To combat this type of interference, Ravel said, the current definition of election advertising needs to be broadened. The FEC, she suggested, should establish “a multifaceted test” to determine whether certain communications should count as election advertisements. For instance, communications could be examined for their intent, and whether they were paid for in a nontraditional way—such as through an automated bot network.
And to help the tech companies find suspect communications, she suggested setting up an enforcement arm similar to the Treasury Department’s Financial Crimes Enforcement Network, known as FinCEN. FinCEN combats money laundering by investigating suspicious account transactions reported by financial institutions. Ravel said that a similar enforcement arm that would work with tech companies would help the FEC.
“The platforms could turn over lots of communications and the investigative agency could then examine them to determine if they are from prohibited sources,” she said.
Make Tech Companies Liable for Objectionable Content
Last year, ProPublica found that Facebook was allowing advertisers to buy discriminatory ads, including ads targeting people who identified themselves as “Jew haters,” and ads for housing and employment that excluded audiences based on race, age, and other protected characteristics under civil-rights laws.
Facebook has claimed that it has immunity against liability for such discrimination under section 230 of the 1996 federal Communications Decency Act, which protects online publishers from liability for third-party content.
“Advertisers, not Facebook, are responsible for both the content of their ads and what targeting criteria to use, if any,” Facebook stated in legal filings in a federal case in California challenging Facebook’s use of racial exclusions in ad targeting.
But sentiment is growing in Washington to interpret the law more narrowly. In February, the House of Representatives passed a bill that carves out an exemption in the law, making websites liable if they aid and abet sex trafficking. Despite fierce opposition by many tech advocates, a version of the bill has already passed the Senate.
And many staunch defenders of the tech industry have started to suggest that more exceptions to section 230 may be needed. In November, one Harvard Law professor, Jonathan Zittrain, wrote an article rethinking his previous support for the law and declared it has become, in effect, “a subsidy” for the tech giants, who don’t bear the costs of ensuring the content they publish is accurate and fair.
“Any honest account must acknowledge the collateral damage it has permitted to be visited upon real people whose reputations, privacy, and dignity have been hurt in ways that defy redress,” Zittrain wrote.
In a December 2017 paper titled “The Internet Will Not Break: Denying Bad Samaritans § 230 Immunity,” two University of Maryland law professors, Danielle Citron and Benjamin Wittes, argue that the law should be amended—either through legislation or judicial interpretation—to deny immunity to technology companies that enable and host illegal content.