Maryland’s Online Electioneering Transparency and Accountability Act was signed into law on April 24, 2018, and took effect in July 2018. The law established disclosure and recordkeeping requirements for digital platforms hosting political advertisements.
Legal Background
Legislative Context: Following concerns about foreign interference in elections and lack of transparency in digital political advertising, Maryland sought to extend traditional campaign finance disclosure requirements to online platforms.
Legal Question: Whether states could constitutionally require online platforms to collect, maintain, and publicly disclose detailed information about political advertisements and their purchasers.
Key Provisions
The law establishes several important transparency requirements for online political advertising:
Platform Disclosure Requirements: Online platforms must publish on their websites information about political ad purchasers including the purchaser’s identity, amount paid, and individuals who control the purchaser entity. This information must be displayed within 48 hours of posting an ad and maintained for up to one year following an election.
Recordkeeping Obligations: Platforms must collect and maintain records of political ad purchases for at least one year following the general election, making these records available to the Maryland Board of Elections upon request.
Qualifying Advertisement Threshold: The law applies to electronic communications that constitute “campaign material,” are placed for a fee on online platforms, are distributed to at least 500 people, and do not propose commercial transactions.
Platform Coverage: The law covers “public-facing websites, web applications, or digital applications” that sell advertising space and have had at least 100,000 monthly users or visitors for most of the past year.
Disclaimer Requirements: All online campaign material must contain disclaimers stating the name and address of the person responsible for the material or the treasurer of each PAC responsible for it.
Impact on Digital Platforms
Maryland’s law created immediate compliance challenges for major digital platforms:
- Google Response: Google suspended all Maryland state and local election advertising rather than modify its systems to comply with the law’s 48-hour disclosure requirements
- Platform System Requirements: The law required platforms to build new infrastructure for collecting, storing, and publicly displaying political ad information
- Compliance Costs: Platforms faced significant technical and administrative costs to meet the law’s detailed recordkeeping and disclosure requirements
- State-Level Precedent: Other states considered similar approaches to digital political advertising regulation
Legal Challenges and Evolution
Constitutional Challenge: The Washington Post, along with other media organizations, challenged the law on First Amendment grounds, arguing it compelled political speech by requiring platforms to create public databases.
Fourth Circuit Ruling: In Washington Post v. McManus, the U.S. Court of Appeals for the Fourth Circuit ruled in 2019 that the law’s public-inspection requirement for online political ad records violated the First Amendment by compelling speech. The court struck down the public-disclosure provision but did not invalidate the entire law.
Binding Precedent: The Fourth Circuit’s decision established binding precedent within its jurisdiction regarding the constitutionality of compelled public-disclosure requirements for online political advertising.
Legislative Response: Following the court ruling, Maryland and other states began exploring modified approaches to digital political advertising transparency that might withstand constitutional scrutiny.
Digital Politics Implications
The Maryland law’s partial invalidation highlighted tensions in regulating digital political speech:
- State vs. Federal Authority: The law tested whether states could effectively regulate national digital platforms for political advertising transparency
- Platform Compliance: Major platforms demonstrated willingness to withdraw services rather than comply with state-specific political advertising requirements
- First Amendment Boundaries: The court ruling established limits on state power to compel platforms to engage in political speech through mandatory disclosure systems
- Subsequent Developments: Federal proposals and other state efforts to increase transparency in digital political advertising followed the Maryland law
- Industry Response: The law prompted broader discussions within the tech industry about voluntary transparency measures and self-regulation of political advertising
The Maryland law’s partial invalidation illustrated the constitutional limits of state-level approaches to compelled disclosure in digital political advertising, while other provisions of the law remained in effect.