Almost exactly seven weeks from today, two runoff elections in Georgia will determine control of the US Senate. That, in turn, will determine the direction of American politics for at least the next two years.
But over the next few weeks, as the Georgia campaigns kick into high gear, the four candidates vying for those Senate seats won’t be able to run any Facebook ads. No one in politics is happy about this.
Not supporters of the Democratic challengers in Georgia, Raphael Warnock and John Ossoff. Not backers of Georgia’s Republican incumbent Senators, Kelly Loeffler and David Perdue. As one campaign strategist told The Washington Post, “The timing of it could not be worse.”
The predicament in Georgia is a downstream consequence of a Silicon Valley decision made with good intentions. Back in September, Facebook announced it would enact a nationwide ban on political ads beginning one week before Election Day. The unprecedented move was meant to help the platform keep on top of pre-election misinformation, but with President Trump continuing to undermine the legitimacy of the election well after voting has finished, Facebook is taking advantage of its initial vagueness about when the ban would expire.
The company now says it’ll keep its political ad ban in place until we get closer to, or perhaps reach, the official certification of election results in December.
Until then, couldn’t Facebook just make an exception for political ads targeting Georgia?
The company’s response to this question caught my eye. Here’s Facebook ad executive Rob Leathern explaining things in a short Twitter thread:
Leathern is saying that Facebook can’t simply press a button and turn on political ads for only the State of Georgia. To which a number of critics have responded: You’re a global tech powerhouse worth more than $700 billion and you don’t have an ad system flexible enough to enforce different ad policies in different states???
I’ve heard this sort of criticism before. It’s been lodged against Facebook in Washington state as the tech giant, despite years of effort, has repeatedly failed to turn off ads targeting just Washington’s elections. (Even though Facebook says it bans such ads.)
Facebook rarely offers much insight into how its internal systems work, but from the outside the lesson seems to be that it’s much easier for the company to enforce blanket, nationwide policies than varying state-by-state policies.
This, in turn, raises an additional question: If Facebook doesn’t have the “technical ability” to enforce anything beyond a one-size-fits-all, nationwide policy when it comes to political ads, then why isn’t the company making a more forceful push for nationwide political ad regulations?
Such regulations would represent a landmark, one-size-fits-all change to federal law. They seem to be needed, at least based on the unending controversies around online political ads in this country. And theoretically, new regulations could be crafted to include language that preempts state-level regulation of online political ads, so that Facebook wouldn’t find itself, years from now, dealing with a Washington-like problem in all 50 states.
But as I noted in last week’s newsletter, Senator Amy Klobuchar, the sponsor of the most prominent national legislation to regulate online political ads, says she isn’t sure what, if anything, Facebook’s been doing to help her stalled-out Honest Ads Act.
Meanwhile, Facebook has a team of impressive lawyers fighting Washington state’s unique political ad regulations in court. Simultaneously, at the national level, the company has spent much of 2020 enacting—and frequently revising—new forms of self-regulation at a pace that’s proved dizzying to journalists, users, and advertisers.
Perhaps this is actually how the libertarian-leaning Mark Zuckerberg would prefer things?
By keeping state-level ad regulations at bay and standing by as federal ad regulations fail to gain traction, the status quo is effectively preserved. And the status quo, essentially, is no meaningful government regulation of online political ads anywhere in America.
Speaking of Facebook’s troubled ban on Washington state election ads, let’s check in on some of those new, ban-violating ads I showed you back on October 7.
Were these ads taken down by Facebook? Were the campaigns that purchased them prevented from running more ads before Election Day?
No and no.
When I first told you about all the Facebook ads being run by Washington State Supreme Court Justice G. Helen Whitener, her online ad push had cost her campaign about $13,000. To be clear, it’s perfectly legal for Justice Whitener to buy political ads if Facebook, despite officially banning them, is selling them. And with Facebook still selling, the justice’s campaign went right on buying.
Through Election Day, Justice Whitener nearly tripled her Facebook ad spend, laying down close to $36,000 on Facebook ads, according to the company’s ad library. Those ads potentially reached millions of people.
Same situation for two other local candidates in Washington who I’d noticed were running Facebook ads. Joe Zaichkin, a candidate for Pierce County Council, and Dave Petersen, a candidate for a superior court judgeship in Eastern Washington, both increased their Facebook ad spending after October 7 and continued running ads through Election Day. (Though not at the same level as Justice Whitener.)
None of these races turned out to be close. Justice Whitener and Judge Petersen won big. Zaichkin lost big. But they were hardly the only candidates able to buy Facebook ads in Washington state this cycle. More than two dozen other campaigns and committees in Washington reported buying Facebook ads this year, spending tens of thousands of dollars on the ads collectively.
So if you’re wondering whether Facebook, through its ongoing efforts at self-regulation, has been able to create an impermeable ad ban in Washington state two years after launching the ban, the answer, once again, is no.
Perhaps the frustrated Georgia Senate campaigns should take notice of this ad-ban permeability?
While it might not hurt, there’s an important wrinkle to the Washington state situation—one that suggests Facebook may have an easier time making the Georgia ban stick. Once again, it all comes back to the apparent ease, for Facebook, of implementing a nationwide policy rather than a state-by-state policy.
It appears that Facebook’s nationwide ban, which began when the clock struck midnight on October 26, was effective in Washington state in a way that its previous Washington-only ban hasn’t been.
Before October 26, it was easy to find Washington state campaigns using Facebook in violation of the company’s local ban. Facebook’s national ban, which allowed campaigns to run ads through Election Day if they were purchased before October 26, is a different story. Since October 26, I haven’t found any national ban violations in Washington state.
All politics may be local, but for Facebook, it seems, the only working political ad bans are national.
And what of the lawsuit that Washington State Attorney General Bob Ferguson has going against Facebook over the company’s failure to make required disclosures about the supposedly banned ads it’s sold in his state?
A brief update:
In August, four months after Ferguson’s lawsuit was filed, Seattle Judge Douglass A. North rejected Facebook’s request that the case be dismissed. Facebook had argued that its First Amendment rights, along with other rights, were being trampled by Washington state’s “exceedingly burdensome” disclosure regime. Judge North rejected the company’s motion to dismiss, saying a factual record must be developed before any judgments about Facebook’s legal defenses can be made.
Next, Facebook asked Judge North to “bifurcate” the case so that the company’s First Amendment defense could be considered ahead of its other defenses (which include Facebook’s alleged Section 230 immunity from Washington’s disclosure law and Facebook’s contention that the law violates the US Constitution’s Commerce Clause). Judge North denied that request, too, writing on October 19 that “the factual issues relating to the state’s case and Facebook’s First Amendment defense are so intertwined that there is no efficiency to be gained by bifurcation.”
On November 10, Judge North narrowly won reelection—without buying any Facebook ads, as far as the available record shows. His opponent, Carolyn Ladd, an attorney for Boeing, doesn’t appear to have purchased any Facebook ads, either.
Had Ladd won, the case would have landed on the bench of a judge whose most recent job was working for a international corporate giant. With Judge North secure in his seat and still presiding, discovery is now proceeding in the case.
Facebook recently noted that AG Ferguson’s discovery requests are “expansive.” A copy of the “first set of interrogatories” Ferguson sent to Facebook certainly shows that his requests are thorough. They also contain some intriguing demands for political ad data and internal Facebook documents. I’ll share more about those interesting requests in a future newsletter.
Until then, some of the stories I’ve been following this week:
• “Trump Tweets erode trust in elections” — In my last two newsletters, I’ve called attention to academics who argue that the link between online misinformation and voter behavior is overstated (and largely unproven). Here’s a story about some different academics who’ve found real-time, real-world consequences for Trump’s tweets.
• “Breaking the news” — That’s the title for yet another US Senate hearing featuring Mark Zuckerberg and Jack Dorsey. This one’s happening on Tuesday at 10 am Eastern, and this time it’ll be Senator Lindsey Graham’s Judiciary Committee asking the questions. Topics to be covered include: “Censorship, Suppression, and the 2020 Election.”
• “A force for tech companies to reckon with” — Senator Amy Klobuchar’s been noted in the last two newsletters for her push to force greater transparency on tech platforms. CNBC recently noted she’s been “floated” as a possible Attorney General in the Biden administration.
• “A false ad” — ProPublica reports that President Trump’s victory in Florida may have been helped by “a false ad tying Biden to Venezuelan Socialists.” The ad was in Spanish and was viewed on YouTube “more than 100,000 times in Florida in the eight days leading up to the election.”
• Also in Florida — How dark money may have changed the outcome in some state senate races by bankrolling “spoiler” candidates.
• Do you long for a simpler time of Google searching? There’s a browser extension for that.
• What does is take to get booted from Facebook? Apparently this is not enough:
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