Russian-Funded Ads and Facebook: Is It Time for the FEC to Revisit Regulations for Advertising Through Social Media?

Facebook announced on September 6, 2017 that it received approximately $100,000 for politically divisive ads between June 2015 and May 2017 from accounts “that were likely operated out of Russia.” However, in July 2017 the tech company said, “[Facebook has] seen no evidence that Russian actors bought ads…in connection with the election.”

In the announcement, Facebook acknowledged that it had identified “roughly 3,000 ads” associated with 470 suspicious accounts and pages.

Facebook stated that it has shared the information with US authorities, though it refuses to release copies of the ads publicly; the announcement suggests some ads did specifically reference the presidential election, while most of the ads focused on amplifying divisive political messages on race, guns, immigration, and LGBT topics.

The recent disclosure ties into a broader discussion on how online advertising technology—which monetizes clicks and views, commodifies personal data, and enables anonymous, targeted ad delivery—encourages the spread of disinformation and subverts election finance and consumer protection laws.

In response, Common Cause, a watchdog group, has filed a complaint with the Federal Elections Commission (“FEC”) regarding possible Federal Election Campaign Act (“FECA”) violations by foreign nationals.

“I do think this raises important issues, important questions about our internet disclosure rules and whether the American people are in a position to know where the information they learn on the internet is coming from,” said FEC Commissioner Ellen Weintraub to Politico.com.

Senator Mark Warner, vice chairman of the Senate Intelligence Committee, which is actively investigating Russian meddling in the election, echoed that idea: “[t]he American people deserve to know both the content and the source of information that is being used to try to affect their votes.”

Buying ads on Facebook is easy and cheap. All someone has to do is create an account, then create a page (an account representing a business or organization). The page owner can then select from several options designed to spread the ad while eliciting “likes”, page views, shares, and other forms of engagement. The ads can be targeted based on location, demographics, and user interests. The page owner pays Facebook (with credit card or PayPal) based on the number of clicks or impressions achieved, up to a preset budget limit. Facebook has a policy against “inauthentic” accounts, though any user that is friends with their sister’s cat on Facebook knows such policies are not thoroughly enforced.

Some readers may scoff at the seemingly small budget, but it is no small task to predict what this activity signifies, given the growing number of opportunities to access online media and advertising channels.

For example, consider that “[t]he nature of online advertising is such that ads appear on people’s screens for just a few hours, and are limited to the audience that the advertiser has chosen. So, for example, if an advertiser micro-targets a group such as 40-year-old female motorcyclists in Nashville, Tennessee, (Facebook audience estimate: 1,300 people) with a misleading ad, it’s unlikely anyone other than the bikers will ever see those ads.” From ProPublica, which has started a crowdsourcing tool to collect political ads, beginning with the upcoming September 24 German parliamentary election.

But how would FEC laws need to be changed to address the growing tangle of online digital media? And could this type of activity have even been prevented?

The FEC has established what some consider to be a split system regarding campaign finance and online speech. Guidelines established in 2006 include “paid Internet advertising placed on another person’s website” in the category of regulated “public communications,” but exclude individual and media activity in order to remove restrictions on an individuals’ ability to use the internet as a means of “civic engagement and political advocacy.”

These guidelines have invited a wide range of interpretations on the requirements of funding and accountability, including, for example, the report of a super PAC that coordinated with the Clinton campaign to fund positive messaging from individuals. Internet advertising technology has lowered the barrier to access, and the openness and ubiquity of social medial platforms has greatly expanded the scope of individual activity.