Washington Attorney General Bob Ferguson. (GeekWire File Photo / Dan DeLong)
[Editor’s Note: This story originally appeared in journalist Eli Sanders’ “Wild West” newsletter, which covers internet-related legal issues. Subscribe here.]
Think how fast the Google search results come in. “Practically immediately” has long been a corporate goal. At this moment, Google often combines results with targeted ads. Sometimes these ads are political.
University of Washington law student Tallman Trask (photo via Wild West newsletter)
Now think about how long Tallman Trask, a sophomore law student at the University of Washington, waited to get information from Google about all of the political ads the company sold for the Washington state election in 2019 .
According to Washington state law, the information Trask searches for should be readily available to him within 24 hours of each Google ad being originally distributed. But Trask has now waited 16 months and, according to a lawsuit filed last week by Washington Attorney General Bob Ferguson, Trask has still not received a full response.
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Why can’t Google answer basic questions about political ads as quickly as its search engine can answer other questions? Attorney General Ferguson wants to know.
“Google is one of the largest companies in the world,” the AG recently told the Seattle Times, “and should be able to figure out how to comply with our campaign funding laws.”
This is Ferguson’s second lawsuit against Google over this issue. It comes, as Wild West predicted, in addition to Ferguson’s second lawsuit against Facebook over political advertisements. This case is currently going through the discovery phase in the King County Superior Court, with Facebook facing some pretty interesting questions from attorneys for the AG’s office.
Google and Facebook have both settled similar political advertising lawsuits that Ferguson filed back in 2018. They each paid $ 200,000 but avoided any admission of guilt. Now that Ferguson is tracking Google and Facebook for repeated violations (which the AG regards as “very serious”), the possibility of comparable comparisons seems slim. Ferguson is currently calling for injunctions, according to which each of the two technology giants must comply with the campaign funding law in the US state of Washington, as well as possible financial sanctions.
These twin cases are now being conducted against a backdrop of growing concerns that Google and Facebook (at least in terms of global users) are becoming more powerful and populous than the state and national governments that are trying to regulate them. “The sovereign state of Facebook against the world,” said Axios recently.
For Trask, however, the legal problem is straightforward: Washington law requires Google to hand over funding and keep records of political ads, but Google doesn’t abide by it. “Washington law gives people the right to see records of ad sales,” Trask said, “and exercising that right shouldn’t require more than a year of delay, a couple of tires, and the involvement of the two Public Disclosure Commissions” – which Trask’s case was investigated for seven months – “and the AG’s office.”
I’ve said it before, and I’ll say it again, all of you, please don’t break Washington’s campaign funding disclosure laws. They’ve been around for decades and they really aren’t that complicated (although they are a bit unique). https://t.co/MtqW20tUkc
– Tallman Trask (@TallmanIV) February 25, 2021
In a statement to Wild West, Google continued to rely on a Washington state ban on political ads announced in June 2018 (immediately after Google was hit by Ferguson’s first legal battle).
“We do not accept ads for elections in Washington state,” Google said in the statement. “Advertisers who submit these ads are against our policies. We take steps to block such ads and remove harmful ads if we find them. We have worked with the Washington Public Disclosure Commission on these issues and look forward to defending this litigation. “
In the lawsuit filed last week, Attorney General Ferguson points out that while Google says it doesn’t accept ads for elections in Washington state, it has sold many of them since the ban went into effect. According to the AG, 57 local candidates and committees have made 188 payments to Google for political ads since June 2018 – the month the Google ban began – bringing in a total of $ 461,334 for the company. This is potentially a negligible source of income for Google, which has a market cap of around $ 1.3 trillion as of late. However, this is a clear indication that Google’s advertising ban is not working.
Ferguson only knows that all of these Google ads are there because campaigns and candidates themselves were required to report them to the Public Disclosure Commission. Also, to address the problem of ads that are not reported by their buyers, Washington state law requires “commercial advertisers” like Google to post full political ads. If companies like Google don’t do this, the auditing function provided for in this part of the law collapses and the opportunities for dark money increase, as the AG explains in its lawsuit:
Trask said that after 16 months and two state investigations, he had made a strong impression that “even Google is not entirely sure how many Washington political ads they sold in 2019.”
A request for Google ad information that I made two years ago also appears in the AG’s lawsuit. In March 2019, as part of my reporting, I asked for “any information that Google is legally required to disclose” about a small off-season initiative in Spokane.
The measure on the Spokane ballot involved a fairly common idea: to raise property taxes to fund the police and fire department increases. The victorious side, calling itself “Yes for Public Safety”, reported that it had spent several thousand dollars on allegedly banned Google ads. I noticed and was curious what their money had brought them.
To date, Google has not given me any of the political ads information I requested. When investigators checked with the Public Disclosure Commission, Google told them that a Spokane union was behind the campaign and had spent $ 4,665 on ads, resulting in 6.2 million Spokane ad impressions.
Only about 210,000 people live in Spokane. Only about 40,000 people voted in these February elections. For me, this example shows that choosing a small rural town is tacitly inundated by a tsunami of digital advertising, why the public should be able to learn from the digital platforms themselves the true extent of targeted political advertising.
In court records, Facebook stated that Washington State is demanding too much information from online ad sellers, resulting in a disclosure system that is “onerous” and “against the first amendment.” Facebook also claims that Section 230, the much-discussed granting of specific immunity to digital platforms, prevents Facebook from being held accountable to Washington State’s campaign funding law in the same way as a radio station, television station, or a newspaper.
When Google submits its response to the AG’s new lawsuit in the coming weeks, will its arguments be similar to Facebook’s? Or will these two tech giants, accused by antitrust investigators of collaborating on advertising matters in the past, go their separate ways if they battle with the AG over the validity of Washington State’s disclosure law? We’ll find out in a moment.
However, the final results in these cases are unlikely to come soon. As with other technical regulation battles in Australia, North Dakota, and DC, a recurring lesson from this particular argument was that digital titans, with essentially infinite resources for lawyers and lobbyists, can find plenty of ways to delay and distract while the world is moving turns.
Trask has already waited 16 months for election-related records, which Washington state law should have released almost immediately. I’ve waited more than 23 months. The wait will likely continue, but the possible legal outcomes could have ramifications well beyond two local requests for political ad records.
The resolutions of these new Google and Facebook cases say a lot about who the first amendment really protects, what Section 230 really prohibits, and how far a state government can really go when it comes to regulating its own elections in the digital world Age.