Facebook doesn't have to follow Washington State's law governing election ads, and if a complaint is filed with state regulators over Facebook's lack of compliance, no consequences should follow.
That's the view Facebook expressed on Tuesday in a letter to the Washington State Public Disclosure Commission. In the letter, the tech giant explained why it believes nothing should be done about its failure to provide The Stranger with legally required information regarding political ads Facebook sold this year targeting four different Seattle City Council races and a Seattle ballot measure.
Those political ads, which numbered more than two dozen, were sold by Facebook despite the company's stated ban on local political ads in Washington State.
A Brief History: Lawsuit Leads to Ban, Flawed Ban Leads to Complaint
Facebook's ban was launched at the close of 2018, shortly after it and Google paid a collective $455,000 to settle lawsuits brought by Washington State Attorney General Bob Ferguson, who'd accused both companies of failing to comply with election ad disclosure laws over many years. The Facebook ban was also timed to take effect just days before strengthened disclosure rules were implemented in Washington State on January 1, 2019.
After I reported in February that Facebook was continuing to sell local election ads in Washington, I asked the company to provide me with legally required information regarding the ads I'd found—including exactly how much was paid for each ad and how each ad was targeted. When Facebook ignored that request, I filed a complaint with the Public Disclosure Commission.
It was Facebook's response to that complaint that arrived on Tuesday, in the form of a letter written by an attorney with the Washington, DC office of the powerhouse law firm Kirkland & Ellis—the same firm that employed William Barr before President Trump picked him to be his new Attorney General.
Why is Facebook arguing, through its DC attorney, that it doesn't have to follow Washington State law and if there's a complaint about that, it should be dismissed?
For three reasons—all of them worth exploring as the PDC considers its response.
Facebook Argument 1: It's Not a "Commercial Advertiser"
As I reported in February, Facebook has sold numerous ads targeting multiple Seattle elections since declaring its ban on such ads.
In addition, even after my February story, and well after my February 21 complaint to the PDC, Facebook continued to sell political ads targeting local Washington State elections.
Here's a local political ad from March 1, from Kate Martin, a Seattle City Council candidate whose earlier ads I'd flagged in my February report:
And here's one from March 12, just two days ago, bought by Seattle City Council candidate Ann Davison Sattler.
It's one of 11 ads that Facebook's own political ad archive shows Sattler has purchased since late February, and it was still labeled as "active," along with several other Sattler ads, as of this morning:
Yet in its letter, Facebook argues to the PDC that it "does not accept state and local political ads in Washington," and therefore cannot be considered a "commercial advertiser" as defined by state code. Therefore, the argument continues, Facebook isn't covered by a longstanding, voter-approved state law that requires significant disclosures by commercial advertisers that sell political ads targeting this state's elections.
It's this longstanding measure, and a nearly identical one adopted by the City of Seattle, that supports my right—and, more importantly, the right of "any person"—to receive detailed information on the financing and reach of local political ads that companies such as Facebook sell.
These landmark Washington State laws were themselves modeled on longstanding federal law that requires television and radio stations, for example, to disclose details about political ads they sell targeting federal elections.
As we learned from Russian interference in the 2016 presidential election, there's a significant hole in federal law. It did not—and, amazingly, still does not—require disclosures about presidential and congressional election ads sold by Facebook and other digital platforms.
But Washington State's law was written broadly enough from the outset that it does apply to digital platforms that sell ads influencing this state's elections.
So how is it that Facebook has come to believe it's not a commercial advertiser under Washington State's definition when the company is still, as of this month, selling political advertisements to local candidates in Washington State?
Well, what Facebook argues in its letter to the PDC is this:
"Any Washington Political Ad that appears on Facebook is in violation of Facebook's policy."
In other words: If Facebook has a policy banning local political ads in Washington, and Facebook nevertheless continues to sell local political ads in Washington, then those political ads are not covered by Washington's disclosure laws, because Facebook has a policy banning them.
Or, to put it yet another way: Rules written by Facebook to govern behavior in Facebookland don't have to be perfectly enforced, but they definitely trump Washington State's laws governing its own elections.
Facebook Argument 2: Federal Law Says Tech Giants Can't Be Held Accountable
Facebook has argued this before. Last year, as Ferguson's lawsuit was moving forward, Facebook told the PDC that it believes it has "broad immunity" from Washington State's election ad transparency laws, thanks to a controversial provision in the federal code: Section 230 of the Communications Decency Act of 1996.
This short provision is credited with creating the modern internet economy. How?
By giving legal immunity to online platforms for what Facebook calls, in its letter to the PDC, "third-party content."
In the beginning, this immunity was offered by the federal government so that a young AOL, for example, wouldn't be bankrupted by libel lawsuits because a bunch of random people said various libelous things in a few of AOL's countless online chatrooms.
Under Section 230, neither AOL nor any platform like it could henceforth be treated as if it were the "publisher or speaker" of things that third parties said through their services.
Fast forward to today: anything-goes comment threads, alarming 4chan posts, and, of course, Facebook, which has Section 230 immunity to thank for the fact that it's not legally responsible for what its billions of users post in their status updates all day long.
But setting all that aside, was Section 230 immunity ever really intended to prevent states like Washington from regulating paid online political advertisements that aim to influence their local elections?
And, assuming Congress never intended Section 230 to be used this way, is one unintended consequence of Section 230 that Facebook is now fully within its rights to say it's above Washington State law when it comes to the regulation of online political ads, and can only be held accountable by its own self-regulation?
Does this also mean that no state in America can force Facebook to be accountable for all the local election ads it sells?
By settling last year's lawsuits with cash payments but no admissions of guilt, Ferguson, Facebook, and Google all avoided finding out the answers to these questions.
They also avoided finding out whether a second federal law that Facebook raises as a shield in this week's letter to the PDC, the Stored Communications Act, really prohibits the disclosure of details concerning the money and individuals behind political ads.
A lot remains at stake here.
Including, of course, whether any state will ever truly be able to hold tech giants to account for the online political ads they sell.
Facebook Argument 3: We're Trying Hard and Support Transparency, So Give Us a Break
"Facebook has made a good-faith effort to comply with Washington law," its letter to the PDC claims.
It has banned political ads targeting this state's elections. It has "adopted screening processes" to keep such ads from being "improperly submitted," and it will continue to "enhance its screening processes."
The company, according to its letter, "remains broadly committed to transparency in political advertising on its platform, and it is thus aligned with the PDC's 'Mission' and 'Vision.'"
Yet, as mentioned above, Facebook's sales of political ads in Washington State continue—and its letter makes no promises they will ever stop entirely.
Facebook is not alone in this, by the way.
Google, which banned local political ads in Washington State back in June 2018, makes similar statements and yet just sold thousands of dollars worth of ads aimed at a small February 12 special election in Spokane.
That failure and others have raised a question:
If these tech giants can't actually ban political ads intended to influence local elections in Washington State, what happens if someday a bunch of supposedly banned Facebook or Google ads end up tilting a close race for city council, or school board, or mayor, or state legislature, or state supreme court?
As with Facebook, I asked Google for all the information it is legally required to disclose about the ads it sold to influence Spokane's February 12 special election. Yesterday, the company sent me a response similar to Facebook's:
In June 2018, we updated our advertising policies to prohibit state and local election ads in Washington and deployed technical measures to enforce our new policy. If we learn that ads have been posted in violation of our policies and in circumvention of our technical measures, we promptly remove them. Because we are not accepting these ads, and actively reject them, we are not subject to the requirements of the Washington law cited in your request.
So again the argument is: If we have a policy banning local political ads in Washington State, and we nevertheless continue to sell local political ads in Washington State, then those political ads are not covered by Washington State's disclosure laws, because we have a policy.
I've filed a complaint about Google's failure to disclose local political ad information, too.
In both cases, the PDC will determine next steps.
Those steps could include referring both matters to Ferguson, who said, after last year's settlements with Facebook and Google, that he pays special attention to repeat offenders.
“If Facebook is accepting political ads tomorrow," Ferguson said on December 18, "then you or any member of the public should be able to walk into their office and get the information that any entity must provide if they’re accepting political advertising [aimed at Washington's elections].”
If state law isn't being followed by Facebook and Google, Ferguson added, "they’re going to hear from us again.”