Georgetown Law
Technology Review

On March 14, 2018, the Federal Election Commission (FEC, or Commission) issued a Notice of Proposed Rulemaking (NPRM) and released two alternative proposals that would amend its disclosure requirements for online political advertisements. Both proposals would require advertisers to disclose the sponsors for public communications on the internet that “contain express advocacy, solicit contributions, or are made by political committees,”1Internet Communication Disclaimers and Definition of ‘‘Public Communication,” 83 Fed. Reg. 12864 (proposed Mar. 26, 2018) (to be codified at 11 C.F.R. pt. 100, 110). but they differ on how much information the “internet communication disclaimers”2See, id. must provide. If the four commissioners could get consensus on making new regulations, it will be the Commission’s first update of the internet disclaimer rules since 2006.3Seeid.

The online political ads disclosure requirements in current 2006-era regulations have become ambiguous in light of the rapid technological changes and the increased use of online communications for political advertising within the last decade. The rules do not explicitly require sponsor-disclosures for communications distributed on smartphones and through social media. The 2006 rule was established at a time when bloggers were the major concern creating the need for requiring disclosures on online political advertisements.4Internet Communications, 71 Fed. Reg. 18589 (proposed Apr. 12, 2006) (11 C.F.R. pt. 100, 110, 114) The rules and previous Commission Advisory Opinions also left open the question whether small and short online ad programs could qualify under the existing exceptions for disclaimer requirements.5See Advisory Opinion 2010-19, Federal Election Commission, https://www.fec.gov/files/legal/aos/76087.pdf (concerning Google 95 text characters Adwords program); Advisory Opinion Request 2011-09, Federal Election Commission, https://www.fec.gov/updates/aor-2011-09-facebook/ (concerning Facebook 160 text character ads).

Though the Commission has spent years debating regulating online ads on internet platforms, it has been unable to reach a consensus, and the idea has also been resisted by the online platforms.6See Colin Lecher, How Facebook Fought to Keep Political Ads in the Shadows, VERGE (Sept. 25, 2017, 2:04 pm), https://www.theverge.com/2017/9/25/16360674/facebook-political-ads-regulation-fec. However, after reports of foreign interference through social media during the 2016 election, the Commission and its rules on political ads disclosure received significant attention. The Commission received nearly 150,000 public comment submissions in support of updating or strengthening the disclaimer rules. Commissioner Ellen Weintraub has mentioned after the public hearing on March 8 that the massive number of comments motivated the Commission to take this step.7See Federal Election Commission, March 8, 2018 Open Meeting, (Mar. 8, 2018), https://www.fec.gov/updates/march-8-2018-open-meeting/.

It appears that because the FEC commissioners were still unable to reach bipartisan agreement on a single approach, the NPRM provided two alternatives treating online political ads in different ways. Alternative A proposed to extend current rules for radio, TV, and print communications to online audio, video, text, and graphic components. Accordingly, there will be “stand by your ad” requirements8The “Stand By Your Ad” requirement originates from the Bipartisan Campaign Reform Act (BCRA), which enacted in 2002, requiring candidates for federal positions to identify themselves and state that they have approved the communication for advertisements that are authorized by the candidate or the candidate’s committee. For advertisements that are not authorized by the candidate or the candidate’s committee, the authorizer must include an audio statement stating that he or she or the committee are responsible for the content of the advertising. See Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, § 311, 116 Stat. 81, 105-06 (2002). for online audio or video communications, which currently applies to radio and TV broadcast communications.

Alternative B, on the other hand, treats internet advertisements fundamentally different from ads in traditional media, and proposes to apply general disclosure requirements for online communications. For alternative B, internet advertisements will meet the disclosure requirements by satisfying the “general requirement,”9See 11 CFR §110.11 (b) (requiring “paid for by” and “authorized/or not authorized by” disclaimer information). and no “stand by your ad” would be required for online communications.

The two proposals also introduced a new “adapted disclaimer,” which would be an abbreviated disclaimer on the face of the communication in conjunction with a technological mechanism that leads to a full disclaimer. Alternative A permits an adapted disclaimer with the ad purchaser’s name and an indicator leading to a full disclosure for text or graphic communications online only when the full required disclaimer cannot fit on the face of the communication “due to external character or space constraints” that are “intrinsic to the technological medium.” 10Internet Communication Disclaimers and Definition of ‘‘Public Communication,” 83 Fed. Reg. 12864, 12874 (proposed Mar. 26, 2018) (to be codified at 11 C.F.R. pt. 100, 110). Alternative B will allow adapted disclaimers in broader circumstances: when the full disclaimer would exceed ten percent of the overall time or space of a communication—including communications with an audio or video component.11Id. at 12875.  Also under alternative B, certain digital ads could satisfy the requirement with a hyperlink to another landing page containing the disclaimers.12Id. at 12878-80.

One thing both proposals suggest modifying is the definition of “public communication” under the regulation. The regulatory term of art would include “internet-enabled device or application,” which would clarify that YouTube app videos would also be subject to the same Commission rules as YouTube videos online.13Id. at 12864-65.

The scope of this rulemaking is narrow and many concerns about fake news and its impact on U.S. democracy will not be solved even if the four commissioners reach a consensus. The communications covered by the rules are limited to “express advocacy” and “communications placed for a fee,” and this will leave broader abuses unaddressed. Nonetheless, as Commissioner Weintraub phrased, this could be “a step in the right direction.”14See Megan Janetsky, FEC Proposes New Rules for Digital Ads Disclosures, OPENSECRETS (Mar. 15, 2018), https://www.opensecrets.org/news/2018/03/new-fec-new-rules-for-digital-ads/.