By Natalia Holliday, Web Editor
In the late 1990s, political advertiser Alan Gould proposed an idea to promote political campaigns on the internet by posting banner ads on websites. To Gould, it was clear that the internet could be used to target messages and reach vast populations in a click. To his audience, he was speaking an alien tongue.[1] Although nowadays politics and the internet are the best of frenemies, it seemed few people in the early-internet years recognized that this budding digital medium was poised to become a new frontier for democracy.
Today social media, especially Facebook, dominates our social landscape. As of March 1, 2018, about two-thirds of American adults were reported to be Facebook users, with three-quarters of those users accessing the social media platform on a daily basis.[2] Use of social media stretches far beyond merely connecting with friends and sharing sloth videos; as of August 2017, 45% of Facebook users utilized the platform as a means of obtaining news.[3]
When it comes to political advertising on social media, the numbers indicate massively ballooning use. When former President Barack Obama first utilized online platforms to gain traction in his 2008 campaign, all election candidates combined spent about $22.5 million on online political ads. By the 2016 election, that number exploded to $1.4 billion.[4]
The eruption in spending on online political ads is the manifestation of what Alan Gould realized in the late-’90s: the ability for political advertisers to target users and sway opinions on a massive scale.
While psychosocial manipulation is generally the point of mass advertising, some critics of online political advertising cite to “dark advertising” as a threat to democracy.[5] Dark advertising occurs when advertisers “micro-target” users by “promising one thing in front of one group of voters while simultaneously running an ad with a completely opposite message in front of a different group of voters.”[6] These ads are not posted to the general public; rather, they are specifically directed toward users of certain demographic groups, but appear to be like any other general public ad.[7]
Practices like dark advertising came to the forefront of America’s attention when a grand jury indicted 13 Russian individuals and three Russian companies for meddling in the 2016 election, in large part by manipulating social media users.[8] One count charged the collective “Organization” with seeking to “conduct . . . ‘informational warfare against the United States’ through fictitious U.S. personas on social media platforms.”[9]
The defendants purchased online advertisements to push social media groups they created, such as “Blacktivist” and “Army of Jesus,” to other users.[10] These social media groups frequently asserted strong anti-Hillary Clinton sentiments.[11] The Organization did not focus only on Trump-supporters; it targeted specified minority groups with anti-Hillary messages, with the intent to dissuade members of those groups from voting for Clinton.[12]
The defendants also purchased and pushed online political advertisements in the months before the election, referring to Clinton as “Satan” and, somewhat ironically, equating her with “manipulation.”[13] The ads were purchased through Russian bank accounts registered in fictitious American names, as well as through PayPal accounts.[14] What later events revealed, of course, was that Facebook was none the wiser.
The investigation, indictment, and pervasiveness of “fake news” re-emphasized an old tenet perhaps forgotten by America: Transparency is a baseline requirement for democracy to properly function.
Because foreigners meddled in a federal election, their actions were governed by federal election laws regulating influence by foreign nationals and misrepresentation.[15] But at least one state has realized the potential for groups, even domestic groups, to use the same tactics in local elections.[16]
Seattle, Washington, is the first locality in the United States to enforce political ad disclosure laws against social media and internet-based political ads.[17] Under its municipal code:
Each commercial advertiser that has accepted or provided political advertising during the election campaign shall maintain open for public inspection . . . documents and books of account which shall specify:
1. The names and addresses of persons from whom it accepted political advertising;
2. The exact nature and extent of the advertising services rendered; and
3. The consideration and the manner of paying that consideration for such services.[18]
The law defines “commercial advertiser” as “any person who sells the service of communicating messages or producing political advertising.”[19] Additionally, “political advertising” includes print, broadcast, “and other means of mass communication, used for the purpose of appealing…for votes…in an election campaign.”[20] Television stations and newspapers were the traditional entities covered by the statute,[21] but the Seattle Ethics and Elections Commission (SEEC) says social media and their political ads fall squarely within those definitions.[22]
A “hotly contested” local election year and serious reflection over the potential of the threat posed by the Russian meddling[23] led the SEEC to demand information from Facebook.[24]
After a reporter for The Stranger unsuccessfully attempted to retrieve political ad data from the tech giant[25] (while easily obtaining the informative from a local television station[26]), the SEEC’s executive director Wayne Barnett sent a letter to Facebook requesting the company comply with Seattle’s disclosure laws.[27] According to Barnett, Facebook’s responsive “bare-bones spreadsheet” was “inadequate” given the fact that the company was paid $300,000 to disseminate political ads.[28] Indeed, the spreadsheet supplied to the SEEC accounted for only $182,451 worth of ad purchases,[29] with some individual totals not matching totals reported by those individuals and campaigns themselves.[30] Furthermore, at best, the spreadsheet was vague in detailing the nature and extent of the ad services.[31]
Noting the “ample time” the SEEC gave Facebook to comply with the law, Barnett and City Attorney Pete Holmes are prepared to file charges against Facebook if they find the company broke Seattle’s laws.[32]
Seattle’s enforcement of disclosure laws against Facebook shows both its proactivity and its reactivity, but will the same spirit for online transparency make its way to the federal government?
Although recently touting its dedication to transparency,[33] Facebook apparently hopes not. Since 2011, the company has sought blanket exemptions from the political ad disclosure rules set forth by the Federal Elections Commission (FEC), arguing that speech and innovation would be suppressed by such requirements.[34]
In a 2011 vote, the FEC split 3-3 on whether to grant such exemptions, which, on the one hand, denied Facebook its demands, but on the other hand, did not directly require Facebook itself to do anything. Rather, advertisers on the site were left subject to a previous ruling requiring disclosure. Taking the vote as perhaps a de facto exemption, Facebook did nothing to enforce disclosure requirements against its advertisers. It regularly permitted ads to run without disclosures, leaving compliance entirely in the hands of the ad buyers.[35]
Now that Russian meddling has shaken the bones of American democracy, the federal government is readdressing the possibility of enforcing disclosure laws against Facebook. The Honest Ads Act is a bipartisan proposal seeking to “close the loophole that allows internet ads to avoid regulation” and require internet platforms to maintain public files[36] similar to those required by Seattle. While a possible victory for transparency, the question remains whether Congress can get past its norm of partisan cat-fighting and gridlock and actually work toward its enactment.
With so many voices demanding transparency, it seems reasonable that legislatures and companies alike will likely attempt to appease the masses and provide the information desired. But it begs the question: When the public gets the information it demands, will we even believe it?
In early 2017, the Pew Research Center queried Democrats and Republicans on their attitudes toward the role of news media in politics and found deep partisan division. The questions yielding the highest percentages of “yes” responses among both parties included: “Media criticism of leaders keeps them from doing things they shouldn’t” (89% D, 42% R), and “News organizations tend to favor one side” (87% D, 53% R).[37] Questions yielding relatively low “yes” responses included: “Information from national news organizations is very trustworthy” (34% D, 11% R), and “National news media do very well at keeping [people] informed” (33% D, 18% R).[38]
The percentages seem to imply that, while Democrats and Republicans still believe in the valuable role of news media in the political process, they recognize the disparities in coverage and do not necessarily trust the news media enough to fulfil its duties.
On top of the general distrust, add polarization to the mix. A 2014 Pew Research study concluded, “When it comes to getting news about politics and government, liberals and conservatives inhabit different worlds. There is little overlap in the news sources they turn to and trust.”[39]
As political advertisers become more and more sophisticated in the art of micro-targeting on social media, and the public becomes more and more ideologically divided and isolated, it is difficult to envision a solution that actually has the effect of restoring public trust in democracy and media. Transparency is a baseline tenet for a properly functioning democracy, but in an age of distrust of media and the government, what is its practical value?
Natalia Holliday is a 2019 J.D. candidate and web editor of Juris Magazine. She is an enthusiastic classmate and law clerk at Edgar Snyder & Associates. She and several other Duquesne Law students are currently working on founding Duquesne Law’s first Philosophy of Law Club.
Sources
[1] Julia Carrie Wong, The dark art of political advertising online, The Guardian (Mar. 19, 2018, 4:00 PM), https://www.theguardian.com/technology/2018/mar/19/facebook-political-ads-social-media-history-online-democracy.
[2] Aaron Smith and Monica Anderson, Social Media Use in 2018, Pew Research Center (Mar. 1, 2018), http://www.pewinternet.org/2018/03/01/social-media-use-in-2018/.
[3] Elisa Shearer & Jeffrey Gottfried, News Use Across Social Media Platforms 2017, Pew Research Center (Sept. 7, 2017), http://www.journalism.org/2017/09/07/news-use-across-social-media-platforms-2017/.
[4] Wong, supra note 1.
[5] Id.
[6] Id.
[7] Id.
[8] Indictment, United States of America v. Internet Research Agency LLC et al. (No. 1:18-cr-00032-DLF), available at https://www.justice.gov/file/1035477/download.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Eli Sanders, We’re Asking the Tech Giants to Comply With Seattle’s Law on Political Ad Transparency. Will They?, The Stranger (Dec. 4, 2017, 2:15 PM), https://www.thestranger.com/slog/2017/12/04/25606100/were-asking-the-tech-giants-to-comply-with-seattles-law-on-political-ad-transparency-will-they.
[17] David Ingram, Seattle says Facebook is violating city campaign finance law, Reuters (Feb. 5, 2018, 3:31 PM), https://www.reuters.com/article/us-facebook-politics/seattle-says-facebook-is-violating-city-campaign-finance-law-idUSKBN1FP2MB.
[18] Seattle, Wash. Mun. Code Sec. 2.04.280.
[19] Seattle, Wash. Mun. Code Sec. 2.04.010.
[20] Id.
[21] Jim Brunner & Daniel Beekman, Facebook, Google not complying with Seattle’s political-ad disclosure law, watchdog says, The Seattle Times (Feb. 6, 2018, 1:17 PM), https://www.seattletimes.com/seattle-news/politics/facebook-not-complying-with-seattles-political-ad-disclosure-law-watchdog-says/.
[22] Eli Sanders, City of Seattle Tells Facebook and Google to Hand Over Political Ad Data, The Stranger (Dec. 14, 2017, 6:00 AM), https://www.thestranger.com/slog/2017/12/14/25627782/city-of-seattle-tells-facebook-and-google-to-hand-over-political-ad-data.
[23] Brunner & Beekman, supra note 21.
[24] Id.
[25] Sanders, We’re Asking Tech Giants, supra note 16.
[26] Eli Sanders, Unlike Big Tech, Local TV Does Comply With Seattle’s Law on Political Ad Transparency, The Stranger (Dec. 7, 2017, 6:27 AM), https://www.thestranger.com/slog/2017/12/07/25615047/unlike-big-tech-local-tv-does-comply-with-seattles-law-on-political-ad-transparency.
[27] Letter from Wayne Barnett, Exec. Dir., SEEC, to Facebook, Inc. (Dec. 12, 2017), https://www.thestranger.com/images/blogimages/2017/12/13/1513207003-seattle_letter_to_facebook__12.12.17_.pdf.
[28] Brunner & Beekman, supra note 21.
[29] Letter from Karen Berenthal, Associate Gen. Counsel, Facebook, Inc., to Wayne Barnett, Exec. Dir. SEEC (Feb. 2, 2018), https://www.documentcloud.org/documents/4367907-2018-02-02-Letter-to-W-Barnett-With-Attachment.html.
[30] Brunner & Beekman, supra note 21.
[31] Id.
[32] Id.
[33] Id.
[34] Sarah Frier & Bill Allison, Facebook Fought Rules That Could Have Exposed Fake Russian Ads, Bloomberg (Oct. 4, 2017, 5:00 AM), https://www.bloomberg.com/news/articles/2017-10-04/facebook-fought-for-years-to-avoid-political-ad-disclosure-rules.
[35] Id.
[36] Wong, supra note 1.
[37] Parties show more disagreement on attitudes about news media, Pew Research Center (May 9, 2017), http://www.journalism.org/2017/05/10/americans-attitudes-about-the-news-media-deeply-divided-along-partisan-lines/pj_2017-05-10_media-attitudes_0-02/.
[38] Id.
[39] Amy Mitchell et al., Political Polarization & Media Habits, Pew Research Center (Oct. 21, 2014), http://www.journalism.org/2014/10/21/political-polarization-media-habits/.
