Klobuchar, Warner: Political Ad Bill Needed More After Facebook Scandal

The Facebook-Cambridge Analytica scandal is further evidence that Congress needs to tighten scrutiny surrounding online political ads, Sens. Amy Klobuchar, D-Minn., and Mark Warner, D-Va., argued last week (see 1803220052).

Klobuchar and Warner used the snafu as an opportunity to draw attention to the Honest Ads Act (S-1989), which would regulate online political ads by the same rules as those on TV, radio and satellite. Klobuchar told us all the issues with Facebook are interrelated in that the social network can't be trusted to police itself. “Whether it’s data breaches or whether it’s about political ads, Facebook has -- and the other social media companies -- said, ‘Trust us,’ and I think it just increases the chances that people are going to realize that’s just not an OK answer,” Klobuchar said.

After the bill’s introduction, special counsel Robert Mueller indicted 16 Russia-linked individuals and groups for meddling in the 2016 presidential election in support of President Donald Trump. The legislation’s focus is foreign meddling, but both are related, Klobuchar said.

Political advertising markets for online platforms are essentially “the Wild West,” Warner said: “Whether it's allowing Russians to purchase political ads, or extensive micro-targeting based on ill-gotten user data, it's clear that, left unregulated, this market will continue to be prone to deception and lacking in transparency.”

The bill amends the Bipartisan Campaign Reform Act of 2002 to define paid online ads as “electioneering communication.” It requires that online platforms with 50 million monthly viewers or more maintain a public file of all electioneering communications bought by a person or group that spends more than $500 on advertising on the platform. Reps. Derek Kilmer, D-Wash., and Mike Coffman, R-Colo., introduced companion legislation (HR-4077).

Some experts noted that the bill wouldn’t have prevented the alleged abuse by Cambridge Analytica. TechFreedom founder Berin Szoka criticized the legislation’s attempt to “judicialize” platforms. He cited the 1983 case before the U.S. Court of Appeals for the D.C. Circuit, Loveday v. FCC, which involved a California ballot initiative in which tobacco companies were allegedly pouring money into a nonprofit that was buying political ads. If the tobacco companies had been buying the ads directly, it would have been considered illegal under California law. The question was: What obligation do broadcasters have to screen out that activity and determine eligibility of groups purchasing advertisements? Szoka noted Judge Robert Bork’s opinion that the government can’t expect broadcasters to function like a grand jury, which could result in speech censorship because the broadcaster will take whatever action is necessary to avoid liability. “That exact analysis, I think, plays out here,” Szoka said. Online platforms shouldn't be responsible for determining the legality of the content, he argued.

Open Markets Institute supports the legislation. The group’s researcher, Kevin Carty, said politicians in the U.S. and all over the world have “woken up to the power” of Google and Facebook. “We feel that political advertising on services like Google and Facebook should be subject to the same kind of restrictions that political ads on other services are subject to,” he said. The bill wouldn’t apply to this particular scandal, but it would address the broader problem that Americans are subject to exorbitant amounts of online advertising that lack credibility. Having the origins of advertising disclosed would help combat improper influence like that alleged of the Russians in 2016. As long as Facebook is this big, collects this much data and serves ads based on that data, it’s going to continue having these problems, he said.

Harvard law professor Yochai Benkler called the Honest Ads Act “a valuable step forward in normalizing the status of political ads online,” though the bill doesn't address that “intentional lies” aren't limited to paid digital advertising. Had the legislation been in place before the 2016 election, the proposed database would have made it easier to assess the advertisements’ impact, he said, and it could have driven down the effectiveness of ads that depend on recipients distinguishing advertisements from other content.