Facebook's Sheryl Sandberg just hinted that Russian-bought ads could be fair game

Sheryl SandbergKimberly White/GettySheryl Sandberg on a panel at the Fortune Global Forum – Day2 at the Fairmont Hotel on November 3, 2015 in San Francisco, California.
  • Facebook COO Sheryl Sandberg said the company would have let Russian-bought political ads run if they had been purchased by real people rather than fake accounts.
  • Legal experts say foreign entities cannot buy ads that promote one candidate over another, but the law is murkier when it comes to ads that promote a certain issue or “fake news.”
  • It is not clear whether Facebook could be held liable for allowing ads purchased by foreign entities to run on its platform.

Facebook Chief Operating Officer Sheryl Sandberg told Axios’ Mike Allen on Thursday that the company would not have removed the political ads purchased by accounts operating out of Russia if they had been posted by real people rather than fake accounts.

“These ads were taken down because they were from fake accounts,” Allen said, referring to Facebook’s purge of 470 accounts and pages it deemed “inauthentic” and connected to Russia’s Internet Research Agency.

“If they’d been from real accounts, would you let them run?” Allen asked.

“If they — and not all of them, some of them are hate, some of them are violence, and those come down on our platform — but a lot of them, if they were run by legitimate people, we would let them run,” Sandberg said.

“Most of them would have been allowed to run,” she continued. “When you allow free expression, you allow free expression, and that means you allow people to say things that you don’t like and that go against your core beliefs. And it’s not just content — it’s ads. Because when you’re thinking about political speech, ads are really important.”

Laura Rosenberger, director of the Alliance for Securing Democracy and a senior fellow at The German Marshall Fund of the United States, said Friday that Sandberg’s comments miss the point.

“Foreign governments should not be able to purchase such political ads, period,” she wrote on Twitter, adding that any “loophole” allowing them to buy these ads should be closed.

While it is illegal for a foreign government or entity to spend money on political ads in an attempt to sway a US election, “there is no doubt disagreement over which ads are covered by the prohibition,” said election law and campaign finance expert Rick Hasen.

“At the least, ads that contain express advocacy (such as ads saying ‘Vote for Stein,’ as is alleged to be within the group of Facebook ads), would be illegal,” said Hasen, a professor of law and political science at the University of California, Irvine.

Politico reported last month that some of the ads explicitly endorsed Trump, Green Party candidate Jill Stein, and Democratic candidate Bernie Sanders.

But the laws governing foreign-bought ads that aim to promote junk news or a particular issue over another — rather than one candidate over another — are murkier.

“If Russians are buying ads that promote fake news, but do not advocate for or against any particular candidate, that is not illegal,” said James Gardner, an election law expert at SUNY Buffalo Law School. “And the problems it raises are not distinct from the problems raised by anyone using Facebook or any other media platform to propagate falsehoods in the hope of influencing public opinion.”

It is also not clear whether Facebook itself would be held liable for allowing a foreign entity to buy political ads, even though federal law prohibits foreign nationals from making contributions or in-kind donations in an attempt to influence a US election, said Josh Douglas, an election law expert at the University of Kentucky College of Law.

Sandberg told Allen on Thursday that Facebook wants to become a leader in transparency, echoing Facebook CEO Mark Zuckerberg’s pledge last month to place greater scrutiny on the the company’s ad-sales process.

Mark zuckerbergDrew Angerer / StaffMark Zuckerberg said last month that he ‘care(s) deeply about the democratic process and protecting its integrity.’

Hasen recently raised the possibility, however, that the Supreme Court could apply “the same framework it has applied in the domestic campaign finance context to foreign individuals, entities and governments.”

He pointed to the 1976 Supreme Court case of Buckley v. Valeo, which held that requiring disclosure and limiting certain expenditures could only be applied for ads that explicitly promoted one federal candidate over another. Otherwise, the court ruled, such restrictions constituted an “unconstitutionally vague limit on free speech.”

Robert Mueller, the special counsel leading the Justice Department investigation into Russia’s election interference, reportedly obtained a search warrant last month for the Russia-linked accounts and the ads they purchased. The move indicated he thinks he can obtain enough evidence to charge specific foreign entities with a crime, experts said.

Democratic Sens. Mark Warner and Amy Klobuchar also recently introduced legislation that would require tech companies like Facebook and Google to “make reasonable efforts to ensure that electioneering communications are not purchased by a foreign national, directly or indirectly.”

But Hasen said, depending on how broad the bill’s language is and the Supreme Court’s understanding of the First Amendment in this context, companies may still not be required to ban foreign-bought ads that don’t expressly advocate one candidate over another.

Many of the ads purchased by the Russian accounts did not endorse anyone in particular: At least one centered on the Black Lives Matter movement, and a group impersonating a California-based Muslim organisation was set up to push fake stories about Hillary Clinton, the Democratic nominee.

“Let’s hope that should the issue ever come to the Supreme Court, even the champions of campaign finance deregulation will come to see that it is a matter of national security and sovereignty to assure that only Americans should be able to influence who American leaders should be,” Hasen wrote. “But don’t count on it.”

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