WASHINGTON D.C. — On Friday, TechFreedom filed comments with the Federal Election Commission regarding what kind of labeling the Commission should require for online political ads.
In March, the FEC issued a notice of proposed rulemaking seeking comment on disclosure requirements for online political advertisements. For small ads, TechFreedom supports a proposal to allow advertisers to include an indicator that informs users that they’re viewing a political ad and provides easy access to the information required for political ads on another page, via hover text, or through some other technological mechanism. The advertising industry launched just such a program last week (PoliticalAd) building on an earlier program that labels ads targeted to users’ interests (AdChoices).
“Trying to cram disclosures into most online ads won’t help inform voters, but it will prevent campaigns and other groups from using the Internet to exercise their First Amendment rights effectively,” said TechFreedom President Berin Szóka. “There’s just no user-friendly way to do this other than to use an indicator. The only question is how to make sure the indicator is implemented in an effective, user-friendly way. No sane person really wants the government to get into the complex business of online interface design, but the FEC doesn’t have to blindly trust the ad industry to do the right thing, either. The FEC should allow the advertising industry to implement an indicator-based system, but also check in after each of the next two elections to see what real-world data say about users’ understanding of the indicator icons and associated wording. That will give the advertising industry an incentive to maximize user understanding through good design and awareness-building campaigns.”
“Requiring smart disclosure would empower users and enable experimentation in disclosure without government having to try to get design right,” continued Szóka. “The law already requires disclosure of specific information about anyone who buys a covered political ad. The size of Internet ads may make it impossible to cram that information into the ad, but the way the Internet works also makes it possible to deliver that information to the user’s browser behind the scenes. That machine-readable code remains invisible unless the user installs a tool, like a browser or a browser extension, that interprets it. If indicators really aren’t working for users, we’ll know, because browser extensions that provide better disclosure will become popular, or Mozilla will include such a feature in its Firefox browser.”
“The FEC usually deadlocks 3-3 along party lines, but our proposed compromise should command bipartisan support,” concluded Szóka. “This isn’t about helping one side or the other; it’s about making disclosures work for users. If Democratic Commissioners are skeptical of relying on industry to implement effective disclosures, we’ve identified three ways of proceeding on a ‘trust but verify’ basis. A bipartisan vote is the only way to provide clarity to industry, and a 2021 sunset with the safeguards we’ve proposed could be the key to a kind of compromise.”
TechFreedom encourages the FEC to adopt the proposed indicator system for small ads, at least on an interim basis, but also recommends that the Commission (1) collect data on how well users understand such indicators in the lead-up to the 2018 midterm elections; (2) encourage advertisers to build awareness of what such indicators mean; and (3) require that even small ads be accompanied by machine-readable code containing the required disclosure information, so that makers of browsers and browser extensions can innovate with ways to parse or display that information for users.
We can be reached for comment at email@example.com. See more of our work on online speech, including:
- Tech Policy Podcast Episodes 107, 116, and 198 on digital political speech with FEC Commissioner Lee Goodman
- Our statement on the flaws of a “Fairness Doctrine” for the Internet
- Our statement on the Honest Ads Act