Via the NY Times comes news that Facebook will not only support passage of the Honest Ads Act (currently pending in committee where it may stay), but will also self-regulate “issue ads.” The self-regulation is important, because it may be that some government regulation in this area is unconstitutional. Still, the details will matter, and it remains to be seen if Facebook will have the interest and patience in coming up with full and effective self-regulation.  I explain why in this post.

Not all ads that the Russian government and others ran in the 2016 elections intended to influence the elections would be governed by federal law barring foreign nationals from spending money in U.S. elections. Those that do not expressly advocate the election or defeat of a candidate are not barred unless they appear on television or radio close to the election and feature the candidate’s name or likeness. So when Russians ran an ad saying “Hillary is a Satan” close to the election it would not be covered. The Honest Ads Act would extend the rules applying to television and radio to digital ads, and so “Hillary is a Satan” would be covered and the Russian government could not pay for such ads close to the election.

But as the Times explains  lots of the Russian ads did not even mention a candidate but were intended to influence the election:

Law enforcement officials say Russian agents, looking to stir discord, posed as Americans with Facebook pages that represented a range of political viewpoints, from “Blacktivist” to “Heart of Texas.”…

The policy builds on an announcement in October that Facebook would start verifying advertisers running “election-related” ads. Critics said that would not capture many of the ads run by Russian agents around the 2016 election, which focused on issues rather than specific elections. One Internet Research Agency ad, for example, featured a Confederate flag and said, “The South will rise again!”

Facebook’s move on Friday would address those issue ads. Most of the Russian ads focused on “divisive political issues like guns, L.G.B.T. rights, immigration and racial issues,” Senator Mark Warner, Democrat of Virginia, said in a statement.

“That’s why today’s announcement by Facebook is so important,” he added.

I explained in pieces in Politico and Slate that it is not clear that the conservative Supreme Court will allow the government to bar foreign spending on issue ads that do not mention a candidate by name. (For the full academic discussion of the relevant constitutional cases and regulations, see my recently published piece, Cheap Speech and What It has Done (to American Democracy), 16 First Amendment Law Review 200, 217-222 (2018)).

But Facebook is not a government actor, and it can choose to exclude these ads if paid for by foreign governments, or require disclosure of them. There’s no First Amendment problem with that at all, but it’s not clear exactly how this will work.

Here’s the relevant part of yesterday’s announcement from Facebook’s Rob Goldman and Alex Himel:

Last October, we announced that only authorized advertisers will be able to run electoral ads on Facebook or Instagram. And today, we’re extending that requirement to anyone that wants to show “issue ads” — like political topics that are being debated across the country. We are working with third parties to develop a list of key issues, which we will refine over time. To get authorized by Facebook, advertisers will need to confirm their identity and location. Advertisers will be prohibited from running political ads — electoral or issue-based — until they are authorized.

In addition, these ads will be clearly labeled in the top left corner as “Political Ad.” Next to it we will show “paid for by” information. We started testing the authorization process this week, and people will begin seeing the label and additional information in the US later this spring…

.We know we were slow to pick-up foreign interference in the 2016 US elections. Today’s updates are designed to prevent future abuse in elections — and to help ensure you have the information that you need to assess political and issue ads, as well as content on Pages. By increasing transparency around ads and Pages on Facebook, we can increase accountability for advertisers — improving our service for everyone.

Here’s a hypothetical to flesh out some issues. Let’s assume that Facebook, working with these third parties, can successfully identify key issues like “Black Lives Matter,” immigration, or gay rights and religious liberties. Suppose an ad comes in from a group formed in the U.S. called “Traditional Values Coalition” or “Progress Now!” running ads on LGBT issues.

1. Will Facebook require these groups to disclose their donors? What if their donors consist of a series of shell groups, hiding the real identity of the group? How will Facebook know that they’ve figured out who the real donors are?
2. What happens if Facebook determines that some of the donors are foreign? Will it apply a percentage test?
3. Will foreign ads simply be subject to disclosure regulation, or will the ads be rejected if from a foreign source even if federal law does not bar the ads (such as “Hillary is a Satan” if the Honest Ads Act does not apply, or LGBT ads if it does apply)?
4. What if the material is from a media corporation that is a foreign entity, like The Guardian? (Suppose The Guardian editorializes “Don’t vote for Trump.”) if so, how will it decide who counts as the media?

There are many more questions, but Facebook has some difficult decisions to make if it goes ahead with this.