Californians for Consumer Privacy Chair Alastair Mactaggart Raises Concerns about Potential for Search and Social Media Companies to Manipulate Elections

November 20, 2018

Mactaggart Sponsored the California Consumer Privacy Act, a Ballot Measure that Became California Law

Legal Memo Finds No Disclosure Requirements for Search and Social Media Corporations if Altering Search Results or Newsfeeds to Promote a Preferred Political Candidate or Cause

Oakland, Calif. – As more stunning revelations come out in the New York Times about the ability of corporations like Facebook and Google to influence the outcome of elections beyond even the scope of the Cambridge Analytica scandal, Chairman of Californians for Consumer Privacy Alastair Mactaggart is raising new concerns about the lack of transparency around their ability to influence elections. 

“Right now, it’s fully legal for these corporations to alter the news we see and the search results we find, and use that to promote their own preferred cause or candidate, with no reporting requirements,” said Mactaggart. “This has profound implications for democracy.” 

Mactaggart asked his attorneys at Remcho,Johansen and Purcell to investigate a number of legal questions related to campaign disclosure requirements.  

A principal question was: Would it be permissible under California law for a search engine or social media company to try to change the outcome of an election by manipulating search results or newsfeeds; and if so, would they need to disclose such efforts?  

Attorney James Harrison wrote: “[If a] search engine...modif[ied] its algorithm to promote stories about crime to local voters in order to boost the prospects of a tough-on-crime candidate in that jurisdiction…the search engine would not be communicating directly about the candidate; rather, it would be using its platform to sway the electorate by promoting stories consistent with that candidate’s position on an issue.Because this activity would not amount to “express advocacy,” under even the broadest definition, there is nothing under California law that would require disclosure of this activity.”

For the complete memo, click here

“Put more plainly,” Mactaggart said, “this means companies with the biggest trove of personal information and the most sophisticated data scientists ever assembled under one corporate roof, can use everything they know about you to try to elect candidates of their choosing—and as long as they don’t coordinate directly with a candidate, it’s fully legal, and they have no reporting requirements. Californians should have a right to know if their personal information is being used by the Googles and Facebooks of the world to secretly influence elections. It’s vital to democracy, and while we have no evidence this has happened yet, we also have no evidence it hasn’t—because we have no way of knowing. Californians should have the right to know something this important.”  

Mactaggart continues to be at the forefront of crafting online consumer protections, recently testifying before the United States Senate Committee on Commerce, Science and Transportation about the California Consumer Privacy Act (AB 375 Chau, Hertzberg, Dodd). 

Mactaggart gathered 629,000 signatures to qualify his measure for the November ballot amid public outcry around Facebook’s Cambridge Analytica data breach. Upon seeing this overwhelming public support, the California Legislature worked with Mactaggart to enact an even more comprehensive version of his ballot measure, in exchange for his agreement to withdraw the initiative. It was signed into law this June by California Governor Jerry Brown,giving nearly 40 million people unprecedented privacy rights.

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