While Facebook’s been introducing the world to its private Supreme Court, Zach Wurtz, a 37-year-old political operative in Washington state, has been busy beating Facebook in one of the lowliest norm-courts in the land: small claims court.
Wurtz makes his living doing unglamorous, sometimes grimy work for political candidates. He’s a “tracker” who, for a fee, will follow your election-season opponent everywhere and record everything they say, waiting to catch a verbal slip that could become a viral hit. He’ll also send regular reports on your opposition’s advertising spending across all forms of media, and it’s this second aspect of Wurtz’s job that’s led him into a series of small claims standoffs with Facebook over political ad transparency.
With a client list that’s included US Senators, the current Washington state governor, and many other politicians at all levels of government, Wurtz aims to be comprehensive. That means he needs solid political advertising data, whether it’s data about digital election ads on Facebook or data concerning more traditional election ads aired by local radio or television stations. To get this data, he relies on longstanding laws that require it to be made public in Washington state.
But, Wurtz contends, Facebook has declined to give him political ad data he’s entitled to see. “This is an ongoing issue with Facebook,” Wurtz told small claims court Judge Kevin G. Eilmes during a January 11 hearing, according to audio provided by the court.
The lack of disclosure by Facebook, Wurtz alleges, has cost him money through harm to his ad-tracking business. He puts his total lost revenue at $75,000 over the last four election cycles.
It does seem fair to say there’s an “ongoing issue” with Facebook political ads in Washington state. Bob Ferguson, the state’s attorney general, is presently in court accusing Facebook of “repeatedly” breaking Washington state’s political ad transparency law in exactly the way Wurtz alleges: by failing to provide individuals with required information about the financing and reach of paid digital messages targeting statewide and local elections.
What’s novel about Wurtz’s situation is the way he’s tried to resolve the problem.
The attorney general, as the people’s lawyer, is in state court trying to enforce state campaign finance law for the benefit of all Washingtonians. If the AG wins, any damages Facebook pays will go into state coffers. Wurtz, on the other hand, has taken a more personal approach, asking small claims court judges to award him damages to help make up for the money he argues he’s missed out on due to Facebook’s lack of transparency.
Facebook has not yet responded to multiple questions sent last week about Wurtz’s cases and allegations, although a Facebook spokesman, Andy Stone, did acknowledge receipt of the questions.
In the past, when responding to this type of criticism, Facebook has pointed to its online ad archive. But the archive doesn’t provide all the political ad data required under Washington state law and, as Wurtz and others have pointed out, the archive also “routinely misses” political ads that should be there.
“Very interesting,” Judge Eilmes said after Wurtz laid out his position on January 11. “You don’t see that everyday.” The hearing was taking place in eastern Washington’s Yakima County, where Wurtz says his business is partly located.
Facebook failed to appear for the Yakima hearing, though court documents show the company was served notice. “Maybe Facebook has bigger things going on today,” the judge commented.
He awarded Wurtz the exact amount of damages Wurtz had been seeking in Yakima County: $999.
Later, Wurtz said he’d requested that specific amount of damages because he believed that in Washington state, small claims court judgements can’t be appealed if they’re under $1,000. When told he appears to be wrong on that point, Wurtz responded: “Shit… I should’ve asked for $5K.”
This is not the first time Wurtz has taken Facebook to small claims court over this issue. Last summer, he alerted me to a case he had pending against Facebook in small claims court in the Seattle area. In the lead-up to that case, Wurtz had shown up at Facebook’s Seattle offices to request the company show him its local political ad books—a request that may sound odd, but that anyone is allowed to make under Washington state law.
“I also go to television stations and radio stations regularly, so I’m familiar with the process,” Wurtz told me last summer.
Wurtz stressed that he’s not the kind of person who hates Facebook. “I had to be one of first 10,000 adopters of this thing,” he said. “I am a Facebook fan. I like having my Facebook account and having connections to my friends…. I just want them to follow the law.” He claims that after reaching out for detailed Washington state political ad information using the “Help” feature on his Facebook business account, he was told by a Facebook representative to head down to the Seattle Facebook office to inspect the ad books, which are sometimes referred to as a political ad-seller’s “public file.”
But when Wurtz showed up at the Seattle Facebook office, he said, “Facebook security kept approaching me and harassing me and asking me what campaigns I was there with, asking me for my Facebook profile and stuff, and refusing to let me view the public file.”
Both sides ended up calling the police. Facebook accused Wurtz of trespassing. Wurtz accused Facebook of violating Washington state’s disclosure law. The police were a lot more familiar with trespassing rules than political ad inspection rights, Wurtz recounted, and he ended up being officially barred from Seattle’s Facebook offices.
“I filed a suit in King County like the next day,” he said, referring to the county that holds Seattle.
Because Wurtz couldn’t afford a lawyer, he took his suit to small claims court, where proceedings are generally supposed to involve individuals working out disputes without lawyers involved. Given that norm, “the opportunities for Facebook to stall, delay, or otherwise pull legal maneuvers is minimized,” Wurtz said. “The average person has a legitimate shot at speedy justice.”
When Wurtz’s virtual small claims hearing came around last September, the unusual occurred. Multiple Facebook lawyers showed up on the Zoom hearing, citing formal briefing materials they’d filed with the small claims court judge. One of those lawyers, Lauren Tsuji of Perkins Coie, apologized for lawyers appearing and acknowledged it’s not usually how small claims proceedings go.
Wurtz had launched his King County case by alleging a violation of Washington state’s political ad disclosure law, Tsuji argued, but that law “does not create any individual rights.” To prove this, she cited a 2018 federal court ruling against Facebook in a separate political ad disclosure case.
The law’s lack of “any individual rights” simply means that individuals can’t haul Facebook into court as a first step in enforcing the law’s provisions. If political ad-sellers in Washington state aren’t disclosing information as required by law, people are supposed to first complain to the Washington State Public Disclosure Commission, which, if it decides to do so, can then refer cases to the Washington State Attorney General’s office for investigation and potential prosecution. In the process, any eventual lawsuit ends up coming on behalf of the state rather than particular individuals. This is precisely the series of steps that led to the attorney general’s present lawsuit against Facebook.
Judge Gregg Hirakawa, who presided over Wurtz’s September 2020 small claims case in King County, ultimately sided with Facebook. (Though not before Wurtz complained at the Zoom hearing of being vastly outgunned. “There’s five Perkins Coie lawyers that I’ve been going up against since January,” he lamented from his couch.)
“I don’t think I have the authority to even hear the case unless the PDC does it’s thing first, or is given an opportunity to do its thing first,” Judge Hirakawa told Wurtz.
After losing, Wurtz re-filed his King County claim so that he’s no longer focusing the court’s attention on violations of state disclosure law. Instead, he’s claiming that by denying him political ad records, Facebook has engaged in “tortious interference with a business expectancy.” He’s still waiting for his new King County hearing date, and while waiting he decided he’d try his business interference argument in another place where he does business, Yakima County.
This, Wurtz told me, was in keeping with something he’d said to Facebook in the run-up to his first hearing. According to Wurtz, sometime after he filed his King County small claims case an attorney for Facebook reached out to him to discuss a possible settlement. “I told them I would be coming at them in every county they do this in,” Wurtz said.
Questions about Facebook’s alleged settlement proposals are included in the still-unanswered queries sent to the company last week. Wurtz, seeking to prove those settlement discussions occurred, provided me with emails documenting his negotiations with Facebook, which dragged on for months. Those negotiations also included phone calls, and Wurtz says the company’s lawyers at one point verbally offered him $5,000 to settle. At another point, Wurtz says, they verbally floated the idea that Wurtz begin working for Facebook lobbying the Washington State Legislature to change the state’s political ad disclosure law. Wurtz claims that after he asked to be paid close to $80,000 for the job, the idea fell through.
At another point, Wurtz says, Facebook lawyers verbally made clear to him that the terms of any settlement would bar him from speaking to me or the attorney general about his politcal ad concerns. In an email shared by Wurtz and dated May 5, 2020, a Facebook lawyer at Perkins Coie sent Wurtz a “proposed settlement agreement” that would have barred him from making “any public negative, derogatory, or disparaging statements or communications, whether oral, electronic, or written, about the other Party related to Washington political advertisements.”
“I’ve got student loans,” Wurtz told me. “I was ready to sell out.”
But after selling his car to hire a lawyer who could review the scope of the settlement agreement Facebook offered him, Wurtz said, he decided it was too sweeping and chose to walk away with a “Thanks, but no thanks.”
There aren’t a lot of people who would try to take on Facebook and it’s well-paid lawyers in small claims court once, let alone multiple times in two different counties. Wurtz, who studied at the Edward R. Murrow College of Communication at Washington State University, explained: “This kind of stuff fits my personality.”
He got into ad tracking in his 20s when he was working on the US Senate campaign of Patty Murray. One day the campaign manager came down the hall and asked if anyone knew how to read an ad-buy sheet. Wurtz knew how to do that from his time at the Murrow school. Soon, he was running around to local TV stations, getting the sheets, and compiling reports on the ad buys of Murray’s opponent.
People loved it, and after that campaign he turned his expertise in compiling those reports into a business.
Because Wurtz knows that local TV stations with a lot less money than Facebook are able to comply with Washington’s ad disclosure rules, he believes it must be possible for Facebook to comply, too.
“That’s the whole goal of this,” he told me. “To get Facebook compliant.”
He hasn’t seen his $999 yet, and while he admits he’ll feel some personal satisfaction if and when the $770 billion social media giant delivers the payment, he promised to give the money away. (Just in case it never comes, he says, he’s currently working on court filings that he believes could give him a $999 lien against Facebook’s Seattle properties.)
“As long as the outcome is that in the future, when someone wants to know how much someone paid for an ad and the extent of the ad, we can know it—that’s what this is about,” Wurtz said.
He pointed out that in recent weeks, people have been announcing their local candidacies for Seattle mayor, Seattle city attorney, and other important local offices. Even though Facebook says it’s banned local political ads in Washington state for more than two years in an effort to avoid trouble with local disclosure laws, the company has been selling local political ads in every major Washington state election since, as documented in the current lawsuit from the attorney general.
Looking months over the horizon toward the upcoming local elections this fall and the potential candidates who will be running, Wurtz said: “It’s a matter of time before they find ways to start purchasing Facebook ads… It’s going to be no time before the dark money starts coming in… Now is the time when Facebook needs to get compliant, because it’s way too late when I start asking for ad information in August or October, right before the primary and general elections.”
Some of the stories I’ve been reading this week:
• Parler is back online — “It was unclear exactly how Parler had figured out how to host its site on computer servers,” The New York Times writes.
• Microsoft is into the Australian model — The company wants Facebook and Google to have to share revenue with news producers.
• States are doing it for themselves — With tech regulation stalled out in DC, unlikely places like North Dakota are becoming battlegrounds.
• The government of India is at war with Twitter — The issue is the government’s demands that Twitter block accounts related to the protests by farmers. After initially blocking 250 accounts, Twitter soon restored those accounts and has since been refusing the government’s requests.
• Television is still a major vector for disinformation:
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