News is constantly streaming out these days about the role of Facebook, Twitter, and Google in the 2016 presidential election; most disturbing to the public is the apparent use of social media, search, and video channels by Russian operatives seeking to influence U.S. voters.
Critical lawmakers have blasted the big tech companies for failing to detect the Russian influence campaign earlier, for allegedly accepting payments for election ads in rubles, and for allowing a troll farm in St. Petersburg to flood their communications platforms with fake and divisive messages.
But was anything they did against the law?
Lawyers for the big three tech companies may address some of those questions when they appear before the Senate and House intelligence committees at hearings slated for this week. In prepared remarks obtained by the New York Times in advance of the hearings, Facebook said Russia-backed messages, intended to rile up Americans, had reached 126 million users. It’s all happening just as the first indictments are coming to light from the investigation of special counsel Robert Mueller into Russian involvement in the 2016 election—and any possible ties to the Trump campaign.
Tech companies have reacted to the uproar about their role in the 2016 election in two ways. They’ve announced some voluntary efforts to prevent election interference and reduce fake news, which may preserve the loyalty of users as well as help persuade Congress that new laws aren’t needed. The big Silicon Valley companies have also mounted a beefed-up lobbying drive to stave off increased regulation, according to the New York Times and other news outlets.
To provide some perspective on the fray, Xconomy asked election law experts to weigh in on whether the tech giants might already face some legal jeopardy, and to identify gaps in the law that Congress might be tempted to fill.
The question of legal liability is harder to answer when it comes to online companies than it would be for TV networks, newspapers, telecom companies, or other traditional communications organizations, says Ian Vandewalker, senior counsel for the Democracy Program at New York University’s Brennan Center for Justice. The Internet has given rise to business models never contemplated when key federal election statutes were drawn up decades ago, he says.
Vandewalker and other experts say some tech companies may have veered into unlawful territory during the 2016 campaign, even though they may not have been aware of it. But other actions, while very troubling to the companies’ critics, may be completely legal under federal election law, they say.
The Federal Election Campaign Act (FECA) dates back to 1971, before the Internet existed, Vandewalker says. Even in 2002, when amendments were added to the law with the passage of the McCain-Feingold Act, neither Facebook nor Twitter had yet been founded, while Google was still a four-year-old startup.
U.S. election law focuses primarily on financial transactions, such as campaign contributions and expenditures on advertising. But these days, a vast amount of communication via social media platforms is sent free of charge, and that makes its standing much murkier under the law.
Federal election law “is just not really set up to deal with the Internet,” Vandewalker says.
One clearly illegal scenario
Campaign law experts agree that an ad-hosting company such as Facebook could be in trouble under federal elections law if the following precise scenario had played out: the company sells an election ad mentioning a candidate for office to a buyer that the company knew to be a foreign citizen, government, company, or other foreign entity.
All such “foreign nationals” are forbidden under federal elections law to make election-related expenditures and campaign donations. The law also forbids political campaigns to solicit or accept contributions or substantial support from foreigners. That constraint applies as well to companies in the United States, says Adav Noti, senior director of trial litigation and strategy at the Campaign Legal Center in Washington, DC.
For example, a U.S. company must refuse to sell to foreign nationals any ads, goods, or services intended to influence an election, Noti says. That applies to any U.S. election—federal, state, or local, he says.
If companies, or campaign organizations, are not sure whether a buyer or donor is a foreign entity, they can set the money aside while they find out, so they can return it if necessary. They’re not required to demand passports from everyone they work with, Noti says. But they should investigate if they see signs of foreign involvement, such as a donation check or a bill paid in a foreign currency, he says.
Noti says that suspicion could have arisen for Facebook. The company reportedly accepted payment in rubles for some ads during the 2016 campaign, Sen. Mark Warner (D-VA), vice chairman of the Senate intelligence committee that is investigating Russian election interference, claimed in a tweet in September.
“There is no bigger tip-off that this is a foreign national than that,” Noti says. “Facebook may have potential liability there.”
Other tip-offs to foreign involvement, according to the Federal Elections Commission, include the following: the donor or ad buyer provides a foreign address, makes a contribution from a foreign bank, uses a foreign passport, or lives abroad.
But there’s potential wiggle room here for U.S. companies. An ad purchased
