What do new state laws on political digital ads mean for you?
Political Digital Ads: No GDPR but a Growing Variety of State Laws
Election meddling has made national news starting with the General Data Protection Regulation (GDPR), which took effect in Europe this summer. In response, many folks in the states took a look at their own privacy policies and laws surrounding political digital ads to see what they could do better to be more transparent. Companies like Google and Facebook created their own policies to verify users and target who was actually paying for political digital ads. Lawmakers in states across the country also started to pass laws to push for more transparency.
In the end, this is all and all a good thing. However, the current hodgepodge of regulations in the United States has left companies, campaigns, organizations, and agencies in the world of digital political advertising with some hurdles to jump through to meet shifting compliance rules.
Facebook created user verification and transparency in the middle of the primary season. As a result, anyone who creates or serves political digital ads on Facebook in the United States has to be verified as a U.S. resident. In addition, every Facebook page attached to political ads is now required to have a disclaimer. Facebook also launched a first-of-its-kind database that allows you to see what political ads are running on Facebook.
Depending on where you get your Facebook platform updates, in some cases, it was only posted within a few days notice. Some campaigns were able to get verified in plenty of time, while others were left scrambling and waiting for their verification letters in the mail, which could take up to 10 days according to Facebook’s guide on the process. Many advertisers were also unhappy with the personal data Facebook required them to provide as proof of residence, especially with Facebook’s spotty track record on protecting private information such as a social security number.
Google took another approach. Instead of verifying individual people, their process focused on the organizations paying for the ads. Moving forward, all organizations must provide their valid Federal Election Commission ID or Federal Employer Identification Number, as well as the full name of the authorized representative and their email address, the organization’s name, and the organization’s address. All of the information provided must exactly match the information on the FEC or EIN registration. Google has also recently launched a database where you can see what political ads are being run through its various platforms.
New state laws
Washington and Maryland were the first states to pass legislation on political digital ads. Other states soon followed, but each state’s laws have different requirements and have resulted in different responses from advertising platforms. For example, due to the way Maryland’s law is written, advertisers like Pandora and Google are not currently running any political ads in that state.
What should a campaign do? Talk to your attorney. Ask how you and they need to comply with local laws and help you keep an eye on new laws as they are proposed and pass. Make sure you and your team think through how this affects your digital ad options.
A new campaign finance law in Maryland makes advertising challenging for programmatic platforms. In Maryland, there are now extensive rules on the records that an online platform—defined as a social network, an ad network, or search engine that has 100,000 or more monthly US visitors—must collect and keep track of organizations placing ads. These requirements were passed in the “Online Electioneering Transparency and Accountability Act” effective July 2018.
Unique to Maryland is also the requirement that—if the online platform does not collect this information—the committee, organization, or even the vendor requesting placement of the ad has the responsibility to notify the State Board of Elections and to provide the information directly to the Board’s staff.
With thousands of sites on programmatic networks like Google, it’s easy to see how this could get complicated. It seems pretty likely that a lot of advertisers will stick to site-direct buys on a few select websites in Maryland.
The law in Washington focuses specifically on disclosure and getting campaigns and organizations to be clear about their expenditures. For example, how much is being spent on who and when the political digital ads ran. Vendors or persons that sell the service of communicating political messages or producing printed material to the public are required to keep detailed records about the ads and the services that they provide, including targeting and other statistical information. These records must be open for public inspection to any person.
California has focused more towards digital privacy with a bill that has been called GDPR light, but the state is moving toward legislation similar to Washington.
New York included rules regarding independent expenditure ads placed on an online platform in the 2018 budget implementation bill that requires independent spenders to file a copy of their NY Super PAC registrations with the platform before ads are placed.
The definition of “online platform” is very extensive, and ranges from a website or social network that sells political ads with 70,000,000 or more unique US visitors in a month, to “any network, advertising agency, advertiser or third-party ad serving company that buys and sells ads space on behalf of third-party websites, search engines, digital applications, or social media sites that have 30,000,000 or more unique monthly US visitors. This includes ad placement aggregators, which serve as an intermediary for ad placement.
The bill also included a $1,000 per violation penalty for non-compliance by an “online platform.”
Nevada law requires that any person that “accepts, broadcasts, disseminates, prints or publishes” political ads make information available to the general public about the ads close to the election.
New Jersey state law requires that people who accept compensation for “printing, broadcasting, or otherwise disseminating” New Jersey-regulated campaign activities must maintain a record of the communications with an exact copy of the communication, and records of the number of copies made or the dates and times that the communication was broadcasted, along with information about the client.
Louisiana requires that “public relations firms” or “advertising agencies” of a Louisiana candidate provide very detailed records to the candidate regarding expenditures made and can be held liable if they do not.
There are more new regulations coming and you can bet there will be more state laws about political digital ads. We at The Campaign Workshop are not attorneys, nor do we play them on TV. If you are trying to figure out how to comply with state laws, consult a lawyer and keep them around. The laws governing political digital ads will continue to change in the months and years to come.
Have questions on digital advertising? Ask them here.