This week, three congressional committee hearings will probe Russian attempts to influence our election campaign last year on social media. S.1989, the recently introduced, so-called “Honest Ads Act,” likely will feature prominently. The bill is being sold “first and foremost [as addressing] an issue of national security.”
But unless Americans exercising their First Amendment rights is now “an issue of national security,” the bill and its sponsors are not being honest about its effects. With Americans bearing 99.99 percent of its regulatory impact, the “Honest Ads Act” is a sledgehammer for a problem better addressed with a scalpel.
According to the bill’s own legislative findings and its sponsors’ remarks, more than $1.4 billion was spent on online political advertising last year. Of that amount, some $100,000 (less than 0.01 percent) has been reported thus far as coming from Russian interests. But S.1989 fails at even a perfunctory attempt to target foreign interference. Instead, the bill would almost entirely regulate Americans.
S.1989 begins by undoing the Federal Election Commission’s “internet exemption,” under which online political speech generally is not regulated unless it is a “communication placed for a fee on another person’s website.” The bill would impose a much broader standard, under which any “paid internet, or paid digital communication” could be regulated.
The change may appear subtle, but it makes a world of difference as groups making even minimal expenditures could be regulated for content on their own websites, blogs and mass emails. Indeed, the FEC regulated such things prior to its “internet exemption” enlightenment. Videos that groups post on YouTube and anything they publish on Facebook and Twitter also possibly could be regulated under S.1989.
S.1989 next expands regulation of so-called “electioneering communications” to include online ads that refer to elected officials and candidates within certain pre-election periods. Again, this legislative rhetoric obfuscates reality. In fact, many “electioneering communications” are non-electoral issue advocacy. For example, in a case the Institute for Free Speech litigated under the existing “electioneering communications” law, a think tank’s ads asking Coloradans to contact their senators about a pending criminal justice reform bill was held to be an election ad.
At least under current law, only TV and radio ads targeted to those eligible to vote for the referenced candidates are “electioneering communications.” Despite the bill’s legislative findings about the ability to microtarget internet ads, S.1989 would indiscriminately regulate online ads even when they are not targeted at eligible voters. Thus, ads inviting New Yorkers to contact House Ways and Means Committee Chairman Kevin Brady Kevin Patrick BradyUS wins trade case over 'dolphin safe' tuna labeling Overnight Finance: House adopts Senate budget, taking step to tax reform | GOP worries Trump feuds will endanger tax plan | Trump talks NAFTA withdrawal with senators | Treasury calls for looser oversight of insurers The Hill's 12:30 Report MORE (R-Texas) about the pending tax bill could be regulated, as could ads asking Texans to urge Senate Minority Leader Charles Schumer Charles (Chuck) Ellis SchumerTrump's tax plan and the certainty of Democratic resistance Dems cheer Flake after scathing Trump speech Cruz throws support behind Roy Moore in Alabama Senate race MORE (D-N.Y.) to stop blocking judicial nominees.
S.1989 also would effectively impose a new reporting requirement — on top of the existing FEC reporting burdens — for political and issue advertising costing as little as $500. A publicly accessible database would have to contain a copy of all regulated ads and details about how each ad was targeted, when it ran, the average rate charged, the candidate or “national legislative issue of public importance” discussed, and information about the sponsor and its officers or board members.
While broadcasters already are subject to a similar “public file” requirement, the economics and policy rationale for regulating costly broadcast advertising are quite different from those for regulating low-cost internet ads. The compliance costs, when combined with the liability that S.1989 would impose on online platforms for recordkeeping errors, may drive online advertising costs out of the reach of many small grassroots organizations. Sponsors of controversial causes, like “Black Lives Matter” or tea party groups, also may find themselves targets of retaliation by opponents using the “public files” to track their online activities.
Facebook and Twitter have recently announced their own efforts to address foreign propaganda, which contain some practices similar to those mandated by S.1989. Nevertheless, these self-initiated measures are preferable to inflexible, one-size-fits-all legislation, as they can be adjusted and tailored over time to meet each platform’s unique advertising program and changing foreign threats.
Additionally, Congress can update the Foreign Agents Registration Act (FARA), which specifically addresses foreign propaganda campaigns. Like S.1989, FARA requires disclaimers, periodic registration, and copies of foreign propaganda to be filed for public inspection. However, FARA only covers foreign interests acting through agents, as the law was written before a time when foreign interests could directly purchase internet advertising without any intermediary. This can be easily fixed, and unlike S.1989, amending FARA would not primarily regulate Americans.
Foreign interference with our election campaigns is a serious issue, and the sponsors of S.1989 are doubtlessly well-intentioned. But instead of specifically addressing foreign interests, the bill would primarily regulate Americans’ political speech rights, thereby making America look just a little bit more like Russia.
Eric Wang is a political law attorney and senior fellow at the Institute for Free Speech.
neums08 on October 30th, 2017 at 18:55 UTC »
This title is quite misleading. This is not about net neutrality at all. This article is about requiring the disclosure of the source of funding for political advertisements on the internet and social media. If that surprises you, please re-read the article.
These comments seems to imply that requiring these disclosures would somehow go against net-neutrality. If that is the case, can somebody explain to me how?
I'm a strong proponent of net neutrality, but I don't see how it's incompatible with disclosing the financial source of political advertisements.
Edit: Here's a summary of the bill in question: https://www.govtrack.us/congress/bills/115/s1989/summary
The main argument of the article seems to be that there would be costs associated with complying with the new regulations, and those costs would be passed on to the organizations buying ads on internet platforms. They speculate that this would make internet advertising too expensive for grassroots organizations.
I do not believe this is a likely outcome, as the burden of recording who is purchasing ads would fall on to the advertising platform companies, i.e. Google and Facebook. It's possible that there would be some additional marginal costs to these companies, but certainly not enough force them to raise prices significantly.
This quote is specifically disturbing:
The bill regulates advertising platforms that operate in America, not the advertisements themselves. Groups would still be able to advertise whatever political position they want, they would simply need to also put their name on it, just like on TV ads where they say "Paid for by the so-and-so organization for political stuff".
The connection to Russia would be a stretch even if it were based on sound arguments, which it is not. This is click-baiting and fear-mongering all rolled into one bad article which reads like a Fox News piece.
krugerlive on October 30th, 2017 at 18:42 UTC »
I think most people here are upvoting this thinking it's about net neutrality and it's not. This is the law requiring political advertisers to identify as such.
Arsenalisbest on October 30th, 2017 at 18:41 UTC »
For those of you wondering, the title is deliberately misleading. This law would regulate paid political advertisements on the internet. At its current status, the internet does not have any regulation whatsoever on that specific frontier. In many ways, this is actually a good thing.
EDIT: Here is a reasonably simplistic summary of the law.
Author is part of a PAC that is anti regulations for political advertising. More Evidence
If you're thinking about contacting your legislators, you should probably tell them that you support this bill rather than being a hair on the arm of a PAC.
If you just went into the comments for a BS check, here's a mirror of the text of the article so you don't have to click on the article and give the author revenue for a poorly written hit piece: