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TUESDAY, SEPTEMBER 1, 2020 2:00 PM ET / 1:00 PM CT / NOON MT / 11:00 AM PT POLITICAL DIGITAL ADS: DISCLOSURE, FREE SPEECH AND LEGISLATION
TUESDAY, SEPTEMBER 1, 2020
2:00 PM ET / 1:00 PM CT / NOON MT / 11:00 AM PT
POLITICAL DIGITAL ADS: DISCLOSURE, FREE SPEECH AND LEGISLATION
HOUSEKEEPING
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SPEAKERS
Ronald Jacobs,Digital Advertising Alliance
David Voorman, Americans for Prosperity
Jared DeMarinis,Maryland State Board of Elections
Ronald M. Jacobs
Political Digital AdvertisingThe Industry View
Chair, Political Law Practice | +1 202.344.8215 | [email protected]
Candidates, PACs, nonprofits (the advertisers)
Political consultants
Digital advertising firms
Publishers
Exchanges
Demand Side Platforms
Supply Side Platforms
What is the Industry?
The Digital Advertising Alliance establishes and enforces responsible privacy practices across the industry for relevant digital advertising,
Provides consumers with enhanced transparency and control through multifaceted principles that apply to multi-site data and cross-app data gathered in either desktop, mobile web, or mobile app environments.
The DAA is an independent non-profit organization led by leading advertising and marketing trade associations.
Digital Advertising Alliance
Ad appears:
– In social media
– On a web site
– In an app
But how does it get there?
– Rarely sold by the website itself
– Complicated set of ad networks
Digital Ecosystem
Digital Advertising Ecosystem
Vote for me!
Candidates/PACs/Nonprofits
Publishers VotersAgencies DSP SSPAd Networks & Exchanges
Real-Time Bidding
Vote for me!
The Local News
Breaking news, more news, old news, what else is new, what do you want to know, who wants to know.
Bad news, more bad news, even more bad news, death, mayhem, destruction, grief, sadness
Ad Space
Supply-Side PublisherDemand-Side Publisher
Exchange
Vote for me!
Bid Parameters:• Price• Audience• Type of publisher• Etc.
Who is placing the ad (third parties or candidate)?
How was it targeted?
How much was paid?
How many saw the ad?
Which different ads were shown?
Who funded the ad?
Regulatory Questions
Information isn’t always passed through
Publisher/owner of the site may have no idea about the ads shown
Different networks place different ads so aggregate information may not be known
Where does the information sought reside (if at all)?
Who should maintain the information?
Regulatory Issues
Most states mandate some form of “Paid for by” language on an ad
Often varies by office or type of spender
– California top donor rules
Size of the ad may be a problem
Disclaimer Issues
DAA Political Ads Icon: Self-Regulatory Option
Identifies the ad as a political ad
Provides a simple way to let users obtain more information
Flexible:
– Can be customized to meet state law
– DAA has set minimum floor
What it does
• DAAP monitoring internet sites and services for compliance with DAA Political Ads Principles
• Will publish reports about its findings online
• Taking complaints from the public about non-compliant political ads, responding individually to all non-abusive complaints
• Communicating with major platforms, ad tech companies to encourage adoption of easy-to-use tools that help advertisers comply
• Using neutral methodology to find and address non-compliance; DAAP is non-partisan, independent, transparent, and fair
Self-Reg Aspects
How it Works
Name of the political advertiser;
Phone number, address, website, or alternative and reliable contact information for the advertiser;
Other information required by applicable federal or state law for such notices;
Link to a government database of contributions and expenditures for the advertiser, if applicable;
Any disclaimers required by state or federal law, if the ad itself is too small to display them (as permitted by applicable law); and
Name(s) of the advertiser’s CEO, member of the executive committee or board of directors, or treasurer.
Popup Contents
In Practice
Governments can permit use of an icon
May specify how interstitial works (contents)
Could reference DAA as an option
Easier than specifying font size, color, etc., which will change by ad
Could replace traditional disclaimer (either based on size or for all)
More adoption, makes it more well known and accepted
Easier compliance, with flexibility for state requirements
Working with Laws
Does not require platforms to maintain information
Does not impose disclosure beyond what is generally required by states
Does not create an ad database
What it is not
© 2020 Venable LLP.This document is published by the law firm Venable LLP. It is not intended to provide legal advice or opinion. Such advice may only be given when related to specific fact situations that Venable has accepted an engagement as counsel to address.
Digital Political Ads:Disclosure, Free Speech and
LegislationDavid Voorman
Sr. Policy AnalystAmericans for Prosperity
Political Ads are Core Political Speech
• Public officials pushing to regulate online ads are really pushing regulating core political speech, the ability of citizens to criticize them.
Political Ads are Core Political Speech
• Public officials pushing to regulate online ads are really pushing regulating core political speech, the ability of citizens to criticize them.
• Free speech is the best defense against bad government.
Political Ads are Core Political Speech
• Public officials pushing to regulate online ads are really pushing regulating core political speech, the ability of citizens to criticize them.
• Free speech is the best defense against bad government. • Efforts to curb it – whether through these tactics or others – will inevitably
hurt those the policies claim to protect.
Political Ads are Core Political Speech
• Public officials pushing to regulate online ads are really pushing regulating core political speech, the ability of citizens to criticize them.
• Free speech is the best defense against bad government. • Efforts to curb it – whether through these tactics or others – will inevitably
hurt those the policies claim to protect. • For example, the relatively low expense of digital ads make them one of the
most effective means for newcomers to connect with the public. Honest Ads-like policies would stymie the current ecosystem of expression online –making it more burdensome for social media sites, challengers, and citizens alike.
Free Speech/First Amendment Concerns
• Burdensome regulations chill political speech.• Chills the speech of organizations that do not have
sophistication or monetary resources.
Free Speech/First Amendment Concerns
• Burdensome regulations chill political speech.• Chills the speech of organizations that do not have
sophistication or monetary resources.• Chills speech when platforms refuse to publish political
ads.
Free Speech/First Amendment Concerns
• Burdensome regulations chill political speech.• Chills the speech of organizations that do not have
sophistication or monetary resources.• Chills speech when platforms refuse to publish political
ads.• Disclosure requirements can compel speech
Free Speech/First Amendment Concerns
• Burdensome regulations chill political speech.• Chills the speech of organizations that do not have
sophistication or monetary resources.• Chills speech when platforms refuse to publish political
ads.• Disclosure requirements can compel speech.• Free Association is threatened by stripping citizens of their
privacy.
Principles for Legislation
• Recognize different media calls for different rules, especially when it comes to the internet.
Principles for Legislation
• Recognize different media calls for different rules, especially when it comes to the internet.
• Law should be clear on what is required for compliance and what disclosures must include.
Principles for Legislation
• Recognize different media calls for different rules, especially when it comes to the internet.
• Law should be clear on what is required for compliance and what disclosures must include.
• Disclosures should be concise and clear and convey only needed information to the public.
Principles for Legislation
• Recognize different media calls for different rules, especially when it comes to the internet.
• Law should be clear on what is required for compliance and what disclosures must include.
• Disclosures should be concise and clear and convey only needed information to the public.
• Any legislation or regulation should not reduce the ability of individuals and nonprofits to engage in political speech.
Jared DeMarinis
Director, Division of Candidacy and Campaign Finance
Maryland State Board of Elections
UPCOMING NCSL EVENTSLessons Learned From the 2020
Primaries
Sept. 9, 2020 | 2 p.m. ET / 1 p.m. CT / Noon MT / 11 a.m. PT
2020 Census Updates
Sept. 18, 2020 | 2 p.m. ET / 1 p.m. CT / Noon MT / 11 a.m. PT
Where Money and Free Speech
Intersect
Sept. 3, 2020 | 2 p.m. ET / 1 p.m. CT/ Noon MT/ 11 a.m. PT
NCSL Base Camp 2020
Questions?Ronald Jacobs: [email protected]
David Voorman: [email protected] DeMarinis: [email protected]
NCSL Contacts:Wendy Underhill: [email protected]
Mandy Zoch: [email protected]
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