In a pair of lawsuits that cite The Stranger's reporting, Washington State attorney general Bob Ferguson today charged two of America's largest tech companies, Facebook and Google, with violating long-standing state campaign-finance laws that mandate transparency in political ads.
"Google and Facebook are not following the law," Ferguson told me in an interview before the lawsuits were filed. "You experienced that directly.”
The experience Ferguson was referring to began more than six months ago, when I walked into the Seattle offices of Facebook and Google and politely delivered letters asking both companies to disclose details on political ads they've sold to influence elections in Washington State.
The right of any individual to obtain this information traces to unique Seattle and Washington State laws that require significant disclosure by companies that sell political advertising aimed at local elections.
To comply with these laws, companies such as Facebook and Google must reveal, upon request, the "exact nature and extent" of the political advertising services they've provided, as well as specific information on each political ad's cost and purchaser.
But as Ferugson says in filings today in King County Superior Court, "at no point" over the last six months has Facebook or Google provided The Stranger with the data I've requested on local political ads. (The lawsuit against Facebook is here. The lawsuit against Google is here.)
"We can’t have a world here in Washington State where we’re transparent on radio buys, we’re transparent on TV buys, but we’re not transparent when it comes to ads on Facebook and Google," Ferguson said. "That’s not okay.”
He's asking for penalties against the companies to be determined at trial. State law provides for fines of up to $10,000 per violation of campaign finance rules, and if each undisclosed online political ad counts as a violation, then Facebook and Google could quickly end up owing the state of Washington millions of dollars. (Ferguson's office says the companies' failure to comply with state laws stretches back five years, to 2013. Last year alone, in just the City of Seattle's municipal elections, nearly 650 political ad expenditures were made on Facebook.)
In addition, Ferguson is asking that Facebook and Google be charged all costs for the state's investigation into their political ad practices, as well as all trial costs.
Along with The Stranger's experience, the attorney general's lawsuits cite the experience of Conner Edwards, a 25-year-old aspiring law student and self-described public-records hound. In April, Edwards, who had been following my reporting on this issue, made similar requests at the Seattle offices of Facebook and Google.
Edwards, too, was not allowed to review local political ad data—even though state law says it should be "open for public inspection."
In response, Edwards filed complaints against Facebook and Google with the Washington State Public Disclosure Commission. (His complaint against Facebook can be viewed here; his complaint against Google can be viewed here. Each complaint cites more than 20 Stranger articles on this issue.)
I had never heard of Edwards until he told me about his efforts, but I've since learned he's a unique character.
After attending the hyper-liberal Evergreen State College, Edwards went to work for combustible Republican state senator Pam Roach. "If you want to have a fun time," he told me in April, "Google ‘Pam Roach and Conner Edwards and FBI.'" Of course I did, and soon learned how Edwards once became a whistle-blower against Roach in a scandal set partly at Applebee's.
"Public disclosure, man. Campaign finance. I love this stuff!" Edwards said. "It’s boring to most people, but that’s why I have to make a stand.”
This was not the first time Edwards had filed complaints with the PDC, and in this instance he made use of a relatively arcane state procedure that allowed him to file a "citizen action notice" with the Washington State Attorney General's Office.
Edwards, who in his complaints expressed distrust of both the Public Disclosure Commission and the attorney general's office, used this arcane procedure to give notice that he preferred to take Facebook and Google to court himself.
After this notice was delivered, Ferguson's office effectively had 55 days to decide whether to take up the case or leave it to Edwards to run a court battle against the tech giants.
By filing today's lawsuits, Ferguson is making clear that he thinks this is a job for the attorney general's office.
“The rules, in our view, are pretty clear," Ferguson said. "What’s happening now is not legal. They’re not following the law... You’ve experienced that. Conner experienced that. That’s not how the system is supposed to work. And it’s my job now to help get them into compliance.”
The "system" that Ferguson is heading to court to enforce traces back to an era with many similarities to the present.
In particular, it traces to the year 1972. Then, as now, the country was polarized. The news was full of fallout from an intrusion at the Democratic National Committee headquarters in Washington, DC. Agents from the FBI were investigating a money trail that might, eventually, lead back to the sitting Republican president. Trust in government was at an alarming low.
Amid this backdrop of political corruption and public dismay, Jolene "Un-sold" Unsoeld, a driven reformer and political trailblazer, helped lead the push for the landmark Washington State Initiative 276.
At the time, little to nothing was being disclosed about the money behind political power in this state. The Unsoeld-backed measure aimed to restore some faith in government by bringing daylight to the financing of campaigns and political advertising. Bold letters in the statement for the initiative in the 1972 voters pamphlet read: "The people have a right to know."
Initiative 276 passed with more than 72 percent of the vote, and it included a section called the "Commercial Advertisers' Duty to Report." Five years later, in 1977, the City of Seattle adopted a nearly identical "Commercial Advertisers' Duty to Report."
Because of the broad language used to define "commercial advertiser" and "political advertising" in this state, these decades-old duties to report, drafted long before Mark Zuckerberg was even born, can now be applied not just to television, radio, and billboards, but also to digital platforms like Facebook and Google.
The reason Washington State has these requirements, Ferguson explained, is “so people can know: ‘Hey, who is paying for those ads?’"
Today's lawsuits, he said, represent "an especially important case, in part because of the increased use of Facebook and Google for political communications."
In Seattle, for example, purchases of political ads on Facebook increased by 5,000 percent between 2013, the city's last mayoral election year, and 2017, the mayoral election year for which I've asked Facebook to give me data.
In his court filings, Ferguson notes that at the state level, campaigns have collectively spent $4.6 million purchasing political ads on Facebook and Google since 2008.
The filings from the attorney general also indicate that when state investigators asked Facebook and Google for data on those ad purchases, both companies failed to provide the state with legally required information. (The Stranger, too, was contacted by an investigator with the attorney general's office. At the investigator's request, we provided the attorney general's office with information on The Stranger's attempts to get political ad data from the tech giants.)
The repeated failures by Facebook and Google to produce legally required political ad data—to me, to Edwards, and to the attorney general's investigators—constitutes "negligent and/or intentional" behavior by the companies, Ferguson charges in today's court filings.
Despite the failure of Facebook and Google to respond to my requests for political ad data over the last six months, I've been able to use a cumbersome work-around to get my hands on a lot of interesting ad information.
For reasons that have never been explained to me, both Facebook and Google, while declining to respond to my requests, have been willing to turn over some data on Seattle political ads to Wayne Barnett, the director of the city's Ethics and Elections Commission.
Back in December of 2017, after seeing that I'd tried and failed to get the data myself, Barnett requested the same data, citing city law. Thus began a still-ongoing process in which Facebook and Google have slowly, under threat of charges and fines, sent Barnett more and more information on the political ads they sold to influence Seattle's 2017 municipal elections.
As that process has unfolded, I've used numerous public-records requests to get copies of everything Facebook and Google have sent Barnett. But, as Ferguson said: "That's not how the system is supposed to work."
Under Washington State and Seattle laws, I have just as much right to be given this data as Barnett does. Everyone, in fact, has a right to see this data.
Still, I've learned some interesting things from my public-records requests to Barnett. Among them:
• More than six months after Election Day, Seattle mayor Jenny Durkan and Google have a substantial disagreement over how much her campaign spent in 2017 on Google ads.
• After three rounds of disclosures to the City of Seattle, Facebook has delivered only one ad purchased by the Facebook-savvy campaign of failed mayoral candidate Nikkita Oliver. The Oliver campaign says it definitely ran more than one Facebook ad, and its filings with the Seattle Ethics and Elections Commission indicate it spent 20 times what Facebook is presently disclosing to Barnett.
• When it comes to ad targeting information, Facebook is still failing to deliver data on each political ad's "intended and actual audiences," as Barnett has said it should. (The company's newly launched "archive of ads with political content," while an important step toward greater transparency going forward, does not resolve this problem—nor does it appear to satisfy multiple other requirements of Seattle and Washington State disclosure laws. To take just one example, Facebook's new archive is not "open for public inspection," as the laws require. Rather, it's only available to Facebook members. I've asked Facebook multiple times whether it believes its new archive satisfies the requirements of Seattle and Washington State laws. I've received statements about other related issues, but no answer to that question.)
• Even so, it has become apparent that a failed candidate for Seattle city attorney used narrowly targeted Facebook ads to promote a misleading claim about property crime during Seattle's 2017 municipal elections. (How did this narrow targeting become apparent? I got the candidate himself to admit it.) How many other campaigns have used narrow targeting to influence Seattle voters? We don't know, because Facebook isn't saying.
"I don't file lawsuits unless I think we're gonna win," Ferguson told me over the phone before today's lawsuits were publicly announced.
I asked him if he had Russia's online interference in the 2016 US presidential election in mind as he was readying these cases.
"Of course," Ferguson responded. "I've followed that pretty closely, as you might imagine. That said, we have a specific case against Google and Facebook. But I think the backdrop that you mentioned—it illustrates why transparency in elections is so important. It illustrates the importance of a case like this. It may seem sort of like, 'Hey, well, is it that big a deal, you know, you walk into Facebook and they don't have that information right there?' Yes, it's a big deal. Yes, it is. We have transparency in our elections. That's important."
I also asked Ferguson whether taking on Facebook (market capitalization: $560 billion) and Google (market capitalization: $790 billion) gave him pause. He replied instantly: "No."
As attorney general he's already filed two dozen lawsuits against the Trump administration over its policies, joined an effort to take on major oil companies over climate change, and sued Purdue Pharma over its role in the opioid epidemic.
But in response to my question about taking on Facebook and Google, Ferguson pointed to his office's 2016 court victory against the Grocery Manufacturers Association, which resulted in an $18 million penalty against the association for campaign-finance violations. "It’s the biggest campaign-finance penalty ever issued anywhere—federal, state, local, any level," Ferguson said. "So we’ve got a pretty good track record.”
What would Facebook and Google need to do to make things right with Washington State?
"I'm obviously open to a resolution short of a trial," Ferguson said. "But that resolution can only occur if Facebook and Google are prepared to come into compliance with our law.
“We need a resolution that makes it easy for any member of the public to get the required information in essentially the same way they get it from everybody else," Ferguson continued. "Now, look, we want to be reasonable on that. But what’s happening now is not legal. They are not following the law. They’re not even close."
I've asked both Facebook and Google for their response to Ferguson's lawsuits. I'll update this post when I hear from them.
UPDATE: In an e-mailed statement, Facebook director of product management Rob Leathern said:
The tools we are introducing set a new standard for transparency in digital advertising. We are eager to hear people’s feedback as they use these features and will continue to explore how to build upon them to ensure people know who is behind the political ads they see on Facebook. Attorney General Ferguson has raised important questions and we look forward to resolving this matter with his office quickly.
Later, a spokesperson for Google said via e-mail:
We are committed to transparency and disclosure in political advertising. We are currently reviewing the complaint and will be engaging with the Attorney General's office.