[Congressional Record Volume 164, Number 93 (Wednesday, June 6, 2018)]
[Senate]
[Pages S3258-S3260]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2361. Ms. KLOBUCHAR (for herself and Mr. Warner) submitted an
amendment intended to be proposed to amendment SA 2282 submitted by Mr.
Inhofe (for himself and Mr. McCain) and intended to be proposed to the
bill H.R. 5515, to authorize appropriations for fiscal year 2019 for
military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the appropriate place in title X, insert the following:
Subtitle _--Honest Ads
SEC. _01. SHORT TITLE.
This subtitle may be cited as the ``Honest Ads Act''.
SEC. _02. PURPOSE.
The purpose of this subtitle is to enhance the integrity of
American democracy and national security by improving
disclosure requirements for online political advertisements
in order to uphold the United States Supreme Court's well-
established standard that the electorate bears the right to
be fully informed.
SEC. _03. FINDINGS.
Congress makes the following findings:
(1) On January 6, 2017, the Office of the Director of
National Intelligence published a report titled ``Assessing
Russian Activities and Intentions in Recent U.S. Elections'',
noting that ``Russian President Vladimir Putin ordered an
influence campaign in 2016 aimed at the U.S. Presidential
election . . .''. Moscow's influence campaign followed a
Russian messaging strategy that blends covert intelligence
operation--such as cyber activity--with overt efforts by
Russian Government agencies, State-funded media, third-party
intermediaries, and paid social media users or ``trolls.''
(2) On November 24, 2016, the Washington Post reported
findings from 2 teams of independent researchers that
concluded Russians ``exploited American-made technology
platforms to attack U.S. democracy at a particularly
vulnerable moment . . . as part of a broadly effective
strategy of sowing distrust in U.S. democracy and its
leaders.''.
(3) Findings from a 2017 study on the manipulation of
public opinion through social media conducted by the
Computational Propaganda Research Project at the Oxford
Internet Institute found that the Kremlin is using pro-
Russian bots to manipulate public discourse to a highly
targeted audience. With a sample of nearly 1,300,000 tweets,
researchers found that in the 2016 election's 3 decisive
States, propaganda constituted 40 percent of the sampled
election-related tweets that went to Pennsylvanians, 34
percent to Michigan voters, and 30 percent to those in
Wisconsin. In other swing States, the figure reached 42
percent in Missouri, 41 percent in Florida, 40 percent in
North Carolina, 38 percent in Colorado, and 35 percent in
Ohio.
(4) On September 6, 2017, the Nation's largest social media
platform disclosed that between June 2015 and May 2017,
Russian entities purchased $100,000 in political
advertisements, publishing roughly 3,000 ads linked to fake
accounts associated with the Internet Research Agency, a pro-
Kremlin organization. According to the company, the ads
purchased focused ``on amplifying divisive social and
political messages . . .''.
(5) In 2002, the Bipartisan Campaign Reform Act became law,
establishing disclosure requirements for political
advertisements distributed from a television or radio
broadcast station or provider of cable or satellite
television. In 2003, the Supreme Court upheld regulations on
electioneering communications established under the Act,
noting that such requirements ``provide the electorate with
information and insure that the voters are fully informed
about the person or group who is speaking.''.
(6) According to a study from Borrell Associates, in 2016,
$1,415,000,000 was spent on online advertising, more than
quadruple the amount in 2012.
(7) The reach of a few large internet platforms--larger
than any broadcast, satellite, or cable provider--has greatly
facilitated the scope and effectiveness of disinformation
campaigns. For instance, the largest platform has over
210,000,000 American users--over 160,000,000 of them on a
daily basis. By contrast, the largest cable television
provider has 22,430,000 subscribers, while the largest
satellite television provider has 21,000,000 subscribers. And
the most-watched television broadcast in U.S. history had
118,000,000 viewers.
[[Page S3259]]
(8) The public nature of broadcast television, radio, and
satellite ensures a level of publicity for any political
advertisement. These communications are accessible to the
press, fact-checkers, and political opponents; this creates
strong disincentives for a candidate to disseminate
materially false, inflammatory, or contradictory messages to
the public. Social media platforms, in contrast, can target
portions of the electorate with direct, ephemeral
advertisements often on the basis of private information the
platform has on individuals, enabling political
advertisements that are contradictory, racially or socially
inflammatory, or materially false.
(9) According to comScore, 2 companies own 8 of the 10 most
popular smartphone applications as of June 2017, including
the most popular social media and email services--which
deliver information and news to users without requiring
proactivity by the user. Those same 2 companies accounted for
99 percent of revenue growth from digital advertising in
2016, including 77 percent of gross spending. 79 percent of
online Americans--representing 68 percent of all Americans--
use the single largest social network, while 66 percent of
these users are most likely to get their news from that site.
(10) In its 2006 rulemaking, the Federal Election
Commission noted that only 18 percent of all Americans cited
the internet as their leading source of news about the 2004
Presidential election; by contrast, the Pew Research Center
found that 65 percent of Americans identified an internet-
based source as their leading source of information for the
2016 election.
(11) The Federal Election Commission, the independent
Federal agency charged with protecting the integrity of the
Federal campaign finance process by providing transparency
and administering campaign finance laws, has failed to take
action to address online political advertisements.
(12) In testimony before the Senate Select Committee on
Intelligence titled, ``Disinformation: A Primer in Russian
Active Measures and Influence Campaigns,'' multiple expert
witnesses testified that while the disinformation tactics of
foreign adversaries have not necessarily changed, social
media services now provide ``platform[s] practically purpose-
built for active measures[.]'' Similarly, as Gen. (RET) Keith
B. Alexander, the former Director of the National Security
Agency, testified, during the Cold War ``if the Soviet Union
sought to manipulate information flow, it would have to do so
principally through its own propaganda outlets or through
active measures that would generate specific news: planting
of leaflets, inciting of violence, creation of other false
materials and narratives. But the news itself was hard to
manipulate because it would have required actual control of
the organs of media, which took long-term efforts to
penetrate. Today, however, because the clear majority of the
information on social media sites is uncurated and there is a
rapid proliferation of information sources and other sites
that can reinforce information, there is an increasing
likelihood that the information available to average
consumers may be inaccurate (whether intentionally or
otherwise) and may be more easily manipulable than in prior
eras.''.
(13) Current regulations on political advertisements do not
provide sufficient transparency to uphold the public's right
to be fully informed about political advertisements made
online.
SEC. _04. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) the dramatic increase in digital political
advertisements, and the growing centrality of online
platforms in the lives of Americans, requires the Congress
and the Federal Election Commission to take meaningful action
to ensure that laws and regulations provide the
accountability and transparency that is fundamental to our
democracy;
(2) free and fair elections require both transparency and
accountability which give the public a right to know the true
sources of funding for political advertisements in order to
make informed political choices and hold elected officials
accountable; and
(3) transparency of funding for political advertisements is
essential to enforce other campaign finance laws, including
the prohibition on campaign spending by foreign nationals.
SEC. _05. EXPANSION OF DEFINITION OF PUBLIC COMMUNICATION.
(a) In General.--Paragraph (22) of section 301 of the
Federal Election Campaign Act of 1971 (52 U.S.C. 30101(22))
is amended by striking ``or satellite communication'' and
inserting ``satellite, paid internet, or paid digital
communication''.
(b) Treatment of Contributions and Expenditures.--Section
301 of such Act (52 U.S.C. 30101) is amended--
(1) in paragraph (8)(B)--
(A) by striking ``on broadcasting stations, or in
newspapers, magazines, or similar types of general public
political advertising'' in clause (v) and inserting ``in any
public communication'';
(B) by striking ``broadcasting, newspaper, magazine,
billboard, direct mail, or similar type of general public
communication or political advertising'' in clause (ix)(1)
and inserting ``public communication''; and
(C) by striking ``but not including the use of
broadcasting, newspapers, magazines, billboards, direct mail,
or similar types of general public communication or political
advertising'' in clause (x) and inserting ``but not including
use in any public communication''; and
(2) in paragraph (9)(B)--
(A) by striking clause (i) and inserting the following:
``(i) any news story, commentary, or editorial distributed
through the facilities of any broadcasting station or any
print, online, or digital newspaper, magazine, blog,
publication, or periodical, unless such broadcasting, print,
online, or digital facilities are owned or controlled by any
political party, political committee, or candidate;''; and
(B) by striking ``on broadcasting stations, or in
newspapers, magazines, or similar types of general public
political advertising'' in clause (iv) and inserting ``in any
public communication''.
(c) Disclosure and Disclaimer Statements.--Subsection (a)
of section 318 of such Act (52 U.S.C. 30120) is amended--
(1) by striking ``financing any communication through any
broadcasting station, newspaper, magazine, outdoor
advertising facility, mailing, or any other type of general
public political advertising'' and inserting ``financing any
public communication''; and
(2) by striking ``solicits any contribution through any
broadcasting station, newspaper, magazine, outdoor
advertising facility, mailing, or any other type of general
public political advertising'' and inserting ``solicits any
contribution through any public communication''.
SEC. _06. EXPANSION OF DEFINITION OF ELECTIONEERING
COMMUNICATION.
(a) Expansion to Online Communications.--
(1) Application to qualified internet and digital
communications.--
(A) In general.--Subparagraph (A) of section 304(f)(3) of
the Federal Election Campaign Act of 1971 (52 U.S.C.
30104(f)(3)(A)) is amended by striking ``or satellite
communication'' each place it appears in clauses (i) and (ii)
and inserting ``satellite, or qualified internet or digital
communication''.
(B) Qualified internet or digital communication.--Paragraph
(3) of section 304(f) of such Act (52 U.S.C. 30104(f)) is
amended by adding at the end the following new subparagraph:
``(D) Qualified internet or digital communication.--The
term `qualified internet or digital communication' means any
communication which is placed or promoted for a fee on an
online platform (as defined in subsection (j)(3)).''.
(2) Nonapplication of relevant electorate to online
communications.--Section 304(f)(3)(A)(i)(III) of such Act (52
U.S.C. 30104(f)(3)(A)(i)(III)) is amended by inserting ``any
broadcast, cable, or satellite'' before ``communication''.
(3) News exemption.--Section 304(f)(3)(B)(i) of such Act
(52 U.S.C. 30104(f)(3)(B)(i)) is amended to read as follows:
``(i) a communication appearing in a news story,
commentary, or editorial distributed through the facilities
of any broadcasting station or any online or digital
newspaper, magazine, blog, publication, or periodical, unless
such broadcasting, online, or digital facilities are owned or
controlled by any political party, political committee, or
candidate;''.
(b) Effective Date.--The amendments made by this section
shall apply with respect to communications made on or after
January 1, 2018.
SEC. _07. APPLICATION OF DISCLAIMER STATEMENTS TO ONLINE
COMMUNICATIONS.
(a) Clear and Conspicuous Manner Requirement.--Subsection
(a) of section 318 of the Federal Election Campaign Act of
1971 (52 U.S.C. 30120(a)) is amended--
(1) by striking ``shall clearly state'' each place it
appears in paragraphs (1), (2), and (3) and inserting ``shall
state in a clear and conspicuous manner''; and
(2) by adding at the end the following flush sentence:
``For purposes of this subsection, a communication does not
make a statement in a clear and conspicuous manner if it is
difficult to read or hear or if the placement is easily
overlooked.''.
(b) Special Rules for Qualified Internet or Digital
Communications.--
(1) In general.--Section 318 of such Act (52 U.S.C. 30120)
is amended by adding at the end the following new subsection:
``(e) Special Rules Qualified Internet or Digital
Communications.--
``(1) Special rules with respect to statements.--In the
case of any qualified internet or digital communication (as
defined in section 304(f)(3)(D)) which is disseminated
through a medium in which the provision of all of the
information specified in this section is not possible, the
communication shall, in a clear and conspicuous manner--
``(A) state the name of the person who paid for the
communication; and
``(B) provide a means for the recipient of the
communication to obtain the remainder of the information
required under this section with minimal effort and without
receiving or viewing any additional material other than such
required information.
``(2) Safe harbor for determining clear and conspicuous
manner.--A statement in qualified internet or digital
communication (as defined in section 304(f)(3)(D)) shall be
considered to be made in a clear and conspicuous manner as
provided in subsection (a) if the communication meets the
following requirements:
[[Page S3260]]
``(A) Text or graphic communications.--In the case of a
text or graphic communication, the statement--
``(i) appears in letters at least as large as the majority
of the text in the communication; and
``(ii) meets the requirements of paragraphs (2) and (3) of
subsection (c).
``(B) Audio communications.--In the case of an audio
communication, the statement is spoken in a clearly audible
and intelligible manner at the beginning or end of the
communication and lasts at least 3 seconds.
``(C) Video communications.--In the case of a video
communication which also includes audio, the statement--
``(i) is included at either the beginning or the end of the
communication; and
``(ii) is made both in--
``(I) a written format that meets the requirements of
subparagraph (A) and appears for at least 4 seconds; and
``(II) an audible format that meets the requirements of
subparagraph (B).
``(D) Other communications.--In the case of any other type
of communication, the statement is at least as clear and
conspicuous as the statement specified in subparagraphs (A),
(B), or (C).''.
(2) Nonapplication of certain exceptions.--The exceptions
provided in section 110.11(f)(1)(i) and (ii) of title 11,
Code of Federal Regulations, or any successor to such rules,
shall have no application to qualified internet or digital
communications (as defined in section 304(f)(3)(D) of the
Federal Election Campaign Act of 1971).
(c) Modification of Additional Requirements for Certain
Communications.--Section 318(d) of such Act (52 U.S.C.
30120(d)) is amended--
(1) in paragraph (1)(A)--
(A) by striking ``which is transmitted through radio'' and
inserting ``which is in an audio format''; and
(B) by striking ``By radio'' in the heading and inserting
``Audio format'';
(2) in paragraph (1)(B)--
(A) by striking ``which is transmitted through television''
and inserting ``which is in video format''; and
(B) by striking ``By television'' in the heading and
inserting ``Video format''; and
(3) in paragraph (2)--
(A) by striking ``transmitted through radio or television''
and inserting ``made in audio or video format''; and
(B) by striking ``through television'' in the second
sentence and inserting ``in video format''.
SEC. _08. POLITICAL RECORD REQUIREMENTS FOR ONLINE PLATFORMS.
(a) In General.--Section 304 of the Federal Election
Campaign Act of 1971 (52 U.S.C. 30104) is amended by adding
at the end the following new subsection:
``(j) Disclosure of Certain Online Advertisements.--
``(1) In general.--
``(A) Requirements for online platforms.--An online
platform shall maintain, and make available for online public
inspection in machine readable format, a complete record of
any request to purchase on such online platform a qualified
political advertisement which is made by a person whose
aggregate requests to purchase qualified political
advertisements on such online platform during the calendar
year exceeds $500.
``(B) Requirements for advertisers.--Any person who
requests to purchase a qualified political advertisement on
an online platform shall provide the online platform with
such information as is necessary for the online platform to
comply with the requirements of subparagraph (A).
``(2) Contents of record.--A record maintained under
paragraph (1)(A) shall contain--
``(A) a digital copy of the qualified political
advertisement;
``(B) a description of the audience targeted by the
advertisement, the number of views generated from the
advertisement, and the date and time that the advertisement
is first displayed and last displayed; and
``(C) information regarding--
``(i) the average rate charged for the advertisement;
``(ii) the name of the candidate to which the advertisement
refers and the office to which the candidate is seeking
election, the election to which the advertisement refers, or
the national legislative issue to which the advertisement
refers (as applicable);
``(iii) in the case of a request made by, or on behalf of,
a candidate, the name of the candidate, the authorized
committee of the candidate, and the treasurer of such
committee; and
``(iv) in the case of any request not described in clause
(iii), the name of the person purchasing the advertisement,
the name, address, and phone number of a contact person for
such person, and a list of the chief executive officers or
members of the executive committee or of the board of
directors of such person.
``(3) Online platform.--For purposes of this subsection,
the term `online platform' means any public-facing website,
web application, or digital application (including a social
network, ad network, or search engine) which--
``(A) sells qualified political advertisements; and
``(B) has 50,000,000 or more unique monthly United States
visitors or users for a majority of months during the
preceding 12 months.
``(4) Qualified political advertisement.--
``(A) In general.--For purposes of this subsection, the
term `qualified political advertisement' means any
advertisement (including search engine marketing, display
advertisements, video advertisements, native advertisements,
and sponsorships) that--
``(i) is made by or on behalf of a candidate; or
``(ii) communicates a message relating to any political
matter of national importance, including--
``(I) a candidate;
``(II) any election to Federal office; or
``(III) a national legislative issue of public importance.
``(5) Time to maintain file.--The information required
under this subsection shall be made available as soon as
possible and shall be retained by the online platform for a
period of not less than 4 years.
``(6) Penalties.--For penalties for failure by online
platforms, and persons requesting to purchase a qualified
political advertisement on online platforms, to comply with
the requirements of this subsection, see section 309.''.
(b) Rulemaking.--Not later than 90 days after the date of
the enactment of this Act, the Federal Election Commission
shall establish rules--
(1) requiring common data formats for the record required
to be maintained under section 304(j) of the Federal Election
Campaign Act of 1971 (as added by subsection (a)) so that all
online platforms submit and maintain data online in a common,
machine-readable and publicly accessible format; and
(2) establishing search interface requirements relating to
such record, including searches by candidate name, issue,
purchaser, and date.
(c) Reporting.--Not later than 2 years after the date of
the enactment of this Act, and biannually thereafter, the
Chairman of the Federal Election Commission shall submit a
report to Congress on--
(1) matters relating to compliance with and the enforcement
of the requirements of section 304(j) of the Federal Election
Campaign Act of 1971, as added by subsection (a);
(2) recommendations for any modifications to such section
to assist in carrying out its purposes; and
(3) identifying ways to bring transparency and
accountability to political advertisements distributed online
for free.
SEC. _09. PREVENTING CONTRIBUTIONS, EXPENDITURES, INDEPENDENT
EXPENDITURES, AND DISBURSEMENTS FOR
ELECTIONEERING COMMUNICATIONS BY FOREIGN
NATIONALS IN THE FORM OF ONLINE ADVERTISING.
Section 319 of the Federal Election Campaign Act of 1971
(52 U.S.C. 30121) is amended by adding at the end the
following new subsection:
``(c) Each television or radio broadcast station, provider
of cable or satellite television, or online platform (as
defined in section 304(j)(3)) shall make reasonable efforts
to ensure that communications described in section 318(a) and
made available by such station, provider, or platform are not
purchased by a foreign national, directly or indirectly.''.
______