In 2010, I advised the Maryland State Board of Elections on its initial social media and digital electioneering transparency regulations. At that time, there was an effort to require digital political ads to have the same transparency and accountability rules as those governing other media, including television, radio and print, all of which must follow strict guidelines created by the Federal Election Commission and the Maryland State Board of Elections to ensure the public knows who is responsible for the political ads they see. Unfortunately, intense lobbying by Facebook and Google derailed it.
At that time, the digital advertising industry argued that self-regulation was sufficient and outside interference would inhibit innovation and create First Amendment issues. That’s still the argument today, even as indictments are handed down as part of Special Counsel Robert Mueller’s investigation into Russia’s usage of social media to interfere with our 2016 election.
Mr. Mueller’s investigation has proven that the digital advertising industry’s self-regulation approach has failed and that these arguments are nothing more than alternative facts cooked up to ensure that fake news and anonymous political ads can easily be distributed with no checks or balances. After Maryland’s effort to create greater transparency and accountability for social media political ads died, the same arguments and tactics were subsequently used to kill similar efforts at the Federal Election Commission.
Digital advertising is now the 21st century’s dominant advertising medium, and during the past several election cycles, digital political ad spending has skyrocketed. According to AdAge, digital political advertising has increased 789 percent since the 2012 election cycle to reach $1.4 billion, while TV political ad spending fell 20 percent, and radio political ad spending dropped 23 percent. This is a staggering shift that demonstrates how the public now consumes political advertising.
The 2016 election showed how behavioral advertising platforms that sell your personal information to the highest bidder have the ability to affect elections not just in the United States but around the world. Facebook and Twitter, in particular, are so afraid for the public to really understand how this occurs that both companies have intentionally destroyed the evidence that could have shed more light on the matter.
While Congress and the Federal Election Commission have each put forth proposals to strengthen digital political ad regulations, it’s doubtful these solutions will be enacted. And even if they were, they appear to be toothless. For example, the Federal Honest Ads Act only applies to websites that garner 50 million unique monthly visitors. If this is the standard in Maryland, political ads that appear online from The Washington Post, Facebook and Twitter would be regulated differently than ads served from The Baltimore Sun, The Capital Gazette or The Frederick News-Post, among other news sites, since they don’t receive the Internet traffic needed to trigger the Honest Ads Act.
The Online Electioneering Transparency and Accountability Act (House bill 981 and Senate bill 875) that Dels. Alonzo Washington and Marc Korman and Sen. Craig Zucker have sponsored, and that I strongly support, would better protect Marylanders by requiring political advertising placed on all media platforms have the same regulations. For example, it would apply equally to political ads placed on Facebook, The Baltimore Sun, National Public Radio or WJZ-13.
While this bill is not a silver bullet to ensure that Russia or another foreign country won’t interfere with our future elections, it will make it much more difficult for them to buy social media ads to interfere with our elections, and it will also hold digital platforms to the same requirements as other media that accept political advertising dollars. This in turn will create greater accountability and transparency in our elections.
Bradley Shear focuses his law and consulting practice on cyber security, privacy, and technology issues. He wrote this for the Baltimore Sun.