Election regulators in Washington state filed administrative charges against Facebook on Friday, saying the tech giant has "repeatedly violated" a Washington state campaign finance law that requires transparency in local election ads.
Investigators with the state's Public Disclosure Commission brought the charges, accusing Facebook of "failing to maintain documents and books of account" that, under long-standing Washington law, must be "open for public inspection" and must provide clarity on the financing and reach of all ads that Facebook sells to influence local elections in this state.
The new regulatory move against the social media behemoth arises from a situation that appears to be unique nationally.
More than three years after Russians purchased thousands of Facebook ads as part of a plot to interfere in the 2016 US presidential election, political ads on digital platforms remain largely unregulated at the federal level. A few recent efforts have been made to regulate online political ads at the state level, but Washington state is alone in having a strong law, on the books for decades, that requires Facebook and other commercial advertisers to disclose detailed information about the money behind every local political ad they sell, as well as the manner in which those ads are targeted.
Local television stations, radio stations, and newspapers have long complied with this law's requirements, but Facebook has been defying Washington state's transparency regulations for years and has even challenged this state's right to police its own elections in this realm.
Result of Stranger Complaint
Friday's charges stem from a complaint The Stranger filed with the PDC in February, after Facebook failed to respond to a request for information on 25 local political ads the company had sold since January 1, 2019.
Facebook has since sold hundreds more ads, targeting local elections all over Washington state. To date, in 2019 alone, tens of thousands of dollars have reportedly been spent on these Facebook ads by more than two dozen local campaigns and political action committees.
The group of 25 Facebook ads cited in The Stranger's February complaint, as well as the hundreds of Facebook ads sold since, were distributed by the company despite a ban on Washington election ads announced by Facebook last year in the wake of a lawsuit brought by Washington State Attorney General Bob Ferguson, who said the company's ongoing political ad disclosure failures were "not legal" and had to stop.
("If they don’t [stop], they’re going to hear from us again," Ferguson said in December 2018, after his lawsuit was settled with a $238,500 payment from Facebook.)
After The Stranger demonstrated early this year that Facebook was still failing to disclose legally required data on its local political ads, and that Facebook's troubled online archive isn't meeting state transparency requirements, the PDC began looking into the issue. The agency opened a formal investigation into the matter in May.
Facebook has not yet responded to a request for comment on the PDC's decision to file charges. (See update below for a statement Facebook sent several hours after this story was posted.)
In July, election regulators in Seattle and the state capital of Olympia described Facebook's continued sales of local political ads—despite its supposed ban on such ads—as a "huge problem" that is creating "a lot of confusion."
"What is going on at Facebook headquarters?” asked Wayne Barnett, executive director of the Seattle Ethics and Elections Commission. "I mean, they’ve enunciated this as a policy, but it doesn’t appear that there are any resources being devoted to enforcing the policy."
Local campaigns and even a former Seattle mayor have also expressed dismay at a situation that allows some politicians access to Facebook advertising while Facebook claims to ban such ads and refuses to disclose required information about such ads when they're nevertheless sold.
“Any time you have a competitive process where some parties are essentially punished for following what they believe to be the rules, and others who are not following the rules who are benefitting, that’s a huge problem," Barnett said in July. “To me, it just shows the unworkability of Facebook’s policy. I don’t know what Facebook is doing."
In late July, after Facebook allegedly failed to provide Tallman Trask, a local digital communications strategist, with information about political ads targeting Seattle's city council elections, he filed his own complaint with the PDC. That complaint is in the "assessment of facts" stage, according to the agency.
Next Step: A Public Hearing or Another Settlement
Kim Bradford, spokesperson for the PDC, said the charges against Facebook can lead down one of two paths. Either the company now works out what would effectively be a settlement with state regulators, or it proceeds to a contested hearing before the PDC's commissioners.
Such a hearing, Bradford said, "can look much like a trial, with each side presenting evidence and questioning witnesses."
Under state rules, the PDC can fine those found to have violated campaign finance laws a maximum of $10,000 per violation—"unless parties stipulate otherwise" through an agreed settlement, Bradford said.
In this particular case, it's not clear how many distinct violations may be at issue.
The 25 Facebook ads cited in The Stranger's February complaint were sold to four different Seattle City Council campaigns and backers of one local ballot measure.
Each of the ads was displayed numerous times, and although Facebook is required to disclose information about such ads to "any person" who asks, and must do so "within twenty-four hours" of each ad's initial distribution, it has now been nearly eight months since The Stranger asked for "all the information that Facebook is legally required to disclose" about those 25 ads.
Five months after The Stranger's request, Facebook did provide some legally required information about the 25 ads to the PDC's investigators, the recently filed charging document notes. But that information was incomplete, investigators said.
For example, while Facebook revealed each ad's cost it "did not include who made the payment, when it was paid, and what method of payment was used," according to the charging document. It also failed to provide required information on the audiences targeted by each political ad.
In addition, Facebook to this day has not provided any information directly to The Stranger, even though state law says such information must be provided to those who ask, "without reference to, or permission from, the PDC."
Exactly how many individual violations of state law are contained within this nearly eight-month history of The Stranger requesting, but not being directly provided, legally required information on these 25 Facebook ads?
Bradford said that will be determined by the PDC's commissioners.
UPDATE, 3:07 pm: In an e-mailed statement, Facebook spokesperson Devon Kearns told The Stranger:
We are committed to protecting elections on Facebook and have built tools to give people more information about the ads they see, including via Facebook’s Ad Library and Ad Library Report. We are working cooperatively with the PDC in an effort to resolve this matter, and we look forward to continued productive discussions.