Close Social Media Loopholes to Protect Upcoming U.S. Elections

It has been two weeks since Facebook CEO Mark Zuckerberg’s hearings on Capitol Hill where many committee members on both sides of the aisle voiced the need for regulation but deferred to the company to police its own platform. Their hesitation to act precipitously reflects the views of the majority of Americans who revealed in a recent poll that they want regulation but don’t feel Congress is up to the challenge. However, new data takes away the option for delay. While Congress may prefer to wait for Facebook and other tech platforms to self-regulate before considering legislative options, it must take steps to protect the upcoming election. Current loopholes allowing secret funding and targeting of campaign ads—including by foreign state-sponsored operatives—should be closed to prevent another outbreak of viral political disinformation and division.

Young Mie Kim, a journalism professor at the University of Wisconsin-Madison, collected controversial Facebook ads displayed over a six week-period before the 2016 elections. She found that one-half of groups purchasing these ads not only failed to file a report with the Federal Election Commission (FEC), but also had no IRS or online footprint indicating who they were. When she mapped these against the House Intelligence Committee’s list of Russian-linked groups, she found that one sixth of the secret groups she tracked were associated with the Internet Research Agency—a Russian troll farm now under U.S. sanction. What's more, there were four times more ads paid for by groups that did not disclose their activities to the FEC than those that did.

These unidentified groups were able to advertise because of dangerously outdated political advertising and privacy rules. The law requiring TV stations and cable operators to provide the public with lists of political advertisers has never been updated to require the same of internet companies. Another law requiring the disclosure of the ultimate sources of donations that fund political ads was interpreted so narrowly by the FEC that it never applies. And U.S. privacy laws have not been updated to address the vast stores of user data collected from a variety of sources—including voter rolls and survey responses—and used to craft false and inflammatory content that is micro-targeted to specific audiences.

The combination of secret advertisers and secret ads fuels hate speech and voter suppression. Advertisers evade accountability while the ads themselves evade audiences that might refute or be troubled by them. Advertisers can use routine A/B testing and other online marketing strategies to develop content that will spread virally. Those who click on the divisive messages will be served with more, and eventually share them with friends. As a result, some individuals are sent down conspiracy-theorist rabbit holes like Pizzagate during the 2016 elections.

Congress doesn’t need to understand the inner workings of the internet or how behavioral advertising works to close the loopholes before the upcoming elections. Facebook and Twitter recently announced support for the bipartisan Honest Ads Act that would close the online ad disclosure loophole. But Congress should also require online platforms to verify the identities of the donors to the groups buying political ads so that donors can’t hide behind shell companies. Opensecrets.org was only able to identify who funded a set of inflammatory anti-Muslim ads thanks to an error by the advertiser’s accounting firm.

Congress should adopt European-style rules to curtail the political micro-targeting of propaganda that slices and dices the electorate into polarized silos. It can take a page from Europe’s new General Data Protection Regulation, which goes into effect on May 25. European law makes a distinction between commercial data and data on users’ political and philosophical views, which are considered sensitive data. Under the new rules, organizations will be required to obtain opt-in consent for each proposed use of a user’s political or philosophical views. Users cannot be denied the service if they do not consent, which means they have a real choice as to whether they agree to being targeted for political ads. Congress should consider implementing a similar rule, which would have prevented Cambridge Analytica’s controversial data harvesting from Facebook.

Finally, Congress should defer to experts with technical know-how to ensure that new advertising regulations don’t harm free expression, innovation, or competition just as it does with the Food and Drug Administration, the Environmental Protection Agency, or the National Highway Traffic Safety Administration. Given its experience with online privacy and consumer protection, the Federal Trade Commission is the best place to start but Congress would need to give it rulemaking and fining authority.

By updating requirements designed for another era, Congress can force hostile foreign state-sponsored groups into the light, stem the contagion of online hoaxes, and close disclosure loopholes for online advertising.