Elect to Regulate: Regulating Social Media Companies in The Wake of An Election Advertising Crisis

By Genevieve Bresnahan

In the wake of Facebook’s admission that at least 3,000 advertisements at an estimated cost of $150,000 had been placed by a Russian agency during the 2016 presidential election, social media companies now face increased scrutiny over how ads are placed and whether the federal government should more tightly regulate that process.[1] Social media companies, a still relatively new phenomenon in the business community, have the benefit of definitional ambiguity. Neither traditional media nor public utility by definition, these companies largely avoid regulatory oversight from agencies like Federal Communications Commission (FCC). But following the 2016 presidential election, Congress may try to change that.

Two weeks ago, Congressional Democrats sent a letter to the Federal Election Commission (FEC) asking them to set new guidelines for how online advertising platforms like social media companies can prevent foreign spending in US elections.[2] Additionally, Democratic Senators Mark Warner (D-VA) – also the Democratic head of the Senate Intelligence Committee) – and Amy Klobuchar (D-MN) are circulating a letter seeking support from their colleagues on proposed legislation that would require these platforms to disclose more information about the source of political ads they feature.[3] This disclosure is important, they argue, because social media platforms have many more users than broadcasting companies but they are not subject to the same level of regulation.[4]

While Facebook CEO Mark Zuckerberg has pledged to update rules requiring disclosure of the ads, these rules will be internally developed and leave room for Zuckerberg to be selective.[5] Social media companies like Facebook operate business models based on advertising dollars and, unlike traditional media, these companies also have a trove of personal information about their users. As the role Facebook and other social media companies play in our everyday lives and in our elections continues to develop and change, the way the federal government treats these companies too must develop and change. However, over-regulation of social media companies may stifle innovation and infringe upon the Constitutional guarantee of freedom of speech.[6] While its users may operate social media sites as platforms for communication, these sites are some of the world’s largest advertising companies. Facebook itself is the world’s second-largest online advertising company, behind Google.[7] The U.S. regulatory framework must catch up to the operational realities of our social media platforms by, at a minimum, imposing disclosure requirements in order to increase transparency for its users.

[1] Laura Sydell, Facebook Faces Increasing Scrutiny Over Election-Related Russian Ads, NPR, (Sept. 26, 2017), http://www.npr.org/sections/alltechconsidered/2017/09/26/553827241/facebook-faces-increasing-scrutiny-over-election-related-russian-ads?utm_source=npr_newsletter&utm_medium=email&utm_content=20170927&utm_campaign=Business&utm_term=nprnews.

[2] Dylan Byers, After Russian Facebook Ads, Democrats Seek New FEC Rules On Social Media politics, CNN, (Sept. 20, 2017), http://money.cnn.com/2017/09/19/media/congress-facebook-fec/index.html.

[3] Nancy Scola et al., Facebook’s Cooperation on Russian Ads Doesn’t Stop Democrats’ Demands, Politico, (Sept. 21, 2017), http://www.politico.com/story/2017/09/21/facebook-to-release-russian-purchased-ads-linked-to-2016-election-242982.

[4] Id.

[5] Kai Ryssdall, 09/26/2017: How To Get Aid To An Island, Marketplace, (Sept. 26, 2017), https://www.marketplace.org/shows/marketplace/09262017.

[6] See generally Liverman v. Petersburg, 844 F.3d 400 (4th Cir. 2016) (holding that police department policy regulating social media posts violated the First Amendment’s Free Speech Clause).

[7] Adam Entous et al., Obama Tried To Give Zuckerberg A Wake-up Call Over Fake News On Facebook, Wash. Post, (Sept. 24, 2017), https://www.washingtonpost.com/business/economy/obama-tried-to-give-zuckerberg-a-wake-up-call-over-fake-news-on-facebook/2017/09/24/15d19b12-ddac-4ad5-ac6e-ef909e1c1284_story.html?utm_term=.9a65762b1572.

 

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