As Russians Hacked U.S. Election, Did Big Tech Firms Break Any Laws?

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the Trump campaign’s digital director Brad Parscale, who sat for a lengthy interview for CBS news magazine “60 Minutes,” aired on Oct. 8. In the interview, Parscale alleged that the social media companies were willing to supply him with staffers who were Republicans, whom he viewed as more likely to support the election of Donald Trump.

It’s not unusual for social media companies to provide big advertisers with on-site assistance from staffers. But Parscale’s account—describing Facebook and Twitter employees as “embedded” in the campaign—could mean that those people were often in a position to observe campaign workers, managers, advisors, data analysts, supporters, suppliers, and other visitors—in addition to the online content the campaign worked on. FEC regulations not only forbid foreign nationals from donating to campaigns, but also bar them from decision-making roles at any organization involved in election-related activities.

In the “60 Minutes” interview, Parscale said the campaign did not collaborate with Russians. The House intelligence committee, which is investigating Russian election interference, was slated to interview Parscale on Tuesday, Oct. 24, the Wall Street Journal reported.

One of the data analytics firms that also sent workers into the Trump campaign offices, Cambridge Analytica, has been swept up in congressional investigations of the campaign’s possible ties to Russia, the New York Times reported.

Cambridge Analytica’s CEO, Alexander Nix, allegedly contacted WikiLeaks founder Julian Assange during the summer of 2016 to ask for e-mails of Democratic Party candidate Hillary Clinton’s, The Daily Beast reported last week. (Assange is Australian, and WikiLeaks is an international organization with suspected ties to Russian hackers.) According to a Wired story, the House committee is poring over Cambridge Analytica staffers’ e-mails for evidence of foreign contacts.

Neither Vandewalker nor Noti said they have seen any signs that Facebook, Twitter, or any of their workers had reason to believe that Trump’s campaign was collaborating with foreign nationals. But they have some advice for any tech employees who might someday detect foreign involvement in a political campaign or advertising purchase they were assisting.

Vandewalker says an employee or company that suspects foreign involvement in an election-related activity would be well-advised to withdraw: “It could put someone in the position of seeing foreign collusion.” Even in the absence of legal jeopardy, the company’s reputation could be harmed, he says.

“It certainly wouldn’t be good in the court of public opinion,” Vandewalker says.

Noti says he would advise workers who saw signs of foreign activity to tell their bosses. “You would not want your employer to face liability,” he says. Employers can be held responsible for the actions of their employees, he says.

Ultimately, it may be unlikely that tech companies or their employees will be charged with crimes based on acts that helped foreign entities during the 2016 campaign, Noti says. But if that happened, they might have a handy defense.

“For a U.S. person, it’s only a crime if you know you’re breaking the law,” Noti says. That defense claim—a lack of knowledge that foreign involvement in a U.S. election is illegal—would be more plausible for some people than for others, such as campaign professionals, he says. However, a company or employee might still face an enforcement action by the FEC, which can impose fines.

But come the next big election cycle, Noti says, companies are on notice that foreign influence on U.S. elections is illegal.

“Looking forward, for social media companies, I think it would be much harder if similar activity happened in the next election, for them to say they didn’t know what was going on,” Noti says.

For his part, Vandewalker sees a low probability that tech companies will face prosecution related to the 2016 campaign. “At this stage, it’s not helpful to look at social media companies as potential criminal defendants,” Vandewalker says. “I think they were caught off guard.” He says it’s best to focus on the reforms needed for the future.

Two U.S. Senators, Mark Warner and Amy Klobuchar (D-MN), are already proposing a bill that would require major online ad-hosting companies such as Facebook, Twitter, and Google to reveal the names of political ad buyers, as Politico reported.

Before the 2016 election season, Noti says, Facebook had forcefully resisted proposals before the Federal Elections Commission that would have required digital content hosts to disclose the names of ad buyers on the face of the ads, the way TV and radio outlets are required to do. Facebook claimed it should qualify for an exemption from disclosure that applies to campaign buttons, which are arguably too small to contain both a campaign message and the name of the entity that paid for the buttons.

“Facebook’s aggressive position laid the groundwork for the situation we had in 2016,” Noti says. “Nobody knew who funded the ads.”

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