As Congress and the Federal Elections Commission explore ways to counter foreign influence in U.S. elections through greater campaign finance disclosures, EFF has filed comments reminding policy makers of the danger of going too far. While the FEC’s goals are understandable, it must take care not to undermine the right of ordinary Americans to speak anonymously about political issues. What we need is transparency from Internet companies about their advertising practices across the board—not laws that strip ordinary people of their constitutional rights and undermine our democratic values.
For everyday Americans, the Internet offers one the most effective and inexpensive ways to make their voices heard in our nation’s political debate. It’s also a way to do so without fear of retaliation if your voice offers an unpopular view. An LGBTQ individual who is not “out” to their family or employer may fear ostracism, harassment, or threats of violence if they openly purchase a small ad on a social media platform advocating for a candidate who supports federal legislation banning discrimination on the basis of sexual orientation. And a conservative person living in a small liberal community may fear social or professional harm if they openly spent a small sum to amplify on social media their support for a conservative local political candidate. But today both people can avoid that retaliation by purchasing these small ads anonymously.1
The FEC should not prevent that choice. Anonymous speech is a critical component of our online political debate. Not only do we need to protect it, we need to be doing more as a society to bolster the power of those who lack access to resources to make their voices heard.
What we really need is for Internet companies to provide more transparency regarding the mechanics of how and why all manner of advertisements are targeting them, and to give users greater control over the data collected about them and how it is used.
Background: The FEC Rulemaking
The FEC is considering crafting new rules to require disclaimers or another form of attribution on paid political speech on the Internet, such as display advertisements or promoted posts. The FEC asked the public for comments on this proposal back in October, after news broke of Russian interference in our election. The FEC sought public comment on whether it should extend its existing rules for disclaimer notices at the bottom of traditional ads—rules designed for the offline world—to the Internet, or whether it should craft new disclaimer rules with the Internet in mind.
In our comments, EFF urged the FEC to ensure that any new rules are sensitive to the unique nature of the Internet, and not to simply cut-and-paste existing disclaimer rules for older and different communications mediums. That includes ensuring that any new rules preserve Americans’ ability to anonymously post small ads to promote their views on candidates, elections, and public issues—considering the vital role that anonymous online political speech, including low-cost paid speech, plays in our democracy.
Anonymous online political speech is vital for any modern democratic society.
On the Internet, it is easier than ever to participate in the national political debate—including via the purchase of online election ads. With a few clicks and a few dollars, a user can promote a tweet or Facebook post—which transforms their original unpaid post into an ad that is then served to other users in their news feeds—or pay for the placement of a display advertisement on a website. But some people may need to purchase political ads anonymously—to avoid harassment, threats of violence, ostracism, employment termination, or worse.
The right to participate anonymously and pseudonymously in political discourse is vital to any democracy. It is a right that is protected by the First Amendment, and it has been a part of U.S. politics since as far back as the Federalist Papers and Thomas Paine’s “Common Sense” and as recently as the numerous political parody Twitter accounts lampooning the president. The Supreme Court has said that anonymity serves as a “shield from the tyranny of the majority,” and the United Nation’s free speech watchdog concluded that online anonymity creates “a zone of privacy to protect opinion and belief.”
Policymakers may have good intentions, but they must protect our democracy and ensure that any new rules don’t inadvertently chill or deter participation in our nation’s online political debate. Their efforts must preserve the ability for voters to protect their identity when they spend small amounts of money to expand the reach of their viewpoints online.
What can be done now: Internet companies can and should better inform their users about how and why they are being targeted.
The core problem is not a lack of transparency surrounding the identity of people who spend a small amount of money on online election ads, or even the particular mechanics of online election advertising. It is the lack of transparency about social medial platforms’ advertising practices in general. As we noted in our comments:
“With sophisticated technology, advertisers surreptitiously follow users across the Internet, amass as much data as possible, and serve microtargeted ads in hyper-personalized feeds that no one else may ever see. Today’s fractured Internet was designed for manipulating users.”
That’s why we’ve called on Internet companies to provide their users with more transparency regarding the mechanics of how and why all manner of advertisements are targeting them, and to give users greater control over the data collected about them and how it is used.
Government-mandated disclaimers about the identity of people spending small sums to amplify their online issue and election-related speech will not solve the systematic lack of transparency in the online advertising world. But stripping anonymity from such ordinary people will do serious harm to our democracy.
We hope that if the FEC decides to adopt new rules for the Internet, its rules preserve the Internet’s ability to strengthen our democratic values. To do that, as EFF told the FEC, “we need a solution that balances the need for transparency with the critical role that anonymous online political speech plays in our democracy.”
- 1. Americans can currently spend up to $250 in the aggregate with respect to a federal election in a calendar year before federal law requires them to report their spending to the FEC. See 11 CFR 104.4(e).