After nearly a year of investigation and negotiation, Facebook and staff at the Washington State Public Disclosure Commission are embracing a proposed settlement that would allow the $600 billion company to pay a $75,000 fine and walk away from charges it repeatedly broke state campaign finance law.
The deal, which has not yet been approved by the PDC's five governor-appointed commissioners, would also allow Facebook to avoid any admission of guilt for failing to make required disclosures about hundreds of ads it sold to influence Seattle's 2019 city council elections.
In addition, the proposed agreement would allow Facebook to refrain from making any binding promises to follow Washington state's nation-leading political ad transparency laws going forward.
After reviewing the settlement document, formally called a stipulation, a half-dozen experts in campaign finance and digital ad transparency told The Stranger they were surprised by its language. They called the potential deal "troubling," described the fine amount as "incredibly small," and expressed concern about the message such an agreement would send.
Four of those experts are people the PDC itself invited to speak at a January forum on digital ad regulation in Olympia.
"This sets a dangerous precedent," said Denise Roth Barber, managing director of the National Institute on Money in State Politics, one of the experts who spoke at the Olympia forum. "I am surprised the PDC is considering this."
Ann Ravel, a former chair of the Federal Election Commission, echoed that surprise, saying it appears Washington regulators are preparing to "cave in" to Facebook.
"This is a slap on the wrist and insufficient," Ravel said, especially given what she described as Facebook's "willful failure" to follow state disclosure requirements.
Not going to serve as a deterrent
A number of the experts said their surprise at the proposed settlement traces, in part, to the reputation the PDC has developed over the past several years as a national leader in pushing for transparency in the murky world of online political ads.
But the language in the current deal, Roth Barber said, "certainly isn’t going to serve as a deterrent in the future. It also, importantly, sends a signal to other digital advertisers that if you don’t comply with the law—especially in a timely and complete manner—then you’re likely to face a pretty light fine which you can consider as part of your cost of doing business.”
According to a Stranger analysis of PDC records, Facebook took in nearly $115,000 from political ads bought to influence Seattle's city council elections in 2019—the first year in which Facebook had supposedly banned all political ads aimed at Washington state's elections.
Over that same period, Facebook took in a total of more than $245,000 from political ads targeting local elections all around Washington state, in places that included Spokane, Port Orchard, and Lynden, as well as Seattle.
Austin Graham, an attorney with the Campaign Legal Center, pointed to the PDC's proposed $75,000 penalty and noted that the amount of money Facebook took in from just the political ads targeted at Seattle last year was "way more than what this stipulation is proposing for a fine."
Graham continued: "That just shows you that Facebook is still walking away from all of this, it looks like, with a net gain for what they did."
Appropriate or inappropriate?
It's still not certain Facebook will get to sign on this deal's dotted line.
At a PDC hearing on January 23, the social media giant's lawyer, Winn Allen, praised the settlement as "a fair and appropriate resolution" of charges the PDC filed against Facebook in October. Those charges allege the company "repeatedly violated" state campaign finance law during the 2019 election cycle by failing to make required ad disclosures when asked.
Allen, a former clerk for Supreme Court Justice Samuel Alito, and now a partner at the powerful law firm that employed William Barr before he became President Trump's attorney general, flew out from DC for the hearing.
He told the PDC's commissioners that Facebook "urges" them to accept this deal.
The PDC's Executive Director, Peter Lavallee, lauded Facebook's willingness to engage in "extensive dialogue" with the commission's investigators over many months and also encouraged the settlement's approval, calling $75,000 an "appropriate penalty."
The deal might have been approved that day, but for the fact that PDC commissioners noticed something.
Lavallee and his staff had rushed things, making their presentation without giving the legally required 10-day notice to all parties involved.
Because of that, the commissioners chose to take more time with the matter. They will be considering the proposed Facebook settlement again at their February 27 meeting.
Ultimately, the commissioners have the power to approve, reject, or request changes to this deal.
They can also choose to hand the whole matter over to Washington State Attorney General Bob Ferguson for potential prosecution and higher penalties than the PDC may be willing, or able, to impose.
Lavallee formerly worked as a communications director in the state attorney general's office and, before that, as a New York investment banker and general counsel to an east coast technology company. In explaining his decision to endorse the proposed settlement, he stated that he'd looked into Facebook's high-profile history with Washington state regulators.
In Lavallee's eyes, the fact that Attorney General Ferguson sued Facebook in 2018 over nearly identical allegations was an "aggravating" factor, meaning it weighed against an easy settlement.
That 2018 lawsuit by Ferguson, just like the current PDC enforcement action against Facebook, traces to two requests for information on Facebook's Washington state political ad sales that were made, separately, by The Stranger and a private citizen.
In the Ferguson suit, the private citizen involved was activist Conner Edwards. In the case currently before the PDC, the private citizen involved is University of Washington law student Tallman Trask.
In both cases, Facebook refused to provide legally required ad data to either The Stranger, which made the requests to test compliance and promote election transparency, or the private citizens, who have described similar motivations.
As a result, both The Stranger and the private citizens, acting independently, filed complaints with the PDC, the front-line agency for enforcing this state's campaign finance rules.
Facebook's refusal to provide the local election ad data, according to both Ferguson and the PDC, violates longstanding Washington law.
That law says political ad-sellers such as Facebook must disclose, to "any person" who asks, significant information on the financing and reach of every election ad sold to influence this state's local races and ballot measures.
Under the law, such information must be provided "promptly upon request."
Back in December 2018, Facebook agreed to settle Ferguson's lawsuit by paying Washington state a civil penalty of $200,000.
Soon after that, the company issued its ban on Washington state political ads.
Beyond the specifics of that suit, Lavallee explained that a further "aggravating factor" in the current case is Facebook's ongoing refusal, to this day, to provide required data to either Trask or The Stranger in response to requests made in 2019.
Over the course of the PDC's lengthy investigation, Facebook has instead turned over to state investigators much of the data it should have provided to The Stranger, Trask, or "any person" who asked. The reason for this is not explained in the proposed stipulation.
But the PDC has taken it upon itself to pass along Facebook's incomplete and very late information on certain Washington state political ads to Trask and The Stranger (which is not how the law says such disclosures are supposed to happen).
An additional "aggravating factor," Lavallee told the commissioners, is that Facebook is a company of great "sophistication" and extremely deep pockets.
“This is not an organization that should lack the resources available to it to ensure compliance with the law," he said at the January 23 meeting.
So why does Lavallee think it's appropriate to let Facebook pay a $75,000 fine, escape admitting any law violations, and avoid any written promises to follow state law in the future?
Lavallee repeatedly emphasized to commissioners that Facebook has been very nice to the PDC's staff during the nearly year-long investigation and negotiations.
There have been phone calls, in-person meetings with Facebook's DC lawyer, and detailed conversations between Facebook and the PDC that helped staff "better understand" the company's political ad practices, Lavallee said.
At the January 23 hearing, he spoke as well of "Facebook’s professionalism and cooperation in working to amicably reach this resolution."
If it was all so professional and amicable, asked PDC Commissioner Russ Lehman, then why has it taken nearly a year to get to a proposed settlement?
Lavallee, in response, avoided divulging details of private negotiations but conceded: "There were certainly disagreements along the way, and points of contention that we had to work our way through.”
The other "mitigating factor" weighing in Facebook's favor, Lavallee said, is that the company has an online ad archive and something it calls an "ad library report," both of which are available to the general public. In the words of the proposed settlement, these offerings are "providing real-time information about political advertising in Washington state."
Facebook is indeed ahead of other tech companies in providing some political ad transparency through online archives.
But Lavallee did not emphasize to commissioners that the PDC's own investigative documents include a detailed chart showing how Facebook's online ad archives actually fail to meet most of the requirements of Washington state law.
The investigators' chart lists 21 specific types of political ad disclosures that must be made by companies such as Facebook under Washington state law, from the name of the ad's true purchaser to the ad's total cost, details on the audiences targeted by the ad, and the total number of impressions the ad received.
In only two of the 21 categories was Facebook found to be in full compliance.
So why $75,000?
At the January 23 hearing, PDC Commissioner Fred Jarrett, a former deputy King County Executive, wanted to know how, exactly, Lavallee and his staff settled on the $75,000 fine.
Jarrett asked: How many violations are involved here? And how much is being charged to Facebook per violation?
Lavallee replied that in theory, one could potentially find a lot of violations in this or any other case that rises to the level of the PDC filing charges.
“You could say that each day that something goes unreported might be a violation," Lavallee said.
In this particular situation, Facebook has failed for nearly a year to directly provide The Stranger with political ad information that was formally requested from the company on February 12, 2019.
That failure is ongoing and not specifically remedied by the terms of this proposed settlement.
Under state law, fines issued by the PDC can reach a maximum of $10,000 per violation. So in theory, if "each day" could be seen as a violation, as Lavallee suggested, then Facebook's nearly 365 days of failure to "promptly" respond to The Stranger (never mind its lengthy failure to respond to Trask), could lead to the company facing a fine of more than $3.5 million.
On top of that, additional fines could theoretically be levied, also on a per-day basis, for Facebook's failure to disclose appropriate data through its online archive in all but two of 21 legally required categories.
If each category failure received the maximum $10,000-per-day fine, Facebook's total fine could very quickly climb into the tens of millions, and perhaps top $100 million.
Lavallee explained, though, that he and his staff only decided to fine Facebook for two violations.
One violation is Facebook's refusal to respond to The Stranger's request, and the other violation is Facebook's refusal to respond to Trask's request.
"We tried to look at this holistically, and what seemed to be an appropriate penalty for the overall conduct, taking into account the mitigating and aggravating factors," Lavallee said.
Dividing $75,000 by two, this means Facebook would effectively be paying $37,500 for each violation. (Fines above the PDC's $10,000-per-violation maximum are allowed to occur if they're agreed to through a stipulation.)
Just over a year ago, though, when facing the lawsuit from Attorney General Ferguson over nearly identical issues, Facebook paid a much higher civil penalty: $200,000.
By Lavallee's holistic logic, that lawsuit also involved just two violations, meaning Facebook paid the State of Washington $100,000 per violation in December 2018.
Now, in 2020, for essentially the same behavior, the proposed penalty is marked down to $37,500 per violation.
"Part of an election campaign"
Lavallee appeared to address this discrepancy during the January 23 hearing.
"While there was a previous penalty paid by the company to the attorney general’s office," he said, "that covered conduct over 10 years and some $3.8 million [in political ad purchases]." The current case, Lavallee said, involves "conduct that’s alleged to have been out of compliance in the course of part of an election campaign to the tune of some $66,000 or so."
That's one way to frame the situation. There are certainly others.
After the 2018 settlement was reached, Attorney General Bob Ferguson said he expected Facebook to immediately begin complying with Washington state law.
"If they don't," Ferguson said, "they're going to hear from us again.” Ferguson also noted he was personally engaged in the 2018 lawsuit, and that he pays special attention when his staff brings him cases that involve repeat offenders.
According to the PDC's own October 2019 charges against Facebook, the company, within less than two months of Ferguson's declaration, went right back to violating Washington state disclosure law.
So Lavallee could easily have chosen to cast the current case as part of a continued pattern of conduct by Facebook that has now extended beyond the 10 years Ferguson identified.
The path Lavallee chose instead—contending that Facebook is merely "alleged to have been out of compliance in the course of part of an election campaign to the tune of some $66,000 or so"—appears to momentarily treat Ferguson's 2018 lawsuit as an entirely separate matter (even though that case, too, arose from complaints filed with the PDC).
It also fails to capture the full context of what happened during the 2019 election season in Washington state.
Lavallee's "$66,000 or so" figure, a PDC spokesperson said after the hearing, is referring only to the total cost of the specific Facebook ads that The Stranger and Trask requested information about.
Both of those requests were made early in the 2019 campaign season, in response to the growing realization that Facebook was still selling political ads despite supposedly banning them after Ferguson's lawsuit was settled. The Stranger's request was made in February 2019. Trask's request was made in July 2019.
Those requests didn't cover every Facebook ad that had been sold in 2019 up to the point they were filed, just certain groups of ads The Stranger and Trask had noticed. And Facebook continued selling still more local political ads in Washington state all the way through the November 2019 elections—well after both disclosure requests were made, and long after the ensuing complaints about a lack of response from Facebook were filed with the PDC.
Those ongoing Facebook political ad sales ended up totaling more than $245,000 for 2019, and they were made to 60 different campaigns and political action committees statewide. (Not just to "several" campaigns and PACs, as the recitation of agreed "facts" in the proposed stipulation says.)
Collectively, those campaigns and PACs filed 241 different reports of Facebook ad purchases with the PDC, and many of those individual purchase reports involved campaigns or PACs buying significant numbers of Facebook ads (rather than, say, just one ad). This means hundreds and likely thousands of different Facebook ads targeted Washington's 2019 elections.
That's the bigger picture Lavallee didn't mention, and it covers the entire 2019 election season, not just "part of an election campaign."
Lavallee also didn't talk about about the massive number of impressions generated by Facebook's 2019 election ads—meaning, the total number of times those ads were displayed on the screens of targeted Facebook users in specific demographic groups and geographic areas around Washington state.
Relative to the amount of money sloshing around in American politics, Lavallee's "$66,000 or so" tally for Facebook election ads purchased in 2019—or even the big-picture total of $245,000 spent statewide on Facebook ads that year—may not sound like a lot.
But as the PDC found out during its own investigation into a set of Google ads targeting a February 2019 special election in Spokane, relatively small amounts of money can buy huge numbers of online ad impressions.
Those huge numbers of ad impressions, in turn, can vastly dwarf the size of a city, town, or even statewide electorate.
For example, in the Spokane race proponents of a local property tax measure to fund police and fire services bought $4,665 in Google ads.
Google, too, supposedly bans local elections ads in Washington state, but it sold these anyway and the pro-property-tax Google ads ended up being shown in Spokane "approximately 6,200,000 times," according to data Google later revealed to Washington state investigators.
That number is closer to the entire population of Washington state than it is to the population of Spokane, which only has about 220,000 residents.
In this particular February election, fewer than 40,000 Spokane voters cast ballots regarding the property tax initiative. It passed easily.
So how many total impressions were generated by the $245,000 spent in 2019 on Facebook ads targeted at local elections around this state?
We can't know for sure because Facebook's ad archive doesn't divulge precise impression counts to the public—one of the many ways, according to PDC investigators, that Facebook's archive fails to deliver information that's legally required to be disclosed in Washington state.
But it's safe to say that millions of local political ad impressions were delivered for that $245,000. In general, the races targeted do not have millions of people voting in them.
The case of the Moms
Another way to see the massive number of Facebook ad impressions that can flow from such purchases is to look at internal Facebook business records that were eventually disclosed to PDC investigators in this case, and then passed on to The Stranger and Trask by the agency.
Those business records do provide total impression data for the specific ads covered by those two specific requests.
Because of the way the data was delivered, though, it's not easy to tally up a grand total for impressions.
One would have to spend an unappealing number of hours paging through the more than 600 separate Facebook ad business records that were provided, squinting for the word "impressions," and entering the accompanying number into one's own Excel spreadsheet.
But consider just one little subset of this data.
The Stranger asked, in mid-February 2019, for all the data Facebook was legally required to disclose on certain ads Seattle City Council Candidate Ari Hoffman had run since the beginning of that year.
For a period of time covering a month and a half in early 2019, Facebook found more than 40 different Facebook ads connected to Hoffman's campaign.
Those ads cost Hoffman $1,437. They were targeted at south Seattle's District 2, which Hoffman wanted to represent, and they delivered him more than 120,000 impressions.
There are only 59,389 registered voters in Seattle City Council District 2, according to King County Elections.
Only 22,127 of those registered voters ended up casting ballots in the August primary.
Hoffman, who excelled at creating controversies for himself, lost that primary election.
But another Seattle City Council race that shows up in the Facebook business records is perhaps a little more interesting on the question of impact.
Up in north Seattle's District 4, moderate Alex Pedersen was running against Democratic Socialist Shaun Scott. On principle, Scott swore off Facebook ads. He also didn't receive any meaningful help from outside political action committees.
Pedersen, however, benefitted from Facebook ads bought on his behalf by a political action committee called "Moms for Seattle." Here's one of them:
During the primary, according to Facebook business records, "Moms for Seattle" spent $786 on pro-Pedersen Facebook ads that targeted District 4 voters. Those ads ended up receiving more than 30,000 impressions.
Only 26,744 people actually voted in Seattle's District 4 primary.
Pedersen came in first in the primary, some 4,400 votes ahead of Scott. (Which, given the small electorate, translated into Pedersen coming in some 17 points ahead of Scott.)
That big win cemented a sense that Pedersen was a major frontrunner and the likely victor in the November general election, which Pedersen ended up winning by only 1,386 votes, or four percentage points.
"Moms for Seattle" ran ads in other Seattle City Council primary races, too.
In all, the Moms' primary election ads received a total of more than 320,000 impressions.
Fewer than 200,000 total votes were cast in Seattle's city council primary, which saw many of the Moms' candidates go through to the general.
The sales of supposedly banned Facebook ads to the Moms and others trying to influence Seattle's 2019 elections created a "huge problem," Seattle Ethics and Elections Director Wayne Barnett said at the time.
Among other things, the sales opened the door to a potential unfair advantage for those "not following the rules," Barnett said. As a spokesperson for the PDC put it at the time, Facebook's ad sales were also creating "a lot of confusion."
Soon, the Seattle Times editorial board was fuming, writing that Facebook was "making a mockery of Washington state campaign law."
"If Washington wants to be the leader on this..."
One of the things all the experts seemed equally concerned about is the PDC staff's decision to endorse a settlement that would let Facebook avoid any admission of guilt and let the company refrain from making any promises to follow Washington state law in the future.
Travis N. Ridout, who was one of the people the PDC invited to speak at its January forum, said he found this both "troubling" and "confusing."
Ridout serves as the Thomas S. Foley Distinguished Professor of Government and Public Policy at Washington State University, and he said a settlement with Facebook "would seem like an opportunity for the state to make sure that entities are complying with state law.
"If Facebook can get away with this," Ridout continued, "then one starts to wonder, ‘Why them and why not me?' Or, 'Why not my local campaign?' Or, 'Why not Google?'" (Which has been under investigation by the PDC for more than seven months.)
Dr. Shannon McGregor, an assistant professor studying social media and political ads at the University of Utah, was also invited to speak at the PDC forum. She was even more blunt in her assessment of the proposed settlement.
“It seems to me that if Washington wants to be the leader on this, then that would mean enforcement," McGregor said. "That’s not what this proposed agreement looks like.
“I am not anti-Facebook political ads," McGregor continued. "I think there are tons of benefits for them, especially in state and local races. I think they’re a really important tool.”
Because of that, McGregor said, she really wants Washington and Facebook to get this right.
“But if the State of Washington wants to set the bar for what this might look like," she said, "then this agreement doesn’t do that because it fails to hold Facebook accountable to the regulations."
That, she added, isn't good for the public, either.
McGregor is not one who thinks everything rides on the size of the fine Facebook ultimately receives.
“A bigger fine would send a bigger message," she said, "but almost no fine would hurt Facebook financially.”
Therefore, the most important thing, in her mind, is to get Facebook to make a binding promise to change.
Laughing out loud
Though the proposed settlement doesn't require such a promise, Lavallee did make a point of telling commissioners at the January 23 hearing that, based on the PDC staff's long discussions with Facebook, staff had come to an understanding that Facebook would be taking steps to get more into compliance with Washington law.
"Hopefully these commitments will prevent future enforcement," Lavallee said.
But "these commitments" are not written into the settlement agreement. They were only read aloud by Facebook's lawyer, Wynn Allen, during the January 23 hearing, and they were riddled with caveats and loopholes.
Here is the verbatim statement Allen read aloud to commissioners:
Moving forward, to the extent that Washington political ads are run in violation of Facebook’s policies, Facebook’s current plan is to respond directly to valid requests seeking information about Washington state political advertising, so long as the current law is in effect and circumstances do not evolve such that responding becomes impracticable.
Roth Barber, the managing director of the National Institute on Money in State Politics, laughed out loud when I read this statement to her.
“That’s a lot caveats," she said.
This verbal promise from Facebook's lawyer, she continued, is "built on a house of cards. Any one of those caveats in the statement could make the whole thing fall down.”
What, in Facebook's opinion, is a "valid" request? What does "impracticable" mean to Facebook? What happens if Facebook's "current plan" changes?
And, crucially for those seeking access to data on Facebook's Washington state political ads in the future: What does Facebook's "current plan" to "respond directly" to data requesters look like?
Allen admitted at the January 23 hearing that Facebook is still "ironing out the details of that process."
But, he said the "current plan" is that if Facebook receives a request it deems "valid," and that request is also from "a Washington resident" (though there is no requirement in Washington law that such requests must come only from state residents), then Facebook will respond first "by providing a link to the publicly available Ad Library and Ad Library report."
This, of course, will not provide "valid" requesters with all the information required under Washington state law, since Facebook's archives don't contain all the information required by state law.
To deal with this problem, Part Two of Facebook's "current plan" is to let the "valid" requesters ask for more information if they want it, at which point Facebook will start "working directly with the requester, if the requester seeks different additional information."
Allen said Facebook believes this plan "substantially complies with Washington state law."
Note that his word was substantially, not completely. Note, too, that none of this is written into the settlement agreement in any case, leaving Facebook a lot of latitude to change the "current plan."
As Roth Barber asked, "When do you leave the person being regulated to be in charge of their own compliance?"
Damon McCoy, a professor of computer science at New York University, offered a real world example that shows the problems of letting Facebook be its own regulator. One of his students, Laura Edelson, whose research into Facebook's ad archive and its flaws has been noted repeatedly in The New York Times, told this same story at the PDC's digital ad forum in Olympia.
Right before the recent British elections, Facebook's online ad archive for the UK experienced an outage. Suddenly, two days before the election, about 40 percent of the British election ads running on Facebook were no longer able to be viewed by researchers or the general public.
That was troubling enough. But, McCoy said, “The more troubling part about this is that Facebook didn’t notify anyone of the outage. It was left to researchers to discover the outage.”
The moral of this story overlaps with the subtext of Allen's "commitments" to the PDC's commissioners.
If Facebook is left to regulate itself, then Facebook decides what's "valid" and what's "impracticable" when it comes to disclosure, and the "current plan" can be whatever Facebook says it is at any given moment.
Roth Barber and Graham, of the Campaign Legal Center, both said that Washington regulators should instead swing hard in the other direction and make state government the keeper of a vast and useful archive of online political ads that would cover not just Facebook's political ads, but also political ads bought on every other platform.
The PDC is currently studying such an option. If it had that kind of an archive today, Graham said, "it would just be so much more straightforward and we probably wouldn’t be in this situation.”
"I would not have voted to accept it"
Anne Levinson, the longest-serving PDC chair in the agency's history, left the commission in December after three terms at its helm.
While stressing that she was only speaking as an individual, and that she hadn't read the proposed Facebook settlement before it became public, Levinson said: "I would have had significant concerns."
She continued: "There may be information that I don’t have, but based on the proposed stipulation and the public record I would not have voted to accept it."
Levinson outlined several principles she followed when holding hearings on proposed settlements as PDC chair, principles she hopes would be followed by any regulatory body around the country that's tasked with enforcing election law.
"First," Levinson said, "was there appropriate due process? Second, in terms of the substance of it, one should always look to see whether the respondent acknowledged the violation. A fundamental principle for me in accepting stipulations that came before the commission was an acknowledgment by the respondent that they had violated the law or rules, and clear steps that would be taken to ensure it wouldn’t occur again going forward.”
Levinson said that under her leadership, the PDC's commissioners never accepted a stipulation without an admission of guilt.
Another principle, Levinson said, is that the fine should be proportionate to the violation, and that a stipulation's recitation of facts—which inevitably help create a sense of the scale of the violation—should be "reflective of the totality of the record."
That means asking, "Were there repetitive violations?" It also means exploring "the nature of the violations, the history, the impact on the public of the violations.”
Trask, the UW law student whose complaint against Facebook would be "fully resolved" by this proposed settlement, said he hopes the PDC's commissioners at the very least move to amend the agreement when they meet again on February 27.
"I don’t think it’s acceptable in its current form," Trask said.
A smiling refusal
In the proposed settlement, a brief, vague reference is made to a six-page letter Allen's law firm, Kirkland & Ellis, sent to the PDC on behalf of Facebook in March 2019.
That letter was Facebook's first formal response to The Stranger's February 2019 complaint, and it argued that Facebook is immune from Washington state election law because of a controversial bit of federal law: Section 230 of the Communications Decency Act of 1996.
That federal law was created to provide early internet companies like AOL with immunity from libelous things third-parties might type in their online chat-rooms.
It was not drafted with the intent of letting companies like Facebook off the hook when it comes to state election laws requiring transparency in political ads that are sold and delivered over digital platforms.
But Facebook has been arguing for some time that CDA 230, as it's often known, means Washington's election laws can't be enforced against the company.
By neither explaining nor refuting Facebook's legal arguments in the proposed settlement, and by including settlement language that says "Facebook neither admits nor denies" violating Washington state law, the proposed agreement quietly sidesteps this fundamental conflict over Washington state's right to police its own elections.
It's a conflict that arose in the Ferguson case, too, and at the time the AG responded to it by saying: "We obviously disagree with [Facebook's] arguments."
In another example of the proposed settlement's side-stepping by omission, it states that based on the available evidence the PDC "may conclude" Facebook has violated state law, but it doesn't state whether the PDC actually has concluded that Facebook violated state law.
All of which has the effect of allowing Facebook to proceed with what appears to be a strategy of smiling refusal—engaging politely in whatever conversations the PDC wants to have, for as long as it wants to have them, but never admitting that it broke or even has to comply with Washington election law.
At the January 23 hearing, Commissioner William Downing, a former King County Superior Court judge, did tell Facebook's lawyer that "the Section 230 defense, the federal preemption, does not strike me as a very powerful argument." And Lavallee noted several times during the hearing that it's the PDC, not Facebook, that has the final say on how election law will be enforced.
But to Trask, these seem like things that would be important for the PDC to state directly, in writing, in any settlement with Facebook.
"I would love to see Facebook admit that Section 230 does not allow them to ignore state-level campaign finance regulations," Trask said.
If the PDC isn't up for taking on that kind of fight with Facebook, then he hopes it refers the matter over to Attorney General Bob Ferguson so that Facebook's arguments can be "pulled apart" in court.
“I don’t think the stipulation gets us there like litigation could," Trask said.