NewCo Shift
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NewCo Shift

Can We Legislate Political Speech Online?

Policymakers from both sides of the aisle are looking into it. But how would it work?


Last Wednesday I described the tech industry as “curled around a bottle of gin,” and since then, things have only gotten worse. Facebook has since been served with a warrant (as I’ve written for months, its data centers were always destined to be the center of Mueller’s investigation), and the press smells blood in the water.

Now Congress is officially looking at legislation to curb political advertising on the Internet, Axios reports. But as much as lawmakers may want to snap their fingers and transform the graywaters of the web into transparent, well lit town squares, translating FEC regulations from offline media to the complexities of platforms like Facebook, Twitter, and Google is going to require deft policymaking. And given our current administration was arguably put in place by a lack of such regulation, let’s just say it’s going to be quite a lift to get anything done. Here’s why:

  • Current FEC rules governing offline media are narrow by design. They focus only on specific campaign time periods, and specific candidates or registered lobbying organizations. The ads which ran on Facebook (and most certainly other platforms) skirted these rules by focusing on issues (Build the Wall!) and fake news or opinion stories built to go viral.
  • Expensive and Open vs. Cheap and Hidden. Offline media had another important natural constraint: It is expensive, and it is broadcast in nature, easily seen by all. That meant third party players (like the shadowy Russian organizations identified by Facebook earlier this month) would have to spend a lot of money to meaningfully impact the election, and they’d have to do it out in the open, raising questions of origin and intent. On platforms like Facebook, you can have massive impact with minimal dollars, and you can target your ads to very specific audiences with total anonymity. What happened online during the election of 2016 simply has no allegory in offline media, or its regulatory framework.
  • What’s Political Speech Anyway? (The First Amendment). Forcing tech companies to police political speech on their platforms re-opens some of our society’s most contentious policy questions, some of which have been mostly “settled” for decades. As I also wrote last week, the 1996 Communications Decency Act specifically excludes platforms from liability with regard to speech on their systems, political or otherwise. If we wanted to force all political advertising to be disclosed, we’d have to first identify what speech is in fact political, and whether it actually intends to influence an election. Citizens United v. Federal Election Commission, a landmark Supreme Court case, extends First Amendment rights to corporations, who certainly have any number of political opinions they’d like to express. Ask yourself, what’s “political” anyway? What if Fed Ex wants to make the case for open borders, or Walmart wants to lobby against (or for) an increased federal minimum wage? Would these ads be subject to disclosure (they wouldn’t if they were on TV, FWIW)?
  • Privacy and Secrecy. As I pointed out in my rather overlong piece last Friday, the new reality (and economics) of online advertising is posited on insanely precise targeting, and that kind of targeting has created a complex ecosystem of iterative campaigns that demand secrecy (in other words, the opposite of disclosure and transparency). Ever looking for a market opening, advertisers on Facebook or Google routinely run hundreds of tests aimed at tiny segments of audience members, with highly sensitive offers and messaging. If new regulations forced those companies to disclose their campaigns, one could reasonably argue the privacy of the advertisers (and their targets) would be compromised. Put another way, the entire model of our current internet would be upended. There is in fact an economic benefit to opacity, as one long time policy source recently put it to me. The question is, does it outweigh our society’s right to know who is trying to influence us?

I think longtime readers will know how I come down on these questions. Sure, regulating political advertising on the internet is complex, even arduous. But to my mind there’s simply not an excuse for our lawmakers to put our right to know ahead of the clear and present danger our system of democracy faces from the unregulated nature of our current communications infrastructure. Hard work? Sure. But not impossible, and far too important to ignore.

Meanwhile, Russia Leverages the First Amendment To Win the InfoWars

“But RT and Sputnik operate on the stated terms of Western liberal democracy; they count themselves as news organizations, protected by the First Amendment and the libertarian ethos of the internet.”

The Times goes deep in a profile of RT, the “Russian CNN” behind many a dust up in the ongoing information wars between western democracy and whatever it Russia calls its current ideology. While the profile focuses on RT’s broadcast platform, what I found fascinating is how little RT cares about ratings. What’s most important is that RT is considered a “journalistic operation” by most western distribution outlets — and it’s that mantle that gives it cover to conduct sophisticated propaganda operations.

And Big Food Gets Called Out For Embracing Growth Over Public Health

“What we have is a war between two food systems, a traditional diet of real food once produced by the farmers around you and the producers of ultra-processed food designed to be over-consumed and which in some cases are addictive.”

Time and time again, this publication urges businesses large and small to put their customers and community before profits and Wall St. Sometimes it’s easier to simply give you yet another example of fine reporting that delivers that message through story telling and fact. Here’s the New York Times again, this time on how global processed food companies have massively shifted their focus toward developing countries, sparking a global health crisis along the way. Entire economies and ways of life have been transformed as a result — once undernourished populations now suffer from obesity epidemics and related disease like Type 2 Diabetes. It’s a depressing narrative. And if the Nestlés, Unilevers, and PepsiCos of the world want to change it, they will have to buck Wall St. to do so. Four million premature deaths and counting demand that they do.



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