Microsoft Wants Confirmation That Helping Politicians Not Get Hacked Isn't An Illegal Campaign Contribution

from the the-times-we-live-in dept

We live in such ridiculous times. The ongoing silly narrative over supposed "political bias" by tech companies is causing all sorts of stupid follow on effects. For instance, Microsoft has now asked the Federal Election Commission for an advisory committee to state that offering its enhanced security features -- known as AccountGuard -- to any political campaign won't be deemed an unfair campaign contribution.

At first blush, this seems crazy that they would even need to do so, but it's really a product of the era that we live in. As you may recall, part of the issue around the whole Stormy Daniels / Donald Trump fight is the question of whether or not Trump lawyer Michael Cohen paying her off to stay quiet was an illegal campaign contribution because it was money paid specifically with the intent to aid a particular candidate (in this case, Trump) in his election campaign. Indeed, John Edwards got caught up in something quite similar in the 2008 campaign in having someone pay off his mistress to keep her quiet. And some have argued that the case against Trump is significantly stronger than the one against Edwards (in which he was indicted, but after an acquittal on one charge and a hung jury on the rest, the DOJ decided to drop the case).

But the key issue under election law is that they apply to payments (or in-kind contributions) "for the purpose of influencing an election." And, in Microsoft's case, it highlights in its letter that it is offering this security service to all candidates regardless of their party positions, and thus is not trying to influence elections one way or the other just to protect politicians from getting hacked.

Microsoft seeks confirmation that it will not be making prohibited in-kind contributions by offering a package of enhanced online account security protections at no additional charge on a nonpartisan basis to its election-sensitive customers, including but not limited to federal candidates and national party committees, as described above.

It seems fairly obvious that this shouldn't even be an issue, but seeing as I'm not an expert in campaign finance, I reached out to former FEC chair Ann Ravel to see if I was missing something. She agreed that it was unlikely that Microsoft doing this would be seen as a violation of the law: "I am fairly confident that the FEC will conclude that Microsoft's proposed free service to "election sensitive" customers is permissible and not a prohibited in-kind contribution. Microsoft has made a good case that the service will not only be non-partisan but is in the company's own business interests, as well as their social obligation."

But another reason why Microsoft may have asked the FEC for an opinion is that lately we've been seeing more and more people claiming -- somewhat ridiculously -- that the silly debate over "political bias" on the platforms also involves illegal campaign contributions. I believe that this is intellectually dishonest partisan gamesmanship, simply trying (weakly) to take the claims about the Daniels' payment and play whataboutism on a grand scale.

Indeed, at least one candidate has even filed an FEC complaint over being banned by Twitter: and that's Paul Nehlen, who self-describes as a "pro-white candidate" and whose bigoted views are extreme enough that even Steve Bannon and others in the Trump camp have washed their hands of Nehlen.

Nehlen's FEC complaint was put together by lawyer Marc Randazza, who many of you are familiar with. Frankly, I believe this is not his best work. It relies heavily on the debunked article by Vice that incorrectly claimed that Twitter was "shadowbanning conservatives" based on their political views. The reality was that Twitter was not shadowbanning (it was merely having some users not show up in autocomplete) and it wasn't based on their political views. But the complaint doesn't acknowledge any of that, and insists that the article is evidence of Twitter trying to silence Nehlen's side of the "debate."

I raised some fairly skeptical questions about the complaint with Randazza over email, who responded that he believes that "Twitter and other platforms are attempting to "meddle in" elections" and stated, "Once they figure out who they can ban and who they can't, just watch for it." No offense to Marc, but that sounds fairly paranoid and devoid of any actual evidence. The discussions I've seen from platforms is that they actually are bending over backwards to appear "balanced" in how they handle political candidates from all across the political spectrum, perhaps to a ridiculous degree, out of fear of backlash from the supporters of those politicians. In Nehlen's case, his tweets were so far over the top and so far beyond what Twitter's terms of service allowed, that they finally got rid of him.

Again, due to my lack of experience with campaign finance laws, I ran the Nehlen complaint by former FEC Chair Ravel, who also felt that it stood little chance before the FEC, and suggested that the complaint misrepresented campaign finance law:

I don't believe that this issue comes within the FEC jurisdiction. The "debates" that the FEC has some responsibility to oversee, (11 CFR 110.13) has to do, clearly, with the "staging of debates." The code refers to whether or not a debate is a contribution or expenditure for a candidate, so related to the use of funds to defray "staging of candidate debates" not being a contribution. The FEC's only responsibility is to ensure that the structure if the debate is not to give priority to one party or individual. Consequently, the only issue that the FEC considers regarding a debate is whether or not pre-established objective criteria, to avoid real or apparent bias that is used to eliminate some candidates from the debate.

And while the Nehlen complaint bends over backwards to argue that "Twitter is the new debate platform," it seems like a huge stretch to argue that just because everyone shows up on Twitter to debate, that this is the same as Twitter "staging" a debate. Ravel also see some other massive hurdles to Nehlen's complaint:

Further, I think that the complaint would run afoul of the regulation that is still very much in existence (11 CFR 100.94) which says that uncompensated internet activity is not a contribution to influence a federal election. This includes the use of equipment or any form of communication on the internet. The only exception is as to those activities that are placed for a fee on a platform. So while this is not meant to apply to the platforms itself and its decisions about removing offending individuals from the platform, it certainly would be an impediment to the kind of relief that they are seeking.

In short, this seems unlikely to get very far. Though, given how long these things take, it may be years before we get official rulings on these issues. But, seeing as people are now trying to use campaign finance law as a weapon against anything related to politics, I guess we shouldn't be all that surprised to see Microsoft feel the need -- and you can almost hear the giant sigh coming from the legal team in Redmond -- to first seek an advisory ruling to make it clear that what they're doing in protecting candidates is okay.

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Filed Under: accountguard, campaign contributions, elections, fec, paul nehlen, social media, technology

Companies: microsoft, twitter