On September 19, I filed a formal complaint against Facebook with Washington state election regulators, pointing out that the company has, over several months, failed to provide me with local political ad data that Facebook must disclose under state law.
In response to my complaint, Facebook lawyer Ben Stafford argued last week to state regulators that Facebook has "broad immunity" from Washington law governing online political ads.
If true, this "immunity" would mean that Washington's groundbreaking election transparency regulations are toothless when it comes to trying to force digital platforms such as Facebook to truly open up their ad books.
Facbook's "immunity" claim also comes almost exactly two years after Russia showed how easy it was for political ad buyers to hide behind the platform's lack of transparency as they worked to tilt an American election. That hacking of democracy prompted calls—so far mostly unheeded at the national level—for stronger regulation of tech giants.
The Washington State Public Disclosure Commission, which enforces this state's election laws, has been a national leader in promoting the public's right to learn more about the financing and reach of online political ads, including digital "dark ads" that only target certain demographic groups.
Not surprisingly, the PDC takes a markedly different view than Facebook of its powers to regulate online electioneering.
Kim Bradford, a PDC spokesperson, said the commission believes it does, in fact, have the authority to require specific disclosures from companies that sell advertising aimed at influencing this state's elections—including tech companies such as Facebook.
"The PDC's position has been and continues to be that social media platforms such as Facebook are subject to the commercial advertiser disclosure requirements," Bradford said yesterday in a statement.
Federal law raised as defense
At issue, from Facebook's point of view, is a controversial federal law, Section 230 of the Communications Decency Act of 1996. Tech companies have long used this law as a shield against legal liability for dangerous and damagingly false content generated by their users.
There is a lot to say about Section 230, and a lot that's been said already. Journalist Paul Blumenthal recently called it "The One Law That's the Cause of Everything Good and Terrible About the Internet."
When non-techies are aware of Section 230 at all, they mostly understand it as a measure that prevents, say, Facebook and Twitter from being held responsible for posts that seem so awful they must be actionable. But it's worth noting that in this instance, Facebook isn't attempting to use Section 230 as a shield against outrage about free, user-generated content.
In this instance, Facebook is trying to use Section 230 as a shield against state-level regulation of paid political advertisements.
The company's position on this, put simply, is that Washington's attempt to mandate online political ad transparency is vetoed—or "preempted"—by federal law.
Clearly this is not a belief held by the PDC. Nor does it seem to be a belief held by Washington State Attorney General Bob Ferguson, who in June sued Facebook and Google for a decade's-worth of violations of this state's laws on election ad transparency.
In legal filings, Facebook is currently arguing with Ferguson's office over whether that lawsuit should proceed in front of a federal or state judge.
Google, for its part, has chosen to proceed in state court, where it recently filed paperwork arguing, among other things, that Ferguson's case should be thrown out because of the immunity Google is granted under Section 230 of the Communications Decency Act.
The Details of Facebook's Argument Against The Stranger's Complaint
My PDC complaint traces to a political ad disclosure request I e-mailed to Facebook back on May 29.
I was interested in learning more about the paid social media campaign opposing Seattle's failed "Amazon Tax." So I asked Facebook to send me all the information state law requires the company to disclose about "Amazon Tax" ads.
In response, Facebook pointed me to its archive of political ads, which, according to Facebook's lawyer, "provided more than sufficient information to the public and Mr. Sanders to comply with [Facebook's] obligations in this case."
In fact, Facebook's archive did not—and still does not—disclose particular information that state regulations say must be disclosed, including, importantly, the exact amount spent on ads opposing Seattle's "Amazon Tax."
This is valuable information for the public to have, as the case of the "Amazon Tax" opposition ads ended up demonstrating.
It turned out that something odd had occurred with the "Amazon Tax" opposition campaign's digital ad spend. A leader of that campaign now describes what happened as a scam, but whatever it might be called I was only able demonstrate this odd thing had occurred because of disclosures from a different tech giant, Twitter.
Facebook's disclosures via its online ad archive weren't helpful, because they only represent political ad spending as a range (not as an exact amount) and therefore did not allow me to notice the problem. After I wrote a story on the problem based on Twitter's disclosures, the campaign against the "Amazon Tax" revised its financial reports to the PDC and a campaign subvendor refunded money it had supposedly spent on Twitter and Facebook ads—money that, in fact, had not been spent at all.
Facebook's lawyer, in a recent letter to the PDC, claims that because I made my "Amazon Tax" ad data request to Facebook before Washington state's transparency law was clarified on June 7, my complaint about the company's insufficient response should be dismissed.
It's worth diving into the calendar details on this one.
Prior to June 7, Facebook argues, the transparency law "applied only to 'commercial advertisers,' which was defined to encompass only traditional print media."
In fact, back in December of 2017 the PDC stated that it believed Washington's political ad transparency law "would apply to Facebook, Google, and other forms of social media and online advertising."
On May 9—some 20 days before I made my request to Facebook—the PDC's commissioners unanimously approved an emergency rule affirming this belief.
That emergency rule took effect on June 7. A little over a month later, on July 12, I reiterated my request to Facebook but received no response. Then, on July 25, the PDC sent a letter to Facebook saying it was aware of the situation and urging the company to respond. In that letter, the commission also reminded Facebook that under state rules, political ad information (including the "total cost" of each ad) must be shared with the public "promptly upon request."
On August 1, Wayne Barnett, the director of Seattle's Ethics and Elections Commission, sent Facebook his own letter. He reminded Facebook that political ad information must be "provided in the first place to the public." He also made his own request for "Amazon Tax" ad details.
Facebook soon sent Barnett detailed information on "Amazon Tax" ads, including exact ad spend data that's not available in Facebook's public-facing political ad archive.
Facebook never sent me this information. Instead, I had to use a public records request to get the information from Barnett.
Still, Facebook maintains, through its lawyer, that it provided me with "all required information about the advertisements in question" and that it did so "promptly," as state law requires.
At some point, the PDC will weigh in on whether it buys this argument from Facebook.
But according to Facebook's other argument about its immunity from Washington state law, even if the PDC does find that Facebook failed to "promptly" send me required information, the company would view that finding as having no legal force.
Section 230 of the Federal Communications Decency Act "preempts state law," Facebook's lawyer told the PDC, and therefore my complaint, which seeks to apply state law to Facebook, has, in Facebook's opinion, "no proper legal foundation."