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We Regulate TV And Radio Ads. Facebook Ads Should Be No Different.

How can we prevent future meddling by foreign powers while safeguarding the ability of Americans to engage in vigorous debate?

Cross-posted from Huff­Post.

It’s not an exchange anyone could have imagined just a couple of years ago: a Repub­lican senator and a Silicon Valley titan agree­ing on the need for regu­la­tion.

Mark Zuck­er­berg is facing intense scru­tiny over revel­a­tions that Donald Trump-linked data firm Cambridge Analyt­ica had obtained data on 87 million Face­book users without their consent, and that Russi­ans were able to use the social network to meddle in Amer­ican elec­tions. In a Senate hear­ing Tues­day, Sen. Lind­sey Graham (R-S.C.) asked Zuck­er­berg, “Do you embrace regu­la­tion?” Zuck­er­berg replied, “The real ques­tion is … what is the right regu­la­tion, not whether there should be regu­la­tion.”

It’s diffi­cult to disagree with Zuck­er­ber­g’s assess­ment, partic­u­larly when it comes to taking steps to protect the integ­rity of Amer­ican elec­tions. But what are the right rules of the road? How can we prevent future meddling by foreign powers while safe­guard­ing the abil­ity of Amer­ic­ans to engage in vigor­ous debate?

A good start­ing point would be regu­la­tions that restore the effect­ive­ness of our decadeslong ban on foreign polit­ical spend­ing. That ban has exis­ted for more than 50 years, and was origin­ally enacted as a national secur­ity meas­ure to protect Amer­ican policy from the influ­ence of foreign powers. Lawmakers have long recog­nized that Amer­ican popu­lar sover­eignty — the exer­cise of the Amer­ican people’s power to decide the course their govern­ment takes — must be protec­ted from foreign powers that might try to use polit­ical spend­ing to further their interests at our expense.

Yet over the years, cracks have developed in the walls that we built to protect our polit­ical process. That’s partly due to regu­lat­ors’ fail­ure to keep up with the rapid devel­op­ment of the inter­net, which helped Russian entit­ies secretly buy polit­ical ads in 2016. The radical changes to campaign finance law wrought by the Supreme Court’s 2010 decision in Citizens United created new chinks in the armor. As Pres­id­ent Barack Obama noted in his State of the Union address that year, the decision opened “the floodgates for special interests, includ­ing foreign corpor­a­tions, to spend without limit in our elec­tions.”

We still don’t know the full extent of Russi­a’s spend­ing in the 2016 elec­tion. But we know inflam­mat­ory ads purchased by accounts connec­ted to the Krem­lin reached millions of users of Face­book, Twit­ter and Google. Mean­while, special coun­sel Robert Mueller’s invest­ig­a­tion into Russian inter­fer­ence in the pres­id­en­tial race seems to raise new ques­tions every day about whether even more cash was funneled through so-called dark-money groups that can hide the iden­tity of their donors, as well as other entit­ies controlled by the Krem­lin.  

Zuck­er­berg and Face­book have announced plans that could help prevent illegal foreign polit­ical spend­ing on their plat­form. Those include creat­ing a polit­ical ad data­base and an address veri­fic­a­tion system, as well as requir­ing some disclos­ure of ad buyers. That mirrors a series of reforms we’ve laid out in a new report for New York Univer­sity School of Law’s Bren­nan Center for Justice.

But there are holes in even these propos­als. For instance, Face­book’s disclaim­ers won’t be sticky, mean­ing that when a paid post is shared by another user, they won’t show up. Moreover, once the spot­light moves on and the cameras are switched off, who’s to say Face­book won’t reverse course?

We need to update polit­ical spend­ing laws for the inter­net with the frame­work we already use for tele­vi­sion and radio ads. In broad­cast­ing, every ad ends with a spoken and writ­ten disclaimer telling the viewer who paid to make and air it. Apply­ing the same rules to the inter­net would mean requir­ing disclos­ure of the person or group that paid for any polit­ical ad, and expli­citly banning foreign entit­ies from purchas­ing ads that mention candid­ates before an elec­tion.

We should also require a public, search­able data­base of all online polit­ical ads on Face­book and other plat­forms. Online polit­ical ads purchased by Russi­ans the run-up to the 2016 elec­tion were often polar­iz­ing and false. For instance, one ad from the “Being Patri­otic” account refer­enced a Boston gunfight in which two police officers were seri­ously injured. The ad claimed the gunman was a “BLM move­ment activ­ist” despite a total lack of evid­ence of any connec­tion to Black Lives Matter or any other protest move­ment. These ads were targeted at specific Face­book users, and there was no oppor­tun­ity for journ­al­ists to fact-check them, or for the public to hold the advert­isers account­able for inflam­mat­ory or false rhet­oric.

Finally, we should require those selling polit­ical ads on the inter­net to help enforce the ban on the foreign purchase of polit­ical ads them­selves. Face­book, Twit­ter and Google have all recently announced efforts to confirm the iden­tity of ad purchasers, though the exact proced­ures they are adopt­ing are not entirely clear. Face­book has been perhaps the most forth­com­ing, announ­cing plans to require polit­ical advert­isers to provide govern­ment-issued ID and receive an access code at a U.S. mail­ing address.

Many of these reforms are part of the long-stalled Honest Ads Act, a bill intro­duced by Sens. Amy Klobuchar (D-Minn.), John McCain (R-Ariz.) and Mark Warner (D-Va.), and now expli­citly suppor­ted by Face­book and, as of Tues­day, Twit­ter. But even if it’s enacted, the bill will not by itself prevent Russia or other foreign powers from spend­ing in our elec­tions.

Indeed, the bigger dragon to slay is the threat of dark money: elec­tion spend­ing by groups that do not have to disclose their donors. This includes groups with names famil­iar to most Amer­ic­ans, like the U.S. Cham­ber of Commerce and the lobby­ing arm of the National Rifle Asso­ci­ation, as well as more innoc­u­ous-sound­ing groups like Amer­ic­ans for Prosper­ity and Major­ity Forward. Did the NRA or other groups that keep their donors secret make elec­tion expendit­ures with funds from Russia or other foreign powers? We cannot know ― and will not know in future elec­tions ― as long as dark-money groups exist.

Here again, there’s a poten­tial fix. The DISCLOSE Act, versions of which have been intro­duced in Congress since 2010, would require any group that spends more than a trivial amount on polit­ical advert­ise­ments to disclose its major donors. Groups like the NRA that also engage in nonelect­oral activ­ity would have the option of creat­ing a separ­ate polit­ical-expendit­ures account. These groups would only be able to spend contri­bu­tions that were expli­citly made to this account, and donors would under­stand that gifts over a certain amount to that account could not be anonym­ous.

Lastly, with the growth of corpor­ate spend­ing in Amer­ican elec­tions, we must ensure that domestic corpor­a­tions making such expendit­ures are not financed by a foreign corpor­a­tion or indi­vidual. Cambridge Analyt­ica has recently faced ques­tions about whether its work on the 2016 campaign was direc­ted by its U.S. employ­ees or by its Brit­ish parent firm, SCL Group, which would have viol­ated the ban on foreign activ­ity in Amer­ican elec­tions.

And we have seen that indi­vidu­als and corpor­a­tions ― like Russi­a’s Inter­net Research Agency, which was organ­ized as a busi­ness corpor­a­tion ― can act as prox­ies for a foreign state. Congress should clarify that the ban on polit­ical spend­ing by foreign nation­als extends to compan­ies that are owned or controlled by foreign nation­als.

Zuck­er­ber­g’s testi­mony this week demon­strates that Amer­ica’s elec­tions remain vulner­able to foreign manip­u­la­tion. Face­book’s new prom­ises to root out foreign spend­ing on polit­ical and issue ads are welcome.

But even if those prom­ises trans­late into effect­ive action ― and that is far from assured ― we will still need compre­hens­ive reform at the federal level. Our recom­mend­a­tions might not wholly prevent foreign meddling in the future, but they would restore a long-stand­ing defense against foreign inter­fer­ence, a ban that has served us well and could again.

Lawrence Norden is deputy director of the demo­cracy program at The Bren­nan Center, and Ian Vandewalker is senior coun­sel in the same program. They are the authors of the new Bren­nan Center report ″Getting Foreign Funds out of Amer­ica’s Elec­tions.”

(Photo: Flickr/Tech­Crunch)