"Google's Widespread Failure to Comply"
"Google's Widespread Failure to Comply"
*****⚖️🏛📸😮Looking for updates on the small claims judgment battle of the century? Scroll on down. There are updates on Wurtz v. Facebook beneath the news on Washington State vs. Google.😮📸🏛⚖️*****
Think about how fast Google search results arrive. “Practically instant” has long been a company goal, and in that same instant Google often pairs results with targeted ads. Sometimes, those ads are political.
Now consider how long Tallman Trask, a second-year law student at the University of Washington, has been waiting to receive information from Google about all the political ads the company sold targeting Washington state’s elections in 2019.
Under Washington state law, the information Trask is seeking should have been easily available to him within 24 hours of each Google ad’s original distribution. But Trask has now been waiting 16 months and, according to a lawsuit filed last week by Washington State Attorney General Bob Ferguson, Trask still hasn’t received a complete response.
Why can’t Google answer basic questions about political ads as quickly as its search engine can answer other queries? That’s what Attorney General Ferguson wants to know.
“Google is one of the largest corporations in the world,” the AG recently told The Seattle Times, “and should be able to figure out how to follow our campaign finance laws.”
This is Ferguson’s second lawsuit against Google over this issue. It comes, as Wild West predicted it would, on top of Ferguson’s second lawsuit against Facebook over political ads. That case is currently winding its way through the discovery phase in King County Superior Court, with Facebook facing some pretty intriguing questions from lawyers for the AG’s office.
Google and Facebook both settled similar political ad lawsuits filed by Ferguson back in 2018, paying $200,000 each but avoiding any admissions of guilt. Now that Ferguson is prosecuting Google and Facebook for repeat violations (which the AG says he takes “very seriously”), the possibility of comparable settlements seems remote. Ferguson is presently asking for injunctions that would require each of the two tech giants to comply with Washington state campaign finance law going forward, plus potential financial penalties.
These twin cases will now proceed against a backdrop of rising concern about Google and Facebook becoming more powerful and populous (at least in terms of global users) than the state and national governments that are straining to regulate them. “The sovereign state of Facebook vs. the world,” is how Axios recently put it.
But for Trask, the legal issue is straightforward: Washington law requires Google to hand over financing and reach records for political ads, but Google isn’t complying. “Washington law gives folks a right to inspect records of ad sales,” Trask said, “and exercising that right shouldn’t require a year-plus delay, a bunch of hoops, and involvement of both the Public Disclosure Commission”—which investigated Trask’s case for seven months—“and the AG’s office.”
Google, in a statement to Wild West, continued to lean on a prohibition against Washington state political ads that it announced in June 2018 (right after Google was hit with Ferguson’s first lawsuit).
“We don’t accept Washington state election ads,” Google said in the statement. “Advertisers that submit these ads are violating our policies and we take measures to block such ads and remove violating ads when we find them. We have been working cooperatively with the Washington Public Disclosure Commission on these issues and look forward to defending this litigation."
In the lawsuit filed last week, Attorney General Ferguson points out that while Google says it doesn’t accept Washington state election ads, it’s sold a lot of them since its ban went into effect. By the AG’s count, 57 local candidates and committees have made 188 payments to Google for political ads since June 2018—the month Google’s ban started—bringing the company a total of $461,334. That may be an insignificant revenue stream for Google, which lately has a market capitalization of around $1.3 trillion, but it’s a clear indication Google’s ad ban isn’t working.
Ferguson only knows about the existence of all these Google ads because campaigns and candidates themselves were required to report them to the Public Disclosure Commission. To deal with the problem of ads that go unreported by their purchasers, Washington state law also requires “commercial advertisers” like Google to make comprehensive political ad disclosures. When companies like Google don’t, the audit function provided by that part of the law breaks down and opportunities for dark money increase, as the AG explains in his suit:
Trask said that after 16 months and two state investigations, he’s been left with the distinct impression that “even Google isn’t quite sure how many Washington political ads they sold in 2019.”
A request for Google ad information that I made two years ago also comes up in the AG’s lawsuit. In March 2019, in the course of my reporting, I asked for “all of the information that Google is legally required to disclose” about one small, off-season initiative campaign in Spokane.
The measure on the Spokane ballot involved a pretty common idea: raise property taxes to fund increased police and fire services. The victorious side, which called itself “Yes for Public Safety,” had reported spending a few thousand dollars on supposedly banned Google ads. I noticed, and was curious what their money had gotten them.
To this day, Google has not given me any of the political ad information I requested. But when investigators with the Public Disclosure Commission inquired, Google told them a Spokane union was behind the campaign and had spent $4,665 for ads that resulted in 6.2 million “Yes for Public Safety” ad impressions in the Spokane area.
There are only about 210,000 people living in Spokane. Only about 40,000 people ended up voting in that particular February election. To me, this example of one small rural city’s election being quietly swamped by a tsunami of digital ads shows why the public should be able to learn, from the digital platforms themselves, the true extent of targeted political advertising efforts.
In court filings, Facebook has said Washington State is asking for too much information from online ad-sellers, leading to a disclosure system that is “onerous” and “violates the First Amendment.” Facebook also claims that Section 230, the much-discussed grant of specific legal immunity to digital platforms, prevents Facebook from being held accountable to Washington state campaign finance law in the same way a radio station, television station, or newspaper would be.
When Google files its response to the AG’s new lawsuit in the coming weeks, will its arguments look similar to Facebook’s? Or will these two tech behemoths, accused by antitrust investigators of colluding on advertising issues in the past, end up going their separate ways as they battle with the AG over the validity of Washington state’s disclosure law? We’re about to find out.
Final outcomes in these cases are not likely to arrive soon, however. As with other standoffs over tech regulation in Australia, North Dakota, and DC, a recurring lesson of this particular standoff has been that digital titans with essentially infinite resources for lawyers and lobbyists can find plenty of ways to delay and divert while the world spins on.
Already, Trask has waited 16 months for election-related records that Washington state law says he should’ve been given almost immediately. I’ve waited more than 23 months. The wait is likely to continue, but the eventual legal outcomes could have consequences far beyond two local political ad record requests. The resolutions of these new Google and Facebook cases stand to tell us a lot about who the First Amendment really protects, what Section 230 really prohibits, and how far a state government is really allowed to go when it comes to regulating its own elections in the digital age.
Now, what of that surprisingly epic small claims dispute between political operative Zach Wurtz and Facebook? Has it continued to offer gripping (for small claims court) developments ahead of next Monday’s potentially decisive hearing? Yes, it has.
On Friday, former Washington State Attorney General and current Facebook attorney Rob McKenna told the court he was revising Facebook’s previous arguments for nixing a $999 judgment Wurtz won against Facebook. That judgment was awarded to Wurtz on January 11 after he small-claimed that Facebook had harmed his political ad-tracking business by—you guessed it—failing to disclose Washington state political ad data. Facebook, uncharacteristically, failed to show up and defend itself against Wurtz’s allegations.
While McKenna argued in earlier filings that Wurtz’s $999 judgment should be scratched because Wurtz’s case was “not properly served” on Facebook, that contention is now being abandoned.
“Facebook now concedes that the claim was served on the correct address,” McKenna writes in his amended motion.
What happened? First, the language from McKenna’s new filing:
“On February 19, 2021,” McKenna writes, “Facebook received information indicating that the address where the claim was served matches the address listed for Facebook on the Washington Secretary of State’s Corporations and Charities filing system. Facebook promptly investigated and confirmed that the address listed is in fact associated with Facebook’s registered agent for the state of Washington.”
Translation: Facebook was presented with new information, conducted an investigation, and through its investigation made itself aware of the address of its own registered agent.
But where did this new information come from?
On February 19, 2021, I e-mailed McKenna with a screen grab from the Washington Secretary of State’s Corporations and Charities filing system showing the address of Facebook’s registered agent in Washington state and asking if I was missing something. The address matched the address where Wurtz had served his claim, I noted, even though McKenna was telling the court the address was “not associated with Facebook.”
McKenna did not reply to my February 19 e-mail. He also didn’t reply to an e-mail sent on Friday asking him whether that February 19 email was the source of the new information that caused Facebook to file its amended motion.
In any event, Facebook’s failure to appear in small claims court to defend itself on January 11, McKenna now argues, was the result of two problems: “excusable neglect” by Facebook and some potentially strategic foot-dragging by Wurtz when it came to serving the claim.
While Wurtz originally filed his small claims case on November 24, 2020, McKenna’s new argument highlights the fact that Wurtz “waited over a month, until December 31, 2020, to serve it.” In other words, he made Facebook aware of his claim on New Year’s Eve.
“New Year’s Eve and New Year’s Day are company holidays at Facebook,” McKenna writes, “and the following days, January 2nd and 3rd, fell on the weekend. While it is true that service on December 31, 2020 is technically compliant with the requirement that the claim be served 10 days prior to the first hearing, in reality, serving a claim on a major corporation, at a location outside of its home state, on the eve of a national holiday, all but guaranteed that the claim would not be received by the proper group at Facebook in time for it to prepare for and attend the January 11, 2021 hearing.”
McKenna also contends, again, that the copy of the complaint Facebook received was only marginally legible, though it remains unclear whether he believes this is the fault of Facebook’s own registered agent, Wurtz, or some other party.
If McKenna succeeds in appealing to a judge’s sense of “basic fairness” about the service issues, then he’ll be able to break through to the second part of his argument, which is that Wurtz’s claim itself is “entirely frivolous,” fails to clearly state its legal argument, and appears to stem “from a baseless theory that Facebook has economically harmed [Wurtz] by not providing him access to Facebook’s internal political advertising data pursuant to his demands.”
“Is Facebook really asking to be exempt from yet another law here in Washington?” Wurtz asked in response. “I have no legal training so I have to stop frequently and look things up as these motions keep coming in, but from my understanding Rob McKenna is now arguing that because a large corporation like Facebook has the resources to hire three of America’s biggest law firms for a $900 small claim, Facebook’s size somehow also puts them at a disadvantage against a guy who can’t even afford one lawyer.
“The court has already ruled my claims have merit,” Wurtz continued. “I was still required to present my case at the [January 11] hearing for the judge to make sure my claim was not frivolous or meritless. Facebook did not present a defense and I was awarded a judgement because I was able to prove my damages. As far as I understand, it is already a settled matter of law and the window to appeal has lapsed.”
Some of the stories I’ve been reading this week:
• Writers may soon be able to charge for Tweets — The subscription model is coming to Twitter.
• Trump has appealed his Facebook suspension — The Facebook Oversight Board confirmed that “a user statement has been received in the case before the Oversight Board concerning President Trump's Facebook and Instagram accounts.” That’s about all we know.
• It’s the bundling, stupid — Rob Pegoraro on a point that was almost missed at the recent House hearing on cable television and misinformation.
• “Mark my words: Change is coming. Laws are coming” — So said Democrat David Cicilline at the most recent House subcommittee hearing on Big Tech and antitrust issues.
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