May 24, 2024
Public Disclosure Commission approves rules for deepfakes in political ads
The Public Disclosure Commission approved new rules for synthetic media, commonly known as deepfakes, in political advertising at its May 23 regular meeting. The rules will be in effect starting in late June, in time for the current election cycle.
The Legislature directed the PDC to adopt rules for a law created by Senate Bill 5152, passed in 2023. The bill created a private cause of action against the sponsor of electioneering communications using synthetic media. A candidate who is the subject of a deepfake ad could file a civil suit against the sponsor, unless the communication includes a disclaimer that it contains synthetic media. The PDC would not investigate complaints regarding the new law or rules.
The new rules amend WAC 390-16 and 390-18, and require committees and sponsors of political advertising and electioneering communications who use synthetic media to disclose information on expenditure reports including: The name of the vendor that provided the technology for political ads using synthetic media, the commercial advertiser, and the description of how audiences were targeted.
Commercial advertisers would also have to include this information in their books of account available for public inspection.
The law and newly passed rules don’t prohibit deepfakes in political advertising, but instead require the use of the technology to be disclosed. Staff and commissioners noted that the technology is still emerging, and the agency may need to revisit rules as new issues arise.
The Commission invited several experts on deepfakes in political advertising to speak at its April meeting, who demonstrated how easy it is to create a convincing faked image, video or audio clip. The full meeting and presentations are available on TVW.
All yard signs must have sponsor identification starting June 6
The Commission also approved emergency rules that require sponsor identification, or “paid for by” statements, on all yard signs.
The rules were adopted in furtherance of House Bill 2032, passed this year, which removed an exemption on sponsor ID for yard signs 4 feet by 8 feet or smaller.
The new law goes into effect June 6.
Because of the short turnaround time between the legislative session and the effective date of the law, PDC staff used an emergency rulemaking process. Rules approved through this process are in effect for 180 days, but can be extended. The agency can revisit the rules in a permanent rulemaking process after the current election cycle.
Staff and commissioners acknowledged the difficulty in enforcing the new rules when many campaigns have already purchased and distributed yard signs that don’t meet the requirements.
Staff proposed that signs purchased and placed before June 6 would be exempt from the rules, while signs purchased and placed afterwards would be required to comply. Such purchases would show up on campaign expenditure reports and in commercial advertiser records.
However, the PDC is encouraging purchasers of campaign signs leading up to June 6 to include sponsor ID to promote transparency, avoid confusion and ensure that signs getting reused in future elections will be compliant.
Campaigns should follow the PDC’s guidance on sponsor ID placement and size on yard signs and campaign materials. For example, sponsor ID on yard signs should be no less than 10 percent of the largest font size on the sign.
Commissioners discuss merits of issuing warnings in compliance process
The Commission denied a petition for rulemaking that would have changed the way the agency resolves many compliance cases, but promised to continue to consider how to best resolve complaints against campaigns.
Currently, rules allow the agency executive director to resolve any complaint alleging minor violations of public disclosure law with a formal written warning.
The petition, submitted by campaign treasurer Conner Edwards, would require that the commission chair or their designee would also have to sign off on such warnings to campaigns. Edwards wrote in his petition that he was requesting the change to create more oversight over warnings, and argued that warnings are too widely used by staff and do little to deter noncompliance.
PDC staff typically issue warnings in cases in which there is evidence of a minor violation, but in which the issue has been remedied, such as in the case of a late-filed report.
General Counsel Sean Flynn advised that the commission could adopt the proposal, which would lead into the formal rulemaking process, or deny the proposal, with the option of addressing it in a different way in the future.
The Commission discussed the issue in detail. Vice Chair Allen Hayward expressed a desire to have more input on the warning process, saying staff’s decisions reflected on the Commission. He also voiced concern that warnings are not taken seriously by filers and the general public.
Commissioner Jim Oswald said that he felt concern about warnings being used for instances such as potential violations of RCW 42.17A.555, for the use of public facilities for campaign purposes. However, Commissioner J. Robert Leach said he was concerned that reducing the amount of discretion available to staff might have negative consequences in compliance matters with unique circumstances.
The Commission also discussed reviewing the procedure staff follow in evaluating whether a case merits a warning or other disposition, and spending more time discussing enforcement matters in monthly Commission meetings.
While they denied the petition, the Commission vowed to continue to review the issue moving forward.
Enforcement update: Six sheriffs warned for gubernatorial campaign video
Among 35 cases resolved from April 19 through May 15 were eight complaints against county sheriffs who appeared in a video produced for the Dave Reichert campaign for governor. Six of the sheriffs received formal written warnings, while two were found to have not violated campaign disclosure law.
The PDC received a complaint that some of the sheriffs featured in the pro-Reichert video, first posted in February, were wearing their official uniforms or using their office or office equipment, a potential violation of RCW 42.17A.555, which prohibits the use of public facilities for campaign purposes.
Staff contacted the sheriffs, who were interviewed in the video by a company hired by the Reichert campaign. At least one sheriff reported that he didn’t know how the footage was going to be used, but admitted that he should have asked. Others reported that they thought they could use their offices if they didn’t explicitly endorse a candidate, or if they removed the trappings of their office from the camera’s view first. More than one sheriff told PDC staff that they didn’t know about the law at all.
While the Reichert campaign used the video, PDC staff reported that they could not open a complaint against the campaign under RCW 42.17A.555 because Reichert is not currently an elected official, and his campaign could not authorize the sheriffs’ use of public facilities in the video.
However, members of the Commission stated that the campaign and the company it hired were continuing to benefit by the video, and should have known about the prohibition regarding the use of public facilities.
“What we have is a campaign that is actively using material that is illegal,” Commissioner Leach said.
PDC staff have requested that the campaign voluntarily take the video down, but as of this week it was still available online.
Other cases:
From April 19, through May 15, the PDC received 33 new complaints and as of May 15 had 498 total cases open. However, some of those open cases involved multiple respondents.
The agency held 110 initial hearings during that time and resolved 35 cases. Of the resolved cases, three were dismissed with no evidence, 14 received written warnings, 14 were resolved through statements of understanding and four received a reminder letter or were administratively closed.