pai and his former employer Verizon.[14]

            Although attempting to put a fun and ‘new’ spin on government regulation, Chairman Pai is a textbook example of regulatory capture.[15] The fresh take on his approach to bridging the boring nature of FCC regulations is a pernicious veil for his obvious special interest slant.

[1] Cecilia Kang, Court Backs Rules Treating Internet as Utility, Not Luxury, N. Y. Times (June 14, 2016),

[2] Last Week Tonight with John Oliver (HBO 2014).

[3] Telecommunications Act of 1996, 110 Stat. 56, tit. 2 (1996); see also Press Release, FCC, FCC Adopts Strong, Sustainable Rules to Protect the Open Internet (Feb. 26, 2015) (on file with author).

[4] Dr. David A. Bray, Update on FCC’s IT Upgrades, FCC: Blog (Sept. 8, 2015, 6:05 AM),

[5] Nilay Patel, The Internet is Fucked (Again): Why Does This Keep Happening?, The Verge (July 12, 2017, 9:00 AM),

[6] Id.

[7] Id.

[8] Last Week Tonight with John Oliver (HBO 2017).

[9] See Hayley Tsukayama, The FCC Says an Attack - Not John Oliver - Hampered its Website, Wash. Post: The Switch (May 9, 2017),

[10] See Current Status,, (last visited Aug. 31, 2017); see also Current Status,, (last visited Aug. 31, 2017).

[11] KrebsOnSecurity Hit With Record DDoS, KrebsonSecurity (Sept. 22, 2017, 8:33 AM),

[12] Tsukayama, supra note 9.

[13] Nathaniel Fruchter, FCC Comment Visualizations, GitHub, (last modified May 16, 2017).

[14] Dell Cameron, FCC Now Says There Is No Documented ‘Analysis’ Of the Cyberattack It Claims Crippled Its Website in May, Gizmodo (July 21, 2017, 8:00 PM),

[15] Kelcee Griffis, For FCC's Pai, Pop Culture Is A Bridge To Policy, Law360 (Aug. 8, 2017, 9:05 PM),