Fake News and US election law

'Deep Fakes, Bots, and Siloed Justices: American Election Law in a Post-Truth World' by Richard Hasen in (2019) St. Louis University Law Journal comments

 About a decade or so ago, the major questions in the field of election law were familiar to scholars and centered on the Supreme Court, including the constitutionality of corporate spending limits in candidate campaigns, the constitutionality of the preclearance provision of the Voting Rights Act, and the constitutionality of strict state voter identification laws. While issues related to these cases continue to churn in the courts and remain of vital importance to American democracy, some of today’s most urgent election law questions seem fundamentally different and less Court-centric than those of the past, thanks to rapid technological change during a period of hyperpolarization that has called into question the ability of people to separate truth from falsity. 

These questions include: What can be done consistent with the First Amendment and without raising the risk of censorship to ensure that voters can make informed election decisions despite a flood of virally-spread false and misleading speech, audio, and images? How can the United States minimize foreign disinformation campaigns aimed at American elections and attempts to sow social discord via bot armies? How can voters obtain accurate information about who is trying to influence them via social media and other new forms of technology? How can we expect judges to evaluate contested voting rights claims when they, like others, may live in information cocoons in which the one-sided media they consume affects their factual priors? Will voters on the losing end of a close election trust vote totals and election results announced by election officials when voters are bombarded with conspiracy theories about the reliability of voting technology and when foreign adversaries target voting systems to undermine confidence? 

This Essay considers election law in the post-truth era, one in which it has become increasingly difficult for voters to separate true from false information relevant to election campaigns. Rapid technological change and the rise of social media have upended the traditional media’s business model and radically changed how people communicate, educate, and persuade. The decline of the traditional media as information intermediaries has transformed—and coarsened—social and political communication, making it easier for misinformation and vitriol to spread. The result? Political campaigns that increasingly take place under conditions of voter mistrust and groupthink, with the potential for foreign interference and domestic political manipulation via new and increasingly sophisticated technological tools. Such dramatic changes raise deep questions about the conditions of electoral legitimacy and threaten to shake the foundation of democratic governance. 

Part II of this Essay briefly describes what I mean by the “post-truth” era in politics. Part III examines the effects of the post-truth era on campaign law, arguing for a new law requiring social media to label as “altered” synthetic media, including so-called “deep fakes.” I defend such a law as necessary to support the government’s compelling interest in assuring voters have access to truthful political information. Part IV considers campaign finance law, arguing for campaign disclosure laws requiring those who use online and social media to influence voters, including those using bots and other new technology, to disclose their true identities and the sources and amounts of their spending. Part V considers the difficulty of using courts to adjudicate voting rights claims when there is fundamental disagreement about the basic facts related to issues such as voter fraud in our hyperpolarized, cocooned political environment. The Essay concludes with some thoughts on whether election law is up to the task of dealing with technological change and polarization which threaten some of the key suppositions of how democracy is intended to function, including as an aid to the peaceful transition of power.

Cheating and Australian non-university higher education providers

The valuable 'Contract cheating in Australian higher education: a comparison of non-university higher education providers and universities' by Tracey Bretag, Rowena Harper, Kiata Rundle, Philip M. Newton, Cath Ellis, Sonia Saddiqui and Karen van Haeringen in (2019) Assessment and Evaluation in Higher Education comments

This article reports on one aspect of a nationally funded research project on contract cheating in Australian higher education. The project explored students' and educators’ experiences of contract cheating, and the contextual factors that may influence it. This article reports the key findings from non-university higher education providers (NUHEPs). It compares survey responses from 961 students and 91 educators at four NUHEPs with previously reported findings from eight universities (14,086 students and 1,147 staff). NUHEP and university students report engaging in contract cheating in similar ways. However, while NUHEP educators spend more time teaching academic literacies and discussing contract cheating, NUHEP students are 12 times more likely than university students to report use of a professional academic writing service. Both NUHEP and university educators require systematic professional development regarding the relationship between the teaching and learning environment and students’ contract cheating behaviour. NUHEPs need to be cognisant of students’ vulnerability to commercial contract cheating services, and ensure they have access to timely academic and social support. 

The authors note

 In the Australian context, there are two main types of higher education provider: universities and non-universities. The latter group, referred to as non-university higher education providers (NUHEPs), offer a broad range of educational experiences for students, and their institutional sub-categories include technical and further education (TAFE), faith-based not-for-profit, other not-for-profit and for-profit (Tertiary Education Quality and Standards Agency [TEQSA] 2017a). NUHEPs currently outnumber universities by about three to one (127 versus 43) (TEQSA 2018b). At the time that this research was undertaken, there were 166 registered NUHEPs, with seven NUHEPs that had been registered in 2015 no longer being registered at the end of 2016, and seven new providers gaining registration in 2016 (TEQSA 2018c). Table 1 provides details of equivalent full-time student load (EFTSL) of domestic and international students in Australian higher education, according to the four main categories of universities, for-profit, not-for-profit and TAFE. 

As shown in Table 1, there has been a marked increase in international students enrolled in all categories of Australian higher education. Of the NUHEPs, the largest number of international students are enrolled in for-profit providers, and the largest percentage of growth was in not-for-profit NUHEPs. 

Despite their non-university status, many NUHEPs play a vital role in widening participation in university study through the provision of ‘pathways’ to higher education. These pathways provide opportunities for students who may not have achieved the necessary qualifications or had the appropriate academic preparation for direct entry to a bachelor program in a university. Of the 166 registered NUHEPs in 2016, fourteen were ‘pathway’ colleges linked to Australian universities. 

Evidence provided to the Kemp and Norton 2014. Review of the demand driven funding system (the Commonwealth Government policy which provided funding for domestic students admitted to bachelor degrees in Australian public universities, 2012–2017) demonstrated that:

higher education providers are actively working to identify and better support less adequately prepared students… the support offered by specialised sub-bachelor pathway colleges is effective. 

Furthermore, evidence provided by a number of NUHEPs to the Kemp and Norton review suggested that students who had entered a degree program via a NUHEP pathway course not only exceeded expectations based on their original level of academic preparation, but often achieved comparable outcomes with their direct-entry peers in terms of academic results and retention. Another advantage of NUHEP pathway courses is the opportunity for students who decide not to proceed to a bachelor degree to achieve an exit qualification such as a diploma. Kemp and Norton  concluded that two types of non-university providers (pathway colleges and TAFEs) ‘are well-designed for providing the right kind of educational support for students… entering the higher education system’ (2014, p. 54). This ‘educational support’ is particularly evident in the more personalised nature of pathway NUHEPs, including smaller classes, longer teaching periods, teaching focussed staff and an emphasis on pastoral care for vulnerable students. Most NUHEPs focus completely on teaching and they are specialised in comparison to universities (Norton 2016). In 2016, business-related courses were the most common in the NUHEP sector. 

Despite this positive assessment, the for-profit nature of many NUHEPs (as opposed to institutions that operate on government subsidised places) has at times positioned them to be in competition with universities, and the quality of some NUHEP programs has been questioned. Changes to government assistance for domestic NUHEP students in 2003 and the introduction of the student loan system VET FEE-HELP in 2009 led to a significant expansion of the sector, in terms of the number of providers. With this rapid expansion came concerns about fraudulent practices and abuses of VET FEE-HELP, which ultimately led to the demise of that loan system and the introduction of the much more tightly regulated VET Student Loans program in 2017. Nonetheless, there have been ongoing concerns about the challenges of maintaining academic standards in NUHEPs. Since 2012 NUHEPs have been assessed by TEQSA according to the same Higher Education Standards Framework (Threshold Standards) as universities, as part of TEQSA’s remit for ‘protecting and promoting the interests of higher education students and the reputation of the higher education sector’ (TEQSA 2017c). 

Of particular concern to TEQSA – and to many higher education regulators internationally – is the issue of contract cheating. National regulators in a range of contexts have provided advice to both educators and institutions on how to address this threat to academic integrity. Media scandals regularly expose contract cheating among university students, yet similar scandals have not emerged from NUHEPs, perhaps because of the relatively smaller numbers of students enrolled in NUHEPs versus universities (see Table 1). Our recent research demonstrated that a student’s language other than English (LOTE) status makes them especially vulnerable to contract cheating (Bretag et al. 2018b). Given the growing number of international students at NUHEPs, most of whom are LOTE, it might be anticipated that contract cheating would be an issue in that context. However, despite the size and importance of NUHEPs to the Australian higher education sector and their often critical relationship with universities, no parallel research on contract cheating in NUHEPs has been conducted. This may be because of the diversity and fluctuating nature of the sector and that teaching (rather than research) is their primary function. It is therefore timely to investigate the issue of contract cheating in the context of NUHEPs.

The authors' literature review notes

Although the term ‘contract cheating’ was first coined over a decade ago, the topic has gained significant attention in recent years due to the rise and visibility of commercial academic essay writing services. A range of definitions of contract cheating have been posited in the literature. Drawing on the original definition by Clarke and Lancaster considered the term contract cheating to be cheating whereby students order an assignment of a given standard to be delivered in a given period at a fixed price. However, Walker and Townley suggest that contract cheating refers to a cluster of practices relating to the outsourcing of students’ assessment to third parties, whether or not these entities are commercial providers. According to Ellis, Zucker and Randall ‘Contract cheating occurs when a student procures a third party (who knows about and benefits from the transaction) to produce academic work (that is usually, but not always assessable work) that the student then submits to an educational institution as if it were their own’ (2018, p. 1). Lancaster and Clarke have refined their definition, stating that contract cheating occurs ‘where a student is requesting an original bespoke piece of work to be created for them’ states that contract cheating is ‘where students recruit a third party to undertake their assignments’, and Harper et al maintain that ‘contract cheating occurs when a student submits work that has been completed for them by a third party, irrespective of the third party’s relationship with the student, and whether they are paid or unpaid’ (p. 1). For the purpose of this study, we use the Harper et al definition, on the basis that the issue at stake is whether students have engaged with and fulfilled the learning objectives of an assignment, not whether the provider of such an assignment receives a benefit, financial or otherwise. 

In response to a number of scandals across the globe about the perceived rise of contract cheating , there has been an increase in research and scholarship on the topic in recent years. Researchers have sought to determine the prevalence of contract cheating, with general agreement that a relatively small percentage of students engage in the practice. Bretag et al reported that 5.8% of university students engage in one or more of the five cheating behaviours investigated, but a relatively high proportion of students engage in ‘sharing’ behaviours – 15% reported buying, selling or trading notes, and 27% reported providing a completed assignment to others. Curtis and Clare’s analysis of previous studies indicated that 3.5% of students outsource their work to third parties, in comparison to research in specific cultural contexts (and based on a range of research methodologies), where the behaviour has been reported to occur at higher rates. For example, Foltýnek and Králíková found that 7% of the Czech students in their survey reported contract cheating, Eret and Ok stated that 18.9% of the Turkish students in their study had paid someone else to do their assignment, and Abukari (2016) reported that 45.8% of the students in their Ghana research had paid another person to complete an assignment for them. 

Other researchers have used experiments in authentic teaching situations to explore the challenges of detecting contract cheating, concluding that it is often possible to detect, particularly when educators are alert to the possibility that it is occurring. Practitioners have provided advice about how to detect contract cheating, or described teaching settings where intervention have reduced contract cheating and a range of practical resources have been available through the Contract Cheating and Assessment Design Project (www.cheatingandassessment.edu.au). Harper et al. explored the role of the educator, as well as the impact of the broader institutional setting, in minimising, identifying and responding to contract cheating. In response to commonly held views about the importance of ‘authentic’ assessment to prevent contract cheating, some researchers have investigated the relationship between assessment design and contract cheating, determining that while assessment design is important for learning, it cannot in itself prevent students from outsourcing their work to third parties. 

Bretag et al used multivariate analysis to uncover the key determinants which influence contract cheating behaviour among university students, reporting that LOTE status, the perception that there are ‘lots of opportunities to cheat’ and dissatisfaction with the teaching and learning environment, are the underlying issues which need to be addressed. More recent research has sought to understand why students choose not to engage in this type of cheating. Moving beyond the individual student or educational institution, researchers have begun to investigate the underlying business model of commercial academic writing companies, and the marketing strategies used to promote these services. There has also has been some exploration of the potential role of legislation to stop commercial academic writing services from providing assignments to students. 

In this context of global concern about contract cheating in higher education, it important to understand the extent of contract cheating at NUHEPs and to compare this to existing data about contract cheating at Australian universities. The four NUHEPs involved in this research approached the project team to specifically request participation by their institutions. To our knowledge, the issue of contract cheating at NUHEPs has not been previously studied. This article therefore seeks to address the following research questions:

• How prevalent is contract cheating in Australian NUHEPs? 

• Is there a relationship between cheating behaviours and sharing behaviours at NUHEPs? 

• What are the teaching and learning factors associated with contract cheating and other forms of outsourcing at NUHEP? 

• How do the answers to 1–3 compare with responses by university staff and students?