by a foreign actor is only illegal if it’s related to an election. That would clearly apply if an ad mentions a candidate. However, when a foreigner buys an ad that more generally addresses political or cultural issues, it might be permissible under federal elections law.
That’s because foreign actors, while within the United States, have the right to express themselves on policy issues, as long as they’re not trying to affect an election outcome. Some ads traced to Russian buyers during the 2016 campaign reportedly focused on issues, such as immigration, rather than candidates and the voting process. Conceivably, these would be legal.
However, Noti says, a prosecutor could argue that these ads were still out of bounds under federal election law, because they were intended to inflame the passions of potential voters, and tilt them toward voting for Trump or another candidate.
But should a company such as Facebook be required to make such distinctions, and try to guess the intentions of its advertising customers?
“That’s a genuine difficulty for them,” Vandewalker says. “There’s a tricky sort of drawing-the-line problem.”
One other question may arise for lawmakers and the public—could Facebook, Twitter, and other tech companies be in legal jeopardy if they didn’t alert the government about attempts by foreigners to influence U.S. elections, whether the companies refused to sell ads to them or not?
Interestingly, nothing in the Federal Election Campaign Act seems to require campaigns to inform the government if a foreign actor offers a donation, both Noti and Vandewalker say; neither are U.S. vendors such as media companies required to tell the Federal Elections Commission, the FBI, or another government agency if a foreign actor tries to buy ads or other goods as part of an effort to affect a U.S. election.
But a company—and some of its employees—could face criminal prosecution if they knew that foreign actors were violating U.S. election law, and helped them to do it, according to Renato Mariotti, a former federal prosecutor who is now a Chicago-based partner at the law firm Thompson Coburn. Mariotti has been providing legal analysis of the Russian election interference probes through Twitter threads and media commentary, and recently announced he’s running to become Attorney General of Illinois.
Facebook’s disclosures about Russian-backed ads
Facebook CEO Mark Zuckerberg originally discounted the idea that manipulation of his company’s platform with fake news could have substantially influenced the 2016 election campaign. But after being pressed by congressional investigators, Facebook announced on Sept. 6 that an internal probe turned up at least $100,000 in ad spending and around 3,000 ads traced to fake Facebook accounts “affiliated with one another and likely operated out of Russia.” The company says it is now sharing those ads with Congress as well as Mueller’s investigation.
In September, Facebook said “the vast majority” of the ads didn’t mention the presidential election, voting, or a particular candidate. “Rather, the ads and accounts appeared to focus on amplifying divisive social and political messages across the ideological spectrum—touching on topics from LGBT matters to race issues to immigration to gun rights.”
But a small number of the ads included the names of Republican candidate Donald Trump and Democratic Party candidate Hillary Clinton, the Washington Post reported.
Mariotti says that special counsel Robert Mueller must have turned up evidence that foreign nationals had committed crimes in their use of Facebook, because Mueller was able to persuade a judge to approve the search warrant that required Facebook to turn over reams of data about election-related ads. But that doesn’t amount to evidence that Facebook did anything wrong, Mariotti says.
“Just because a crime is committed on a communications platform does *not* mean the communications platform is criminally liable,” Mariotti wrote in a series of tweets in September. “But what if someone at Facebook knew what was going on?”
“The short answer is that Facebook employees are like anyone else. If they knew that a crime was being committed and helped the crime succeed in some tangible way, then they have criminal liability,” Mariotti wrote.
Mariotti says such knowing U.S. participants could be charged with aiding and abetting a crime, or with joining in a criminal conspiracy. (The term “collusion” is often used in discussions of possible election campaign conspiracies between Russian actors and Americans.) Federal prosecutors are less likely to charge a corporation, such as Facebook, if the company is cooperating with an investigation of the actions of its officers and employees, Mariotti says.
Merely having access to the database that contained evidence of foreign election meddling would not make a Facebook employee culpable, Mariotti says. The staffer or executive would need to have actually known about the criminal activity to be liable, he says. That raises several more questions—are there employees at Facebook who would have been in a position to know, and is Mueller trying to find out and interview them?
If so, Facebook might be pulled further into the heart of Mueller’s probe into the Trump campaign’s possible collaboration with Russians. First, internal Facebook employees might have made in-house observations about such things as ad payments in foreign currency, or about similarities in the content or targeting techniques of Trump ads and foreign ads or messages. Such employees could become witnesses for Mueller, even if they committed no wrongdoing.
Second, both Facebook and Twitter sent staffers to help the Trump campaign with its ad-targeting efforts on their platforms. That’s according to
