Members of the House and Senate Intelligence Committees have called on Facebook to release ads paid for and promoted by the Russian government during the 2016 election, but a wiretapping law passed in 1986 is complicating things.
The law is the Electronic Communications Privacy Act, referred to as ECPA, which governs when tech companies can disclose “communications” to third parties and the government. ECPA, an update to the federal wiretapping statute, was designed to protect the privacy rights of individuals in the spirit of the Fourth Amendment.
“I've worked with this statute for 20 years and I learn something new every time I look at it,” Albert Gidari, the Director of Privacy at the Stanford Center for Internet and Society who has previously represented Google and Facebook on ECPA issues. “It's exceedingly complex.”
Under ECPA, ads circulated through social networks are protected in the same way as private messages and things you post publicly on social networks, he said. “People tend to think of ads as the brick and mortar world of the 19th century instead of the digital world, where the ads are nothing more than bulletin board messages to many people,” Gidari said. “So I think in the end that's where providers and platforms come out generally, is that an ad is just another way of communicating with people through their platforms.”
In early September, Facebook revealed that it had discovered approximately 3,000 ads designed to influence the election that appeared to come from organized efforts in Russia. It shared these ads with U.S. authorities, but did not release them publicly. Since then, Google has revealed Russian ads were bought on YouTube, Gmail and Google Search, and on Twitter it seems Russians created bot accounts to spread misinformation. Representatives from Facebook, Google and Twitter have been summoned to Capitol Hill on November 1 to testify before Congress.
According to Gidari, Congress already overstepped its authority by asking Facebook to turn over these ads. “I don't believe that Congress has any authority to ask for anything, because Congress passed ECPA and it did not exclude congressional subpoenas or otherwise, from the coverage,” he said. “Every legislative staffer I've ever talked to, everyone who's ever worked for a member of Congress or has been in the committee, believes they have this authority,” Gidari said. “Every provider I know, does not.”
But Congress generally believes it has a constitutionally vested authority to conduct investigations, he said, which supersedes some statues.
Facebook and Twitter also turned ads over to Justice Department-appointed special counsel Robert Mueller, who is investigating Russian influence in the election. Gidari assumes that the Mueller investigation had a judge sign a warrant in order to get access to the ads, which is a specific scenario covered by ECPA that allows a platform would turn over communications.
Facebook did not reply to a request for an interview. Google and Twitter did not reply to a request for comment.
Facebook is battling a separate request from the Trump administration to turn over information on three Facebook accounts
The way tech companies handle ECPA has a lot to do with whether the content or “communications” in question is still publicly available, Gidari said. The calculus is much simpler when content is already public, as the content could theoretically be freely obtained by any interested party with an internet connection, but becomes more complex once it’s removed. According to The New York Times, all of the pages operated by Russians as part of the influence operation have been taken down. That means if Facebook wanted to reveal the content of the Russian ads, it would most likely violate ECPA, he said.
On the surface, there doesn’t seem to be much trouble for Facebook in violating ECPA in this instance. “Because your remedies under the statute are for a person aggrieved, and the person aggrieved in that context would be the person who promoted a Russian ad, so maybe you do the calculation that ‘I'm not going to get sued by a Russian advertiser,’” Gidari said.
However, while Facebook probably wouldn’t be sued by a Russian advertiser, giving in to Congress’s demands in this situation may weaken its ability to resist overbroad or intrusive requests by the US government in future cases.
Right now Facebook is battling a separate request from the Trump administration to turn over information on three Facebook accounts, which could reveal the names of thousands of people who liked an anti-Trump Facebook page. It’s part of an investigation into hundreds of protesters who the DOJ says allegedly conspired to riot during Trump’s inauguration on January 20. Facebook’s hasn’t said if it has complied with the warrants but said it fought in court to notify the protestors in question of the pending warrant. If Facebook were to capitulate and reveal the content of Russian ads, that could set a precedent for turning over information in other cases. “The Department of Justice is very good at shaming people who have done something before and changed their policy because they've now decided the law says something different,” Girardi said. “I think [Facebook] should worry about that kind of an argument.”
While we may not see the ads bought by Russians on platforms like Facebook and Twitter from the companies themselves, some were shown or described to news outlets including CNN and The New York Times. CNN described ads that targeted Michigan and Wisconsin, two swing states that unexpectedly voted for Trump, with divisive messages like “suggesting that Muslims were a threat to the American way of life.” “The ads and accounts we found appeared to amplify divisive political issues across the political spectrum,” including gun rights, gay rights issues and the Black Lives Matter movement, a Facebook spokesperson told the Times. The ads weren’t explicitly political, or for or against one candidate, but instead seemed like an attempt to inflame longstanding racial tensions. One advertisement, for example, was a video that falsely claimed that Muslim immigrants were collecting government benefit checks for themselves as well as their “four wives.”
There’s still much more to learn about how Russia used social media platforms in an attempt to influence the election. But as it stands now, these companies must weigh the public’s desire to see the ads against their ability to shield user information from future government requests.
