Safeguarding Elections in the Age of Misinformation

In the fall of 2022, Meta (formerly Facebook) lost a suit filed by Washington State Attorney General Bob Ferguson concerning political ad transparency. As a result, the $300 billion company was ordered to pay nearly $25 million in fines and over $10 million to cover attorney fees for its 822 violations of Washington state law.

These transgressions surfaced because people were paying attention, such as Eli Sanders, 2L, a Pulitzer Prize-winning journalist, and Tallman Trask, ‘22, a practicing attorney.

“I first got interested, like many Americans, when I learned that foreign powers had bought election ads to influence the 2016 presidential election,” says Sanders. “It seemed like a glaring loophole.” He became even more concerned when the deadlocked Federal Election Commission did little to close it. It was the same story in the U.S. Congress with repeated attempts and failures to pass the Honest Ads Act, a bill aimed at updating campaign finance laws to address online advertising and the potential for ad purchasing by foreign entities.

As a longtime journalist, Sanders understood the power of Washington state's unusually strong law regarding election ads. Seeing who bought ads, how much they spent, and who they targeted gave vital information on election integrity. He wondered whether this decades-old transparency measure, initiated and passed by voters in 1972 along with the creation of the Public Disclosure Commission (PDC) for interpretation and enforcement, would apply to digital platforms — or maybe the law needed an update for the digital era. So, in the winter of 2017, he requested Washington state political ad information from Facebook, Twitter, Google and Pandora to see what would happen.

“That began this very long saga,” says Sanders. In the process, he reported the unfolding story for The Stranger and in a newsletter project he called Wild West, designed to give a fuller picture of “the legal shootouts that could redefine rules for the internet.” One of the people he wrote about was Trask.

Trask knew about Washington’s ad law from working on political campaigns. He noticed that online advertisers weren't in compliance when he couldn’t find consistent reporting from Facebook that matched what campaigns said they were doing.

Serving the Public Interest

Working independently, Sanders and Trask each filed complaints with the PDC pointing to the lack of transparency and failure of these companies to follow the law. From there, the PDC began its follow-up.

For Trask, the complaint and subsequent case defined his time in law school. “It was literal bookends,” he says. “Because of the complaint, I had lots of opportunities. It's important to me because the law helps keep people honest and puts everyone on an even playing field.”

This motivation impressed retired King County Superior Court Judge William Downing, a distinguished alumnus of the University of Washington School of Law, J.D. 1978, appointed to the PDC by Governor Jay Inslee in 2018. He's recognized for his longstanding commitment to public access and democratic values.

“Most enforcement actions arise from an opposing candidate or their staff wanting to get someone in trouble,” he says. “Tallman and Eli, on the other hand, were purely looking to serve the public interest.”

Beyond a shared drive to serve the public interest, Downing, Sanders and Trask have other things in common. When accepted to law school, they all felt that the UW valued them for their real-world experience. In turn, they see their experience, combined with a UW legal education, furthering their ability to make an impact.

Downing came to law school in the 1970s after working as a deckhand on commercial fishing boats. This informed a law school project on deterrence that involved research into industry attitudes toward Native American fishing rights and the common belief that poaching violations could be justified.

As a Gates Scholar, Sanders is encouraged to do public service and intends to use his degree to increase his effectiveness as a journalist. So far, he's making the connections he hoped to. “UW professors are doing interesting work at the intersection of law, technology and democracy,” he says, noting that he worked over the summer as a legal fellow for the Center for an Informed Public.

At first, Trask thought he'd return to working in policy and communications after getting his degree, but that's since changed. He’s instead decided to practice law to see how he can make a difference, keeping in mind that the law holds people accountable and upholds systems that fail to do that.

Valuing the Push and Pull

“It’s essential that there be no wall between the people charged with enacting and applying the law and the public being served,” says Downing.

A key moment for Sanders and Trask in their complaints to the PDC occurred with a proposed settlement in 2020. “It would have let Facebook pay a $75,000 fine, admit no guilt, and make no binding promises to follow Washington state law going forward,” says Sanders. He reported about the issue before the commissioners voted on it and believes this could have had something to do with their unanimous vote to refer the case to the Attorney General's Office. Trask too spoke and wrote in opposition to the settlement.

Downing adds another perspective. “An undercurrent in the decision-making was how to get the Facebooks and Googles with tremendous knowledge to work with us to create systems where this information is available to the public.” He expresses disappointment that there has been no cooperation and that Meta is continuing to contest the case in the appellate courts.

He also underlines the importance of people like Sanders and Trask. “It's so helpful to know that journalists and citizens are watching every action,” says Downing. “A lot of these things require refinements in law, and the role of citizens at the PDC and contacting local senators and representatives is critical.”

The fine against Meta has the potential to be far-reaching. Other states are watching and there’s an ongoing need to evolve the law. “Things change so fast,” says Downing. “Right now, cosmetic or jewelry influencers on Instagram and Tik Tok may be receiving dollars from campaigns to steer public opinion. How does that fit into the whole scheme of commercial advertising?” Democracy depends on people continuing to ask these kinds of questions, pay attention and find answers.