It’s now clear to everyone — with the possible exception of Donald Trump — that operatives linked to Russia took advantage of Facebook, Twitter and other social media platforms to stoke divisions among Americans during last year’s presidential campaign. This meddling ought to outrage Americans regardless of their party affiliation.
Now, legislation has been introduced in both houses of Congress that would attempt to make it at least somewhat harder for Russians and other foreign actors to use social media to manipulate public opinion in this country and influence elections. Equally important, it would shine more light on the sources of online advertising in election campaigns.
The Honest Ads Act sponsored in the Senate by Sens. Amy Klobuchar (D-Minn.), Mark Warner (D-Va.) and John McCain (R-Ariz.) would mandate that election-related online advertising be subject to the same disclosure and disclaimer requirements as similar ads in other media. It also would require online platforms, as well as broadcasters and cable and satellite TV companies, to make reasonable efforts to ensure that the political advertisements they disseminate comply with the existing ban on foreigners spending money to influence U.S. elections.
Election law has been painfully slow to catch up with the growing importance of online political advertising. According to Borrell Associates, a data tracking firm, political spending on digital advertising in the 2016 election cycle amounted to $1.4 billion, nearly an 800% increase from the previous presidential election. (“Digital advertising” includes search, display, email, video, social media and mobile marketing efforts.) The figure is projected to rise to $1.9 billion in the 2018 election cycle and $2.8 billion in 2020.
Online services have resisted the idea that paid political messages on their platforms should be subject to requirements that they identify those financing the ads; some have compared online political ads to trivial examples of political communication, such as campaign buttons or bumper stickers.
Those are clearly obsolete analogies. And while there may not be room for a disclaimer on a campaign button, software engineers should find it easy to satisfy the bill’s requirement that an ad state in a “clear and conspicuous manner” who paid for it. (Running the computer mouse over the ad, for example, could pull up the disclosure statement.)
Granted, there’s always the risk that foreign governments and operatives will try to conceal their involvement by funneling money through innocuous-sounding groups based in the United States. The bill wouldn’t make matters any better or worse on that front.
A more fundamental challenge for the bill’s authors is that much of the meddling done in last year’s campaign wasn’t in advertisements — it was in news (and fake news) stories circulated, tweeted and retweeted online. Many of the posts attributed to Russia focused on divisive social issues such as race, gun control, immigration and gay rights. Such communications would largely be ignored by the Klobuchar bill.
What the measure would do is require internet companies to maintain records not just of election-related advertisements but also of ads related to “a national legislative issue of public importance.”
There are two problems with this provision, however. First, it’s a disproportionate response to the possibility that Russians or other foreigners may be violating U.S. election law. While foreigners are prohibited from spending money on election-related advertising, the Federal Election Commission and the courts have said they are allowed to subsidize “issue ads.”
A more serious issue is that, unlike radio and television stations, internet platforms aren’t “public” entities operated under a government license. There may be 1st Amendment problems with subjecting them to the same record-keeping requirements that are imposed on radio and TV stations.
The fact that Congress has limited power to regulate online forums for political speech doesn’t mean that social media companies can’t act on their own to be more vigilant about manipulation of their platforms by foreign actors, whether it take the form of deceptive advertising or “fake news.” After Facebook revealed that a Russian company with ties to the Kremlin had purchased more than $100,000 worth of divisive ads on its site, Chief Executive Mark Zuckerberg pledged to “do our part to defend against nation states attempting to spread misinformation and subvert elections.” On Friday, Facebook announced that it would require disclosure by buyers of political ads and adopt other transparency measures.
That sort of self-policing is clearly part of the solution. But so is measured legislation that requires transparency in election advertising regardless of where it appears.
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