On October 19, 2017, a bipartisan group of federal legislators introduced legislation to increase transparency of and accountability in online political advertisements in order to limit foreign interference in US elections. Senators Amy Klobuchar (D-Minn.), John McCain (R-Ariz.), and Mark Warner (D-Va.) introduced the Honest Ads Act; soon thereafter, Representatives Mike Coffman (R-Colo.) and Derek Kilmer (D-Wash.) introduced an identical companion bill in the House (collectively, the “legislation” or “proposed Act”).
The proposed Act sets forth a number of findings based on the revelation that the Russian government undertook activities to influence the outcome of the 2016 elections. Most pertinent to the legislation is the disclosure by Facebook on September 6, 2017, that between June 2015 and May 2017, accounts associated with a Russian pro-Kremlin organization spent $100,000 for roughly 3,000 political advertisements. The legislation also notes testimony from Gen. (Ret.) Keith B. Alexander, former Director of the National Security Agency, in which he pointed out that propaganda can proliferate much more rapidly through social media than through more traditional media outlets. In introducing the proposed Act, Senator McCain stated that “[i]n the wake of Russia’s attack on the 2016 election, it is more important than ever to strengthen our defenses against foreign interference in our elections,” but that “US laws requiring transparency in political campaigns have not kept pace with rapid advances in technology.”
To increase this transparency, the legislation would broaden the definition of “public communication” and “electioneering communication” in the Federal Election Campaign Act (“FECA”). Specifically, the definition of public communication would be expanded to include any “paid internet, or paid digital communication.” The definition of electioneering communication would be expanded to include any “qualified internet or digital communication,” which is defined as “any communication which is placed or promoted for a fee on an online platform.” The net result of these changes would be to bring such paid communications within the regulatory framework of FECA. The legislation would also add rules on disclaimers required to be included with such paid online content.
The proposed Act would require that any digital platforms (including social networks, ad networks, or search engines) with 50 million or more unique visitors a month make publicly available all political advertisements purchased by any entity that spends more than $500 over 12 months on such advertisements. The legislation sets forth detailed requirements about such a disclosure, including requiring that the platform disclose a digital copy of the advertisement, the purchaser of the ad, the candidate supported by the ad, a description of the target audience, the number of times the ad was viewed, and the dates it was first and last displayed. The proposed Act would also require platforms to publicly disclose the average rates charged for such advertisements.
Finally, the legislation would add a new requirement to the FECA that all TV and radio broadcasters, cable and satellite providers, and any online platform make “reasonable efforts to ensure” that political advertisements “are not purchased by a foreign national, directly or indirectly.” However, the proposed Act does not include any detail on what such “reasonable efforts” must entail.
We will continue to monitor developments on this legislation.
The Senate bill is available here. The companion House bill is available here.
