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AB-868 Political Reform Act of 1974: digital political advertisements.(2023-2024)



Current Version: 08/14/23 - Amended Senate

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AB868:v96#DOCUMENT

Amended  IN  Senate  August 14, 2023
Amended  IN  Senate  June 27, 2023
Amended  IN  Assembly  March 30, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 868

Introduced by Assembly Member Wilson
(Coauthor: Assembly Member Lee)

February 14, 2023

An act to amend Section 84504.6 of, and to add Article 6 (commencing with Section 84550) to Chapter 4 of Title 9 of, the Government Code, relating to the Political Reform Act of 1974.


LEGISLATIVE COUNSEL'S DIGEST


AB 868, as amended, Wilson. Political Reform Act of 1974: digital political advertisements.
The Political Reform Act of 1974 provides for the comprehensive regulation of campaign financing and activities. Among other things, the act requires specified disclosures in advertisements regarding the source of the advertisement. Existing law requires an online platform that disseminates committees’ online platform disclosed advertisements to maintain, and make available for online public inspection, a record of any advertisement disseminated on the online platform by a committee that purchased $500 or more in advertisements during the preceding 12 months, as specified. Existing law establishes the Fair Political Practices Commission that enforces the Political Reform Act of 1974.
This bill would enact the Digital Advertisement Transparency and Accountability Act, or DATA Act. The bill would, beginning on the first January 1 that is at least 60 days after the Fair Political Practices Commission certifies a system for accepting and maintaining such reports, require a committee that pays for a digital advertisement, as defined, to appear on an online platform to submit to the commission a copy of the digital advertisement and specified information, including, among other things, the name and identification number of the committee that paid for the advertisement, information relating to the subject of the advertisement, the name of the online platform or platforms on which the digital advertisement was displayed, and the amount paid or agreed to be paid to the online platform for the advertisement. The bill would require the information to be submitted to the commission in accordance with existing deadline for the submission of semiannual statements and preelection statements, if the committee spends $1,000 or more during the period covered by the statement. The bill would require the commission to make information submitted pursuant to this act available in a centralized and publicly accessible online format, as specified. The bill would, upon certification of the above system, eliminate the existing requirement for an online platform that disseminates committees’ online platform disclosed advertisements and that receives $50,000 or more from digital advertisement sales during a calendar month to maintain and make accessible for public inspection specified records of advertisements. Instead, the bill would require an online platform to transmit to the commission specified information regarding digital advertisements, and to retain the information for no less than four years for specified purposes.
Existing law makes a knowing or willful violation of the Political Reform Act of 1974 a misdemeanor. By creating new requirements in that act, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
The Political Reform Act of 1974, an initiative measure, provides that the Legislature may amend the act to further the act’s purposes upon a 2/3 vote of each house of the Legislature and compliance with specified procedural requirements.
This bill would declare that it furthers the purposes of the act.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Political campaigns are increasingly using digital media, such as internet websites and social media, as a means of delivering campaign advertisements and persuading voters to support their campaigns.
(b) Digital campaign advertisements present unique challenges to regulators, such as the Fair Political Practices Commission, who are charged with ensuring that voters receive timely and accurate information about who is responsible for the content of the advertisement and the payments associated with producing and distributing the advertisement.
(c) Because of the impermanent nature of these ads, and because these ads are increasingly appearing in new digital spaces, it can be difficult and sometimes impossible for a voter to track down an ad they saw previously or to find other digital ads associated with a campaign or election.
(d) Although current law requires online platforms to maintain and make available a record of some of the campaign advertisements disseminated on the platform, these current requirements do not capture all digital ads run on those platforms and the different ways in which platforms maintain these records has made it difficult for the public, academics, and others to meaningfully utilize this information.
(e) Digital campaign advertisements are also used as vehicles for misinformation and disinformation, and the nature of these ads makes it difficult for the public, media, researchers, government agencies, and watchdog groups to find these ads, correct false statements, and hold speakers accountable.
(f) Creating a public record of digital campaign advertisements will facilitate transparency of those advertisements for the benefit of the public, journalists, academics, watchdog groups, and other persons seeking to better understand who is trying to influence voters and the outcome of elections.
(g) It is therefore the intent of the Legislature to require the Fair Political Practices Commission to collect and make publicly available copies of, and information about, specified digital political advertisements.

SEC. 2.

 Section 84504.6 of the Government Code is amended to read:

84504.6.
 (a) For purposes of this article, the following terms have the following meanings:
(1) “Online platform” means a public-facing internet website, web application, or digital application, including a social network, ad network, or search engine, that sells advertisements directly to advertisers. A public-facing internet website, web application, or digital application is not an online platform for purposes of this article to the extent that it displays advertisements that are sold directly to advertisers through another online platform.
(2) (A) “Online platform disclosed advertisement” means either of the following:
(i) A paid electronic media advertisement on an online platform made via a form of electronic media that allows users to engage in discourse and post content, or any other type of social media, for which the committee pays the online platform, unless all advertisements on the platform are video advertisements that can comply with Section 84504.1. Individual posts, comments, or other similar communications are not considered online-platform-disclosed advertisements if they are posted without payment to the online platform.
(ii) A paid electronic media advertisement on an online platform that is not any of the following:
(I) A graphic, image, animated graphic, or animated image that the online platform hosting the advertisement allows to hyperlink to an internet website containing required disclosures, as described in subdivision (b) of Section 84504.3.
(II) Video, audio, or email.
(B) Electronic media advertisements that are not online-platform-disclosed advertisements as defined in subparagraph (A) shall follow disclosure requirements for electronic media advertisements under Section 84504.3.
(b) A committee that disseminates an online-platform-disclosed advertisement or a digital advertisement as defined in Section 84551 shall do all of the following:
(1) Upon requesting the dissemination, expressly notify the online platform through which the advertisement would be disseminated, using the online platform’s chosen notification method, that the advertisement is an advertisement as defined in Section 84501.
(2) (A) Provide the online platform with the disclosure name of the committee.
(B) For purposes of this section, “disclosure name” means the text required by Section 84503, followed by a colon, followed by, surrounded in quotation marks, the name of the committee as it appears on the most recent statement of organization filed pursuant to Section 84101 or the name that the filer is required to use on campaign statements pursuant to subdivision (o) of Section 84211. If no disclosure text is required by Section 84503, “disclosure name” means the name of the committee as it appears on the most recent statement of organization filed pursuant to Section 84101 or the name that the filer is required to use on campaign statements pursuant to subdivision (o) of Section 84211.
(C) If the disclosure name changes due to a change in the top contributors or the name of the committee, the committee shall provide the online platform with an updated disclosure name within five business days.
(3) Provide the online platform with the name of the candidate to which the advertisement refers and the office to which the candidate is seeking election, as applicable, or number or letter of the ballot measure and the jurisdiction to which the advertisement refers.
(4) Provide the online platform with the name of the committee that paid for the advertisement and identification number assigned to the committee by the Secretary of State pursuant to subdivision (a) of Section 84101.
(c) An online platform that disseminates a committee’s online platform disclosed advertisement shall do one of the following:
(1) Display “Paid for by” or “Ad Paid for by” followed by the disclosure name provided by the committee, easily readable to the average viewer, located adjacent to any text stating that the advertisement is an advertisement or is promoted or sponsored. The online platform may display only 100 or more characters of the disclosure name if it is followed by a “…” that is clearly clickable and that links to a page as described in paragraph (3).
(2) The online platform may instead display a hyperlink, icon, button, or tab with the text “Who funded this ad?,” “Paid for by,” or “Ad Paid for by” that is clearly clickable in the same or similar font and in at least the same font size as the online platform’s text, and easily readable to the average viewer, stating that the advertisement is an advertisement or is promoted or sponsored, that links to a page as described in paragraph (3).
(3) Hyperlinks, icons, buttons, or tabs used for the purposes described in paragraphs (1) and (2) shall be linked to the profile or landing page of the committee that paid for the advertisement; to another page to which the average viewer would normally navigate to view additional information about a committee containing the disclosure name in a manner that is easily seen and readable by the average viewer; or to an internet website containing the disclosure required by subdivision (d) of Section 84504.3.
(d) (1) An online platform that disseminates committees’ online-platform-disclosed advertisements shall do both of the following:
(A) Maintain, and make available for online public inspection in a machine readable format, a record of any advertisement disseminated on the online platform by a committee that purchased five hundred dollars ($500) or more in advertisements on the online platform during the preceding 12 months. Each record shall contain all of the following:
(i) A digital copy of the advertisement.
(ii) The approximate number of views generated from the advertisement and the date and time that the advertisement was first displayed and last displayed.
(iii) Information regarding the range charged or the total amount spent on the advertisement.
(iv) The name of the candidate to which the advertisement refers and the office to which the candidate is seeking election, as applicable, or number or letter of the ballot measure and the jurisdiction to which the advertisement refers.
(v) The name of the committee that paid for the advertisement, and the identification number assigned to the committee by the Secretary of State pursuant to subdivision (a) of Section 84101, if the committee is assigned an identification number.
(B) (i) Display a prominent button, icon, tab, or hyperlink with the text “View Ads” or similar text in one of the following locations: (I) near the top of a profile, landing page, or similar location of a committee that paid for an advertisement in a position that the average viewer will readily see it upon viewing that page; (II) on a page that displays the committee’s profile information or biographical information; (III) or on a page on which the average viewer would normally navigate to view additional information about a committee.
(ii) The button, icon, tab, or hyperlink shall link to a page clearly showing all of the advertisement records required by subparagraph (A).
(2) (A) The information required by paragraph (1) shall be made available as soon as practicable and shall be retained by the online platform for no less than four years.
(B) Paragraph (1) shall become inoperative on the date that Section 84553 becomes operative, after which time the online platform shall retain the information described in this section for no less than four years or transfer the information to the commission in a form and manner prescribed by the commission.
(3) Beginning on the date that Section 84553 becomes operative, an online platform that disseminates a committee’s online-platform-disclosed advertisements shall meet all of the following requirements:
(A) Transmit to the commission a record of any advertisement disseminated on the online platform by a committee that purchased five hundred dollars ($500) or more in advertisements on the online platform during the preceding 12 months. Each record shall contain all of the following:
(i) The name of the committee that paid for the advertisement.
(ii) The disclosure name as provided by the committee and the identification number assigned to the committee by the Secretary of State pursuant to subdivision (a) of Section 84101, if the committee is assigned an identification number.
(iii) One Either of the following, as applicable:
(I) The name of the candidate identified in the advertisement, whether the advertisement supported or opposed the candidate, and the office sought by the candidate.
(II) The number or letter designation of the ballot measure, and whether the advertisement supported or opposed the measure.

(III)

(iv) The name of the online platform or platforms on which the digital advertisement was displayed.

(IV)

(v) The amount paid or agreed to be paid to the online platform for the advertisement.

(V)

(vi) The date or date range during which the advertisement was displayed.

(VI)

(vii) A copy of the advertisement.

(VII)

(viii) The name, title, and contact information of the person submitting the information.
(B) An online platform shall retain records of the information required to be sent to the commission pursuant to this subdivision for no less than four years for audit and other legal purposes.
(e) An online platform that creates a mechanism for a committee requesting dissemination of an online-platform-disclosed advertisement to expressly notify the online platform whether the advertisement is an advertisement as defined in Section 84501 and to provide all information necessary for the online platform to comply with the requirements of this section may rely in good faith on the information provided by the committee to the online platform to satisfy the online platform’s obligations under subdivisions (c) and (d).

SEC. 3.

 Article 6 (commencing with Section 84550) is added to Chapter 4 of Title 9 of the Government Code, to read:
Article  6. Public Record of Digital Campaign Advertisements

84550.
 This article shall be known, and may be cited, as the Digital Advertisement Transparency and Accountability Act, or DATA Act.

84551.
 For purposes of this article, the following definitions apply:
(a) “Digital advertisement” means a paid advertisement, as defined in Section 84501, that appears in a digital format, including on an internet website, digital application, web application, or connected television platform.
(b) “Online platform” means a public-facing internet website, web application, digital application, or connected television platform, including a social network, ad network, or search engine, that sells advertisements directly to advertisers. “Online platform” does not include a public-facing internet website, web application, or digital application to the extent that it displays advertisements that are sold directly to advertisers through another online platform.

84552.
 (a) This article applies to digital advertisements supporting or opposing a candidate or candidates for elective state office or a state ballot measure or ballot measures.
(b) It is the intent of the Legislature to expand this article with future legislative action to include other kinds of advertisements or communications, including, but not limited to, advertisements for local candidates and measures and nondigital advertisements.

84553.
 (a) A committee that pays for a digital advertisement that is not an online-platform-disclosed advertisement as defined in Section 85404.6 shall submit to the commission, in a format specified by the commission, all of the following information:
(1) The name of the committee that paid for the advertisement.
(2) The identification number assigned to the committee by the Secretary of State pursuant to subdivision (a) of Section 84101, if the committee is assigned an identification number.
(3) One of the following, as applicable:
(A) The name of the candidate identified in the advertisement, whether the advertisement supported or opposed the candidate, and the office sought by the candidate.
(B) The number or letter designation of the ballot measure, and whether the advertisement supported or opposed the measure.
(4) The name of the online platform or platforms on which the digital advertisement was displayed.
(5) The amount paid or agreed to be paid to the online platform for the advertisement.
(6) The date or date range during which the advertisement was displayed.
(7) A copy of the digital advertisement.
(8) The name, title, and contact information of the person submitting the information.
(b) A committee shall submit the information specified in subdivision (a) in accordance with the deadlines for semiannual statements pursuant to Section 84200 and preelection statements pursuant to Section 84200.8. A committee shall submit the information specified in subdivision (a) if the committee spends one thousand dollars ($1,000) or more on digital advertisements during the period covered by the statement.
(c) A committee may contract with an online platform to submit copies of the advertisement and other information required by subdivision (a) to the commission on behalf of the committee.
(d) This section shall become operative on the first January 1 that is at least 60 days after the commission certifies a system for accepting and maintaining the information submitted in accordance with this section as required pursuant to Section 84554.

84554.
 (a) The commission shall make the information submitted pursuant to Section 84553 available in a centralized and publicly accessible online format.
(b) The commission shall maintain information for a digital advertisement as required pursuant to subdivision (a) for no less than 12 years from the date that information was first submitted to the commission.
(c) The information submitted pursuant to Section 84553 shall be available to the public in a user-friendly format that includes search capabilities, including filtering by various parameters, and the ability to download raw data. Search and filter parameter categories shall include, but are not limited to, committee payor payer name, dates the advertisements ran, the candidate or ballot measure at issue, the platforms used, keywords, and content.

84555.
 If a committee submits the information specified in subdivision (a) of Section 84553 after the prescribed deadline, the committee shall be liable in the amount of ten dollars ($10) per day after the deadline until the information is submitted. This penalty shall apply in addition to any other penalties or remedies established by this chapter, but shall be the exclusive administrative penalty or remedy for a violation of this article that is unintentional, including an inadvertent or negligent violation.

SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SEC. 5.

 The Legislature finds and declares that this bill furthers the purposes of the Political Reform Act of 1974 within the meaning of subdivision (a) of Section 81012 of the Government Code.