“What Law?”Political Spending on the

Internet in the US and UK

Lori A. RinghandFulbright Scotland Visiting Professor &

J. Alton Hosch Professor of Law

• Spending of more than $1 million per month

• Fake social media accounts ran by trained impersonators

• Fed into 30 million Facebook News Feeds

• Liked and shared to millions more

• 34 indictments (13 Russian nationals); 7 guilty pleas; 17investigations

2016 US Election

• Government: no evidence of “successful” efforts

• Maximum fine imposed on FB by Information Commission

• “Brexit botnet”

• 419 now-suspended accounts had been active

• Two criminal investigation referrals

• Parties and groups fined for financing and data violations

• 4 Parliamentary investigations

Brexit Referendum

What Law?

US

Unlimited spendingLimited contributions to parties, candidates and some groups

Unlimited (and often undisclosed) contributions to other groups

UKLimited spending by parties and most groupsUnlimited contributions to parties and groups

Contributions disclosed after election

No laws

Anonymous online electioneering

Use of imposter accounts and botnets

Undisclosed funding sources of online efforts

Foreign spending on amplification

Online?No comprehensive imprint rules

US: Only “express” & “paid to place” on websiteUK: None

No comprehensive disclose rulesUS: Social welfare groups excluded; “earmarks”UK: After election, aggregated

Unclear foreign spending rulesUS: Citizen’s United but BlumanUK: Not clearly captured by current regulations if <trigger

Reform Proposals?

Transparency

Protects against corruption through vigilanceContextualizes the messages we see

Transparency Source Exclusions

Transparency: Defining the Scope

Law Professors are Awesome!

ElectLori Ringhand!

We need more Law Professors

in the Senate

Content Speaker Time

US“Magic Words”Express v Issue

Time + ID

Primary Purpose test

within 30 days of Primary

or 60 days of election

UKInfluencing Elections

or Political Ends

Purpose “wholly or mainly” political

During Election Period

Internet Effect Transitory

Can test and delete thousands of ads avoiding magic words

OrganicTough to tie to identity of speaker because messages gain power

through likes and shares

Cheap A little spend goes a long way; cost is in production not placement

Ubiquitous We are all talking all the time, diluting effect of time bound

regulations

Reform Proposals?

Source Exclusions

Prohibit certain entities from participating in the conversation even when fully disclosed

Transparency Source Exclusions

Dear Ohio Voter ... Don’t be so ashamed of your

president: the majority of you didn’t vote for him. If Bush is finally

elected properly, that will be the time for Americans traveling abroad

to simulate a Canadian accent. Please don’t let it come to that. Vote against Bin Laden’s dream candidate. Vote to send Bush

packing.

Source Exclusions: Who and Why?

No “corruption” of public officials

Mediated through minds of voters

US: “Narrowly tailored” to meet state interest

UK: Proportionate to need or necessary in a democracy

Legally relevant Normatively complex

If fully transparent, why prevent a voter from hearing the perspective of outsiders?

Citizens United barred speaker distinctions for contributions

But foreign express spending ban upheld in name of democratic self-determination

Foreign donations prohibited

But status of foreign sourced spending is unclear

Internet Effect

Rapidity

Confirmation Bias

Emotionality

Distortion

Normalization

Do now

1. Online imprints• Require online imprints for communications

already requiring them offline2. Disclosure

• Eliminate exemptions (US) and expedite reporting (UK)

3. Clarify foreign source exclusion rules4. Learn from each other

“What Law?”Political Spending on the

Internet in the US and UK

Lori A. RinghandFulbright Scotland Visiting Professor &

J. Alton Hosch Professor of Law