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20th Century Law Can’t Regulate 21st Century Technology

The rules governing political advertising are obsolete.

October 11, 2017

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

Unless you’ve been residing in a cave for the past 12 months or so, it is overwhelmingly evident Russia tried to covertly manipulate the 2016 election. The latest to announce that they were unwitting participants in this campaign is Google, which revealed Monday that the Russians had surreptitiously spent tens of thousands of dollars in ads on YouTube, Gmail, and ads associated with Google search. This effort has not only drawn the attention of Special Counsel Robert Mueller, but both the House and Senate Intelligence Committees, who reportedly will hold hearings November 1.

Of all the online providers involved in this affair, none have come in for as much criticism as Facebook. Two days after Trump’s election, Facebook CEO Mark Zuckerberg told a crowd at a tech conference at the Ritz Carlton in Half Moon Bay, Ca.,  “the idea that fake news on Facebook…influenced the election in any way is a pretty crazy idea.”

That denial drew the attention of no less a personage than the outgoing President of the United States, Barrack Obama. Nine days later, at a conference of world leaders in Lima, Peru, Obama met privately with Zuckerberg. (Thirty-three year olds worth $71 billion tend to spend a lot of time at conferences.) According to The Washington Post, “Obama made a personal appeal to Zuckerberg to take the threat of fake news and political disinformation seriously.”

Although Zuckerberg wrote in a blog post hours after his Obama meeting, “we take misinformation seriously,” it was all half-hearted. He distanced Facebook from having any editorial responsibility. “We do not want to be arbiters of truth ourselves, but instead rely on our community and trusted third parties,” the Harvard dropout opined.

Finally, after months of speculation, Facebook revealed in early September that the Russians had spent about $100,000 on political ads for two years ending in May 2017. In an anodyne headline that would make the military proud, the press release announcing the Russian expenditures was entitled “An Update On Information Operations on Facebook.”

About two weeks later, Facebook announced that in addition to turning over the ad material to Mueller, it was such an outstanding citizen that it was sending the same material to the Congressional intelligence committees. This was no hasty decision, mind you. It came only after “an extensive legal and policy review.” Indeed, Facebook’s general counsel wrote that the decision had been “difficult.” He added that “Disclosing content is not something we do lightly under any circumstances.”

Evidently. Never mind that a foreign power tried to undermine a U.S. election. Never mind that much of the material was already public, having run on selected Facebook pages. Again Facebook ducked any obligation to its 214 million U.S. users (the ones who are supposed to ferret out the fake ads); an astonishing 65 percent of the entire population. Instead of disclosing the ads, Facebook opted to leave that to Congress, “we think Congress is best placed to use the information we and others provide to inform the public.”

And at least according to Sen. Mark Warner, the ranking Democrat on the Senate Intelligence Committee, those sophisticated Facebook sleuths discovered the counterfeit Russian ads in part because they were paid for in rubles. Of course, if the purchasers of the ads were Russian nationals or the Russian government, it would be a violation of the ban on foreign spending in U.S. elections. (Absent some deep conspiracy, it strains credulity to believe a U.S. citizen would use rubles to pay for a political ad.)   

As much as fun as it is to beat up on Facebook, the problem lies far deeper than any social media platform, no matter how ubiquitous. Simply put, 20th century law is being used to regulate 21st technology. The source of that law, a Supreme Court ruling in a case called Buckley v. Valeo, is 41 years old. At the time of the decision, Microsoft was nine months old and based in Albuquerque, New Mexico, and the closest forerunner of what is now called the internet wouldn’t be developed for another seven years.

Basically, Buckley concerned the ability of the government to regulate campaigns. Ruling on a campaign finance law passed by Congress in the aftermath of Watergate, the Court tried to strike a balance: allowing enough freedom for people to spend money on politics without abridging their First Amendment rights of free speech, but also allowing sufficient restrictions on money so elected offices were not auctioned off to the highest bidder. To say the court struggled with the question is an understatement. Including partial dissents and concurrences filed by five of the Justices, the opinion runs 294 pages.  

As a legal matter, what the Russians did turns on the question of what is a “political ad.” For instance, there’s no rule barring a foreign nation from advertising itself as tourist destination. The problem is when foreign interests finance campaign ads. The Court said the only ads that could be regulated were those that “advocate the election or defeat of a clearly identified candidate.” In a footnote, the Court offered some examples of what have become known as the “magic words” that define a political ad: “vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’”

To an extent, today’s regulation of political ads has become an exercise in postmodern deconstruction, with regulators deciding which words cross the line into direct advocacy and which do not. According to Politico, one of the Russian ads urged people to “vote for” Jill Stein, which is one of the “magic words” defined by the Supreme Court. This is how Politico described the ad:

Choose peace and vote for Jill Stein,” the ad reads. “Trust me. It’s not a wasted vote. … The only way to take our country back is to stop voting for the corporations and banks that own us. #GrowaSpineVoteJillStein."

This ad is clearly illegal because a foreign power is directly asking for support of a particular candidate. Yet, the legality of some of the other Russian ads that have leaked are not so clear. Last month, reported that the Russians sponsored ads with ambiguous messages about Black Lives Matter, the group that regularly protests police killings of blacks. “It appears the ad was meant to appear both as supporting Black Lives Matter but also could be seen as portraying the group as threatening,” wrote. From the way the ad has been described, it did not use any of the “magic words” which would have made the message a political ad, and therefore illegal, because the Russians were paying for it.

In fact, according to a statement by Alex Stamos, Facebook’s chief security officer, the “vast majority” of the suspect ads didn’t reference a particular candidate or even the election. “Rather, the ads and accounts appeared to focus on amplifying divisive social and political messages across the ideological spectrum — touching on topics from LGBT matters to race issues to immigration to gun rights,” the statement reads.

Since 2002, broadcast ads have been further regulated under the notion of “electioneering communications,” which bars outside groups from mounting ads for or against a “clearly identified” candidate 60 days before a general election. But online ads are something of a no man’s land in campaign regulations. In the online world, there is no notion of “electioneering communications.” In fact, Facebook has asked the Federal Election Commission to keep the rules governing online political ads as weak as possible, lest they “severely limit the range of speech.”

Congress has the power to close this loophole. Warner and Sen. Amy Klobuchar (D-Minn.) are seeking co-sponsors for a bill that would require greater disclosure of online political ads and the money behind them. This is a common sense approach to limit future foreign interference.

It is clear that Russian messing about is not a one-time problem. Both Warner and Sen. Richard Burr (R-N.C.), the chairman of the Senate Intelligence Committee, have warned that the Russians will try to meddle in the 2018 mid-term elections. That vote is only about a year away, making the need for stronger disclosure rules all the more pressing.

(Photo: Thinkstock)