Few Free-Speech Implications Seen if Congress Makes Social Media Disclose Political Ad Sponsors

Requiring social media companies to disclose who sponsors political ads would be feasible and wouldn't pose free-speech problems, experts told us last week. Sens. Amy Klobuchar, D-Minn., and Mark Warner, D-Va., want to require companies like Facebook, Google and Twitter to publicly file such reports, similar to FCC requirements on broadcasters and cable and satellite providers. Facebook recently revealed at least 3,000 political advertisements were linked to Russian interests seeking to influence the U.S. presidential election.

Klobuchar told reporters she and Warner haven't gotten Republican support yet for the proposal outlined in a "Dear Colleague" letter. "We would love to have Republican co-sponsors," she said. "We have approached a number of them individually, their offices, and we're not able to get anyone on it. And, so, we'll continue to work on that." They said in the letter that the Federal Election Commission "failed to take sufficient action" to address online political ads and current laws don't adequately address the matter. FCC and FEC rules "create a robust disclaimer and public access regime" for broadcasters and others but wouldn't regulate a platform like Facebook, they said.

The senators would require digital platforms with more than 1 million users to maintain a public file -- similar to rules for broadcasters and others -- of all electioneering communications by those spending more than $10,000 in aggregate for online political ads. The file would contain a digital copy of the ad, its publication date and times, purchaser's contract information, description of the target audience, number of views generated and rates charged. The bill would require platforms "make reasonable efforts" to assure foreign nationals aren't buying. Twenty House and Senate Democrats, led by Sen. Martin Heinrich of New Mexico and Rep. John Sarbanes of Maryland, urged the FEC in a Sept. 20 letter to forge new guidance preventing foreign nationals from using online political ads to interfere with U.S. politics. Spending on digital political commercial materials rose eightfold from the 2012 to the 2016 cycle, to a 14.4 percent share of the $9.8 billion market, Borrell Associates reported in January.

“We’re open to reviewing any specific congressional proposals,” said a Facebook spokesman. CEO Mark Zuckerberg in a video address Sept. 21 said the company will voluntarily disclose information and its standards will be higher than reports by broadcasters. "Not only will you have to disclose which page paid for an ad, but we will also make it so you can visit an advertiser's page and see the ads they're currently running to any audience on Facebook," he said. Google and Twitter didn't comment. After a Twitter representative appeared before a Senate Intelligence Committee inquiry Thursday about election interference by Russia, the company blogged that it supports more transparency for political promotions.

Sunlight Foundation Deputy Director Alex Howard said Facebook's plan is interesting but "not anywhere close to a fully-baked proposal." His organization has long sought online disclosure similar to requirements for broadcasters. He said Warner and Klobuchar reached out to Sunlight about principles and ideas of how the rules should work. "We think it should be ... proactive disclosure in machinable format, online to the public and election regulators daily," Howard said. "Platform parity is not unreasonable." These companies should file such reports to the FCC since it already publishes a public ad file for other entities, he said.

Wilkinson Barker broadcast attorney David Oxenford said the proposals for online ad transparency appear to go deeper than those for radio and TV broadcasters. He said broadcasters aren't required to "police" ad buyers to make sure they're complying with all election rules nor identify the buyer. But he said there's a push for broadcasters to provide more information. The FCC's system has yielded few complaints over the years with "quibbles" over the details of the disclosure, not the disclosure itself, he said.

"I have concerns that if social media is used in a way that is not transparent, our democracy is threatened," said Duane Morris tech and internet law attorney Eric Sinrod. He said it's possible ordinary voters would consider information on social media differently if they knew the source was another government or entity different from what they were led to believe: Questions on online transparency will likely focus on cost and whether what's required of online platforms is more onerous than for broadcasters. He thinks there's more recognition and appreciation for transparency since Facebook's revelation.

Experts didn't think free speech would be an issue. Sinrod said internet users can speak freely, to a certain extent. If they say something false that causes harm, it could give rise to a defamation claim, but he didn't think transparency requirements would hinder free speech. Some free-speech implications were raised by courts at various times, said Oxenford, but added that he didn't recall it being raised directly with the FCC rules recently. "There’s always a possibility of a First Amendment challenge, but disclosure itself generally seems to be accepted to some degree," he said.