Maybe Congress should reform election laws too, rather than just grilling technologists.

There are existing laws about advertising but the pace and revenue flows of online ads make it nearly impossible to enforce unless the technology industry deploys advanced technology like machine learning to catch itself and reduce revenue flows.

As our earnest representatives looked worried and walked fast through the halls of congress during the Facebook hearing, I decided to investigate what election laws protecting citizens from false claims because I assumed it would be similar to laws protecting consumers from false advertising. My conclusion is that inside the beltway, there has been a blind eye turned toward laws regulating internet and micro-targeted elections communications that benefited Cambridge Analytica and perhaps all mudslinging politicians.

First the consumer case is clear. As the FTC website says “When consumers see or hear an advertisement, whether it’s on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence. The Federal Trade Commission enforces these truth-in-advertising laws, and it applies the same standards no matter where an ad appears — in newspapers and magazines, online, in the mail, or on billboards or buses.” Though one can dispute how well this is enforced and how motivated the mammoth online advertisers are to ensure ease of enforcement the law is in effect.

When I started to write this article the premise was shouldn’t we just enforce Federal Laws related to false claims in election communications. Boy or boy was I surprised. Though there are laws in a number of states that regulate false claims made in online advertising, the Federal Election Commission is clear — communications over the Internet are excluded except when placed for a fee on another persons website. Therefore Troll factory “memes” or other divisive propaganda placed on websites (not for a fee) then advertised are not illegal public political advertising. (I am not a lawyer nor do I play one on T.V.)

Except for communication “placed for a fee on another person’s Web site” “public political advertising shall not include communications over the Internet”

Then for mass mailings, which one might think might apply to e-mail or social media, the answer is the same, nada protection.

A mass mailing does not include electronic or Internet communications.

More note that even if Internet Communications and e-mail were included, there is a 500 piece threshold. With all the discussion of micro-targeting recently and the inherent technical feasibility of mass-customization of messages, it is technically trivial to stay below this limit.

I was somewhat shocked when I did basic research to realize that despite the hew and cry from Congress about Facebook’s privacy practices that it seems that there are limited Federal election laws that prohibit the type political advertising and propaganda allegedly deployed by Cambridge Analytica and the Troll Farm.

Guess I would have expected that since the late 1990’s, when we started discussing the Internet relative to electioneering, we would have come a bit further. But is my shock simply a sign that I have not been engaged enough as a citizen?




Am opinionated and often wrong. Writing in a Celtic tradition where stories are the threads that tie together people across time and space.

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John Gilda

John Gilda

Am opinionated and often wrong. Writing in a Celtic tradition where stories are the threads that tie together people across time and space.

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