As lawmakers in Olympia watch the standoff between Seattle and Facebook over online political ads, they're considering a bill that would make it even more obvious that tech giants need to follow local transparency laws.
State Senator Guy Palumbo, a Democrat who hails from Maltby in south Snohomish County, recently introduced Senate Bill 6075 to address his concern that digital platforms like Facebook aren't doing enough to protect our elections.
What Sen. Palumbo wants is essentially the same thing Seattle's been demanding: detailed, timely disclosures that allow the public to make sense of what's happening in the current "wild west" of online political advertising.
“You can’t just use the online medium to influence an election in a big way and not have disclosure," Sen. Palumbo said. "That’s just completely opposite of our state law.”
The Washington State Public Disclosure Commission has said repeatedly that existing transparency laws already apply to Facebook, Google, and other major players in online political advertising. "But," PDC spokesperson Kim Bradford told me on Friday, "Senate Bill 6075 would help underscore that fact."
Likewise, the director of Seattle's Ethics and Elections Commission, Wayne Barnett, has declared that our city's municipal law on election ads—which is pretty much identical to state transparency law—must be followed by digital platforms.
Both Seattle and state law require the companies to disclose "the exact nature and extent" of the political ad services they've provided, as well as "names and addresses" of the ad purchasers and a clear money trail.
Sen. Palumbo said he just wants to use his bill to "make it explicit" that state code for sure applies to digital platforms, and he plans to do this by tinkering with the legal definition of political advertising. Right now that definition encompasses political ads delivered over any "means of mass communication"—and, obviously, digital platforms like Facebook are a "means of mass communication," which is why multiple regulators already say Washington's transparency laws apply to Facebook and similar tech companies.
Sen. Palumbo's bill would simply add "internet or digital advertising" to the list of policeable mediums in the official definition, so that it's beyond crystal clear.
In addition, it would allow companies to make disclosures around political ads via web pages, rather than through "books of account that shall be open for public inspection during normal business hours," as the current law's old-timey language requires.
Sen. Palumbo's proposed bill would also mandate that "small online political advertising"—like the political ads frequently sold and published by Facebook and Google—"include the sponsor's name" and, potentially, "additional required disclosures through alternatives specified by the [Public Disclosure] commission." (For example, additional disclosure through hyperlinks on small political ads that go to a web page listing detailed information about the ad's purchaser.)
Tech companies have concerns, however, and made them somewhat clear on January 31 when a lobbyist for the Internet Association stepped forward as the only person to testify at the bill's first committee hearing in Olympia.
Facebook and Google, which have both been told to turn over political ad details to the City of Seattle, are among the Internet Association's most prominent members.
At the hearing, an interesting and seemingly loaded exchange took place right off the bat between the Internet Association lobbyist, Rose Feliciano, and Democratic Senator Sam Hunt of Olympia. He chairs the State Government, Tribal Relations, and Elections Committee.
Feliciano: Good morning... I represent the Internet Association. IA represents more than 40 of the world's leading internet companies and advances public policy solutions that foster innovation, promote economic growth, and empower the people through a free and open internet.
Senator Hunt: Should we have the national anthem after that?
Hunt's tone was far more sarcastic than admiring.
Feliciano, plugging along, explained that she's new—as is the Seattle outpost of the Internet Association—and then went right into an explanation of why the companies that pay her to lobby on their behalf are worried about Sen. Palumbo's bill.
“Digital platforms are inherently different than other formats," Feliciano explained. "Online platforms have numerous small advertisers and the platforms themselves aren’t necessarily aware of what is, and what is not, a political ad in the context of billions of items posted as content."
She continued: "I think what IA and our members want to express to you is: the mechanics matter. We support transparency, but we have concerns with how the bill is structured right now.”
To underline those concerns, Feliciano explained that if anyone is to be found in violation of this state's transparency laws, it shouldn't be Facebook or Google, which she presented as "not necessarily" paying close attention to the paid political advertisements that get placed on their platforms.
“The burden should be on the advertiser," Feliciano said. "They need to be identifying themselves as a political advertiser. The platforms may not necessarily know that.”
Feliciano's view is not shared by Sen. Palumbo.
"It's not rocket science," he said. “If you are going to do business here, you have to adhere to the laws in this state"—and that, Sen. Palumbo said, means knowing who's paying for a political ad on your site.
Sen. Palumbo himself placed more than $3,400 worth of Facebook ads to win his 2016 run for an open state senate seat, so he knows the company already has "a gating procedure" for political ads. Beefing up that gating procedure and keeping human beings involved in the political ad review process should help Facebook and other companies sort out what's a political ad and what's not, he said.
Once Facebook, which already handles billions of "likes" and "shares" and more each day, gets a solid handle on all the political ads and electioneering communications it publishes to help its customers influence Washington State's elections, the company will have less trouble responding to political ad disclosure requests made under our state's laws. (Like the still-unmet request I made of Facebook 74 days ago.)
Facebook and other companies may not want to be responsible for tracking such things, Sen. Palumbo said, but the law's the law. And for good reason.
“If you see a Facebook ad come up in your feed that says, ‘Eli kicks kittens’”—not true!—“you can take a screenshot of that ad and go, 'Okay, this is electioneering per the PDC rules,'" Sen. Palumbo said. "But then how do you actually get the information? ... Online it’s completely dark money. You have no idea who it is. And the only recourse you’d have would be to go to the commercial advertiser, in this case Facebook, and say, ‘Look, here’s the screenshot. Do a search of your ad database, find out who this is.’”
The size of the online political ad market is only growing. In Seattle's 2017 municipal elections, local campaigns spent more than $450,000 on Facebook and Google ads—a 5,000 percent increase from four years previous. In statewide elections in 2017, nearly $900,000 in expenditures were marked by campaigns as "digital ads." That means it's only becoming more important that transparency requirements keep pace.
“It’s like a brave new world," said Sen. Palumbo, who worked at Amazon before running for state senate and is no technophobe. "You gotta keep up with it... It’s a brand new medium. The scale of it is insane. It’s getting larger by the day. And we’re going into an election year, too. We really need to figure this out before the 2018 elections."
In response to an interview request from The Stranger, a DC-based representative of the Internet Association sent along a statement on Feliciano's behalf that repeated her earlier concerns. Sen. Palumbo's bill, the statement said, "does not consider the sheer volume of content posted on online platforms or provide guidance for when an online platform does not know posted content is political. We are committed to engaging with legislators and other stakeholders, including the PDC, to address their concerns, while ensuring we protect privacy, free speech, and political debate online."
I followed up with the Internet Association to point out that I was specifically asking about paid political advertisements on digital platforms—not just the regular, and definitely massive amounts of unpaid "posted content" that appear on Facebook and other online mediums.
I asked: "Are you saying that when it comes to paid political advertisements, it’s impossible for your members to know that the content on their platforms is, in fact, a paid political advertisement?"
I haven't yet received a response, but I'll update if one arrives.
Sen. Palumbo's bill is currently in the senate's rules committee.