“Truth in Elections” Bill Proposes to Cast Light on Use of Personal Information to Influence Elections

Big Tech companies often have snappy mottos such as “Don’t be Evil” and “Do the Right Thing.” Given the massive influence on the electorate and our democracy that popular social media and internet search products have, we should probably not blindly assume that these online platform providers are always living up to their mottos. It is therefore incumbent that the electorate have the power to verify if these powerful platform providers are in fact putting their proverbial thumbs on the scale of our democracy in terms of unduly favoring their preferred political candidates or ballot measures. 

The good news is that the first bill of its kind has been introduced that would address a key facet of the influence of social media and other internet platforms on our democratic process.  California Senate Bill 746 (SB 746) — introduced in February of 2021 by State Senator Nancy Skinner — would look to provide transparency if and when a business uses personal information it has collected to influence consumers for a “political purpose” (i.e. for or against political candidates and/or ballot measures) based on the direction of an officer of that business.  Note this excludes commercial transactions on behalf of another person (e.g., political advertisements). 

This bill also represents the first major legislative enhancement to the recently passed California Privacy Right Act (CPRA), so I thought this would be a good topic to drill down in a blog post.  I also had a small role in raising awareness for this issue based on my discovery of Google providing biased search results for 2020 California ballot measures, so it is personally satisfying to hopefully see more safeguards for our democracy turn into law.

The Problem

Current California law is that a business can legally influence a campaign or political committee by making a cash or in-kind contribution, or by making an independent expenditure to a campaign or political committee, but either action needs to be disclosed.  California in fact has some of the strictest reporting requirements for monetary and non-monetary campaign contributions. This greatly benefits our democracy as we have transparency behind who is backing and funding a political candidate or ballot measure.

As we have seen from both the 2016 and 2020 elections, online platforms such as Google, Twitter and Facebook have massive influence on the electorate and our democracy.  For example, voters will likely be influenced if their Facebook news feed just shows “Con” articles about a political candidate.  Or in the case of Google, given that many consumers see Google’s top search results as the most authoritative sources of information on a given topic, and the Google “Knowledge Panels” (which appear to the right of search results) as a definitive executive summary of that topic, having only “Pro” leaning ballot measure search results and Knowledge Panels showing up at the top of the search results will certainly influence voters.

I saw firsthand the potential impact of internet platforms on our democracy when I worked as a volunteer in 2020 in support of Proposition 24 (aka the California Privacy Rights Act).  During the election season the top two Google search results when searching on any California Proposition were webpages from the California Secretary of State (SofS) and Ballotpedia.  In the case of the SoS, it was  the text from the Voter Information Guide (VIG) for that Proposition, and in the case of Ballotpedia, there was a dedicated page with detail analysis of Proposition.  Both pages had Pro and Con arguments for both, as well as neutral and non-partisan writeups of each Proposition. 

Yet I discovered that Google’s algorithm was picking out either Pro or Con arguments from those web pages and returning those as “snippets” (i.e. the description of the website) in the search results, versus displaying a neutral description of the ballot measure.  This clearly gave the impression to voters researching these ballot measures that the trusted and non-partisan SoS and Ballotpedia websites were taking a side on a given ballot measure.  Basically, it was the equivalent of the voter receiving their Voter Information Guide in the mail, and finding it had a big sticker on the front saying “Prop X Sucks” or “Prop Y is Great.” Here is an example:

After I flagged this to both Ballotpedia and the SoS, both eventually implemented a workaround that I alerted them to.  In fact, Politico reported that Ballotpedia had to change over 650 web pages after I had flagged this to Ballotpedia.  When asked to comment on why their algorithms were cherry-picking partisan arguments as web snippets from what were supposed to be neutral websites, Google waved this problem away in a statement to Politico.  To me, Google’s opinion was they were going to favor and highlight text that expressed “a point of view”, but to me when it comes to Voter Information Guides,  voters should not be served up biased content but be presented neutral descriptions found on those voter information web pages.  At the end of the day, it does not bode well for our democracy that internet platforms’ algorithms can easily put their thumbs on the scale regarding a candidate or ballot measure. 

But this situation can and truly could get worse.  Namely the internet companies could purposely and easily modify their algorithms to influence voter behavior against say a ballot measure that regulates them or a candidate that opposes their practices.  Businesses have in the past done dirty tricks to competitors (e.g., British Airways had employees call up Virgin Atlantic passengers and tell them their flight was delayed and rebooked them on British Airways) or have lied to and/or misled investigators.  When faced with an existential political threat, tweaking an algorithm can be easily done.

And, because this does not fall under California campaign disclosure laws, the internet platform providers would not have to disclose they are doing this!  As Californians for Consumer Privacy notes in a California Senate bill analysis of SB 746:

“[I]f a large social media company had a preferred candidate in an election, it could alter its algorithm to target specific voters with news reports and other types of information that favor the company’s preferred candidate — or portray the opposing candidate in a negative light.

Under current California law, such an action by a social media company would not have to be disclosed to the public, even though the action was designed to influence the outcome of the election, as long as the social media company was not coordinating directly with a campaign, and did not specifically encourage a consumer to vote for or against a specific candidate.”

While tech companies may say “don’t be evil,” it is probably in our interest to “trust but verify” them when it comes to our democracy.

SB 746 Addresses the Disclosure Gap

Senate Bill 746 (SB 746) would look to provide transparency if and when a business uses personal information it has collected to influence consumers for a “political purpose” (i.e. for or against political candidates and/or ballot measures) based on the direction of an officer of that business.  To be clear this bill excludes commercial transactions on behalf of another person (e.g., political advertisements).

In other words, this bill is very focused on whether an online platform provider is purposely trying to leverage consumers’ personal information to bend search results and news feeds and/or target and amplify positive or negative feedback on candidates and ballot measures for the direct political benefit of the online platform itself (e.g., opposing ballot measures or candidates that want to regulate its platform). 

SB 746 addresses the disclosure gap by allowing consumers to have the “right to know” if a business is using the consumer’s personal information for political purposes.  i.e., a consumer can request to a business whether that business uses their personal information for a political purpose, and if yes, the business must disclose the name of candidates or ballot measures whose support or opposition it was for.  It also requires businesses who engage in political influence leveraging consumers’ personal information to make annual disclosures to the Attorney General or the California Privacy Protection Agency.

The text of law is quite straightforward:  it basically adds a new Section 111 to the text of the CPRA giving consumers the above “right to know.”  This enhancement to the CPRA should not be a burden to businesses in that they already have to respect consumers’ CCPA/CPRA consumer privacy rights vis a vis the use of their personal information.  In effect SB 746 builds upon the rights found in the CCPA and CPRA and further extends consumers ability to know and control how their personal information is being used. 

And in making this addition we could now close this gap in political reporting requirements.  As Nancy Skinner, the author of SB 746, states in the analysis of her bill:

“Just like with other types of media, voters should have the right to know if they’re being purposely presented with information designed to influence how they vote. SB 746 addresses this new gap in political reporting requirements and restores public trust in online content by allowing voters to know if they are being manipulated in partisan ways. Specifically, SB 746 promotes Internet transparency by requiring online platforms that use personal information to directly target voters on behalf of a candidate or ballot measure to disclose that activity to voters if they request it. Taking this step is critical to ensuring that evolving technological capabilities do not interfere with our Constitutional right to free and fair elections.”

In effect this bill provides greater transparency — hence the bill’s name is “Truth in Elections” — and gives us another safety rail to our democracy.

Current Status of SB 746

SB 746 has passed through both the California State Senate’s Judiciary and Appropriations Committees.  The next step is SB 746 will be taken up on the Senate Floor. If it passes the State Senate, SB 746 will move on to the State Assembly and must go through various policy committees including the Assembly Privacy committee.  If it passes those committees, it will need to go through Assembly Appropriations and then the Assembly Floor.  Then if passes the Assembly, it will be on the Governor’s desk. 

Summary

As is the case with TV or radio political ads, or with campaign mailers, voters should be able to know if they’re being purposely targeted to vote a certain way and who is doing the targeting.  Hence, we have campaign disclosure laws that shine a light on who is supporting what ballot measures or candidates.  SB 746 extends those disclosure laws to online platform providers who may be using our personal information to subtly influence us to support or oppose candidates and/or ballot measures based on those businesses’ own political preferences.  SB 746 also further extends consumers’ “right to know”.  Privacy and democracy go hand-in-hand, and both need protecting, and SB 746 helps in that regard.   

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