Sec. 6103. Findings
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Congress makes the following findings: In 2002, the Bipartisan Campaign Reform Act of 2002 ( Public Law 107–155 ) became law, establishing disclosure requirements for political advertisements distributed from a television or radio broadcast station or provider of cable or satellite television. In 2003, the Supreme Court upheld regulations on electioneering communications established under the Act, noting that such requirements provide the electorate with information and insure that the voters are fully informed about the person or group who is speaking.
The Court reaffirmed this conclusion in 2010 by an 8–1 vote. In its 2006 rulemaking, the Federal Election Commission, the independent Federal agency charged with protecting the integrity of the Federal campaign finance process, noted that 18 percent of all Americans cited the internet as their leading source of news about the 2004 Presidential election. By contrast, Gallup and the Knight Foundation found in 2020 that the majority of Americans, 58 percent, got most of their news about elections online.
According to a study from Borrell Associates, in 2016, $1,415,000,000 was spent on online advertising, more than quadruple the amount in 2012. Effective and complete transparency for voters must include information about the true and original source of money given, transferred, and spent on political advertisements made online. Requiring the disclosure of this information is a necessary and narrowly tailored means to inform the voting public of who is behind digital advertising disseminated to influence their votes and to enable the Federal Election Commission and the Department of Justice to detect and prosecute illegal foreign spending on local, State, and Federal elections and other campaign finance violations.
Paid advertising on large online platforms is different from advertising placed on other common media in terms of the comparatively low cost of reaching large numbers of people, the availability of sophisticated microtargeting, and the ease with which online advertisers, particularly those located outside the United States, can evade disclosure requirements. Requiring large online platforms to maintain public files of information about the online political ads they disseminate is the best and least restrictive means to ensure the voting public has complete information about who is trying to influence their votes and to aid enforcement of other laws, including the prohibition on foreign money in domestic campaigns.
The reach of a few large internet platforms—larger than any broadcast, satellite, or cable provider—has greatly facilitated the scope and effectiveness of disinformation campaigns. For instance, the largest platform has over 210,000,000 American users—over 160,000,000 of them on a daily basis. By contrast, the largest cable television provider has 22,430,000 subscribers, while the largest satellite television provider has 21,000,000 subscribers. And the most-watched television broadcast in United States history had 118,000,000 viewers.
The public nature of broadcast television, radio, and satellite ensures a level of publicity for any political advertisement. These communications are accessible to the press, fact-checkers, and political opponents. This creates strong disincentives for a candidate to disseminate materially false, inflammatory, or contradictory messages to the public. Social media platforms, in contrast, can target portions of the electorate with direct, ephemeral advertisements often on the basis of private information the platform has on individuals, enabling political advertisements that are contradictory, racially or socially inflammatory, or materially false.
According to comscore, 2 companies own 8 of the 10 most popular smart phone applications as of June 2017, including the most popular social media and email services which deliver information and news to users without requiring proactivity by the user. Those same 2 companies accounted for 99 percent of revenue growth from digital advertising in 2016, including 77 percent of gross spending. 79 percent of online Americans—representing 68 percent of all Americans—use the single largest social network, while 66 percent of these users are most likely to get their news from that site.
Large social media platforms are the only entities in possession of certain key data related to paid online ads, including the exact audience targeted by those ads and their number of impressions. Such information, which cannot be reliably disclosed by the purchasers of ads, is extremely useful for informing the electorate, guarding against corruption, and aiding in the enforcement of existing campaign finance regulations. Paid advertisements on social media platforms have served as critical tools for foreign online influence campaigns—even those that rely on large amounts of unpaid content—because such ads allow foreign actors to test the effectiveness of different messages, expose their messages to audiences who have not sought out such content, and recruit audiences for future campaigns and posts.
In testimony before the Senate Select Committee on Intelligence titled, Disinformation: A Primer in Russian Active Measures and Influence Campaigns , multiple expert witnesses testified that while the disinformation tactics of foreign adversaries have not necessarily changed, social media services now provide platform[s] practically purpose-built for active measures[.] Similarly, as Gen. Keith B. Alexander (RET.), the former Director of the National Security Agency, testified, during the Cold War if the Soviet Union sought to manipulate information flow, it would have to do so principally through its own propaganda outlets or through active measures that would generate specific news: planting of leaflets, inciting of violence, creation of other false materials and narratives.
But the news itself was hard to manipulate because it would have required actual control of the organs of media, which took long-term efforts to penetrate. Today, however, because the clear majority of the information on social media sites is uncurated and there is a rapid proliferation of information sources and other sites that can reinforce information, there is an increasing likelihood that the information available to average consumers may be inaccurate (whether intentionally or otherwise) and may be more easily manipulable than in prior eras. .
On November 24, 2016, The Washington Post reported findings from 2 teams of independent researchers that concluded Russians exploited American-made technology platforms to attack U.S. democracy at a particularly vulnerable moment *** as part of a broadly effective strategy of sowing distrust in U.S. democracy and its leaders. . On January 6, 2017, the Office of the Director of National Intelligence published a report titled Assessing Russian Activities and Intentions in Recent U.S.
Elections , noting that Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election * * * . Moscow’s influence campaign followed a Russian messaging strategy that blends covert intelligence operation—such as cyber activity—with overt efforts by Russian Government agencies, state-funded media, third-party intermediaries, and paid social media users or trolls . On September 6, 2017, the nation’s largest social media platform disclosed that between June 2015 and May 2017, Russian entities purchased $100,000 in political advertisements, publishing roughly 3,000 ads linked to fake accounts associated with the Internet Research Agency, a pro-Kremlin organization.
According to the company, the ads purchased focused on amplifying divisive social and political messages *** . Findings from a 2017 study on the manipulation of public opinion through social media conducted by the Computational Propaganda Research Project at the Oxford Internet Institute found that the Kremlin is using pro-Russian bots to manipulate public discourse to a highly targeted audience. With a sample of nearly 1,300,000 tweets, researchers found that in the 2016 election’s 3 decisive States, propaganda constituted 40 percent of the sampled election-related tweets that went to Pennsylvanians, 34 percent to Michigan voters, and 30 percent to those in Wisconsin.
In other swing States, the figure reached 42 percent in Missouri, 41 percent in Florida, 40 percent in North Carolina, 38 percent in Colorado, and 35 percent in Ohio. 2018 reporting by the Washington Post estimated that paid Russian ads received more than 37,000,000 impressions in 2016 and 2017. A 2019 Senate Select Committee on Intelligence’s Report on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election Volume 2: Russia’s Use of Social Media with Additional Views, the Committee recommended that Congress examine legislative approaches to ensuring Americans know the sources of online political advertisements.
The Federal Election Campaign Act of 1971 requires political advertisements on television, radio and satellite to disclose the sponsor of the advertisement. The same requirements should apply online. This will also help to ensure that the IRA or any similarly situated actors cannot use paid advertisements for purposes of foreign interference. . A 2020 study by researchers at New York University found undisclosed political advertisement purchases on a large social media platform by a Chinese state media company in violation of that platform’s supposed prohibitions on foreign spending on ads of social, national, or electoral importance.
The same study also found that there are persistent issues with advertisers failing to disclose political ads and that in one social media platform’s political ad archive, 68,879 pages (54.6 percent of pages with political ads included in the archive) never provided a disclosure. Overall, there were 357,099 ads run on that platforms without a disclosure, accounting for at least $37,000,000 in spending on political ads. A 2020 report by the bipartisan and bicameral U.S. Cyberspace Solarium Commission found that Although foreign nationals are banned from contributing to U.S. political campaigns, they are still allowed to purchase U.S. political advertisements online, making the internet a fertile environment for conducting a malign influence campaign to undermine American elections.
The Commission concluded that Russian interference in the 2016 election was and still is possible, because the FECA, which establishes rules for transparency in television, radio, and print media political advertising, has not been amended to extend the same political advertising requirements to internet platforms, and that [a]pplying these standards across all media of communication would, among other things, increase transparency of funding for political advertisements, which would in turn strengthen regulators’ ability to reduce improper foreign influence in our elections.
On March 16, 2021, the Office of the Director of National Intelligence released the declassified Intelligence Community assessment of foreign threats to the 2020 U.S. Federal elections. The declassified report found: Throughout the election cycle, Russia’s online influence actors sought to affect U.S. public perceptions of the candidates, as well as advance Moscow’s longstanding goals of undermining confidence in US election processes and increasing sociopolitical divisions among the American people.
The report also determined that Iran sought to influence the election by creating and amplifying social media content that criticized [candidates]. According to a Wall Street Journal report in April 2021, voluntary ad libraries operated by major platforms rely on foreign governments to self-report political ad purchases. These ad-buys, including those diminishing major human rights violations like the Uighur genocide, are under-reported by foreign government purchasers, with no substantial oversight or repercussions from the platforms.
Multiple reports have indicated that online ads have become a key vector for strategic influence by the People’s Republic of China. An April 2021 Wall Street Journal report noted that the Chinese government and Chinese state-owned enterprises are major purchasers of ads on the U.S.’s largest social media platform, including to advance Chinese propaganda. Large online platforms have made changes to their policies intended to make it harder for foreign actors to purchase political ads.
However, these private actions have not been taken by all platforms, have not been reliably enforced, and are subject to immediate change at the discretion of the platforms. The Federal Election Commission has failed to take action to address online political advertisements and current regulations on political advertisements do not provide sufficient transparency to uphold the public’s right to be fully informed about political advertisements made online.
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- Pub. L. 107-155
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Sec. 6103
Findings
Pub. L.Pub. L. 107-155
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