In the rush of year-end, government contractors may have missed a General Accounting Office ("GAO") finding on December 14, 2015 that a portion of the Environmental Protection Agency's ("EPA") social media program violated federal laws relating to propaganda and anti-lobbying. Because the laws also affect government contractors, the GAO findings may be of interest, especially since they are similar to some Federal Trade Commission and Securities and Exchange Commission guidance on disclosures and endorsements.
Starting with the federal laws at issue, Section 718 of the Financial Services and General Government Appropriations Act of 2014 stated:
No part of any appropriation contained in this or any other Act shall be used directly or indirectly, including by private contractor, for publicity or propaganda purposes within the United States not heretofore authorized by Congress.
Pub. L. No. 113-76, div. E, § 718 (emphasis added). The 2015 act contained somewhat similar language, but did not include the express reference to private contractors. Pub. L. No. 113-235, div. E, § 718. In June of 2015, the Chairman of the Senate Committee on Environment and Public Works requested that the GAO provide an opinion regarding whether the EPA's social media campaigns relating to the EPA's proposed rule under the Clean Water Act violated the 2014 and/or 2015 acts.
The EPA social media campaign
This matter began in 2014, when the EPA proposed a rule relating to the Clean Water Act. The EPA conducted a social media campaign during the public comment period for the rule, and extended the campaign even beyond that time. The EPA used Facebook, Instagram, Twitter, and Tumblr and a crowdsourcing platform named Thunderclap.
Thunderclap is a social media platform that—somewhat like Kickstarter—allows organizers to create a webpage describing a proposed campaign message. If a sufficient number of people support the campaign, the campaign's message of up to 117 characters is posted on the social media accounts of the supporters. The expectation is that those supporters will then forward the message to their friends, followers, etc.
In this matter, the GAO focused on four aspects of the EPA's social media campaign:
- The EPA created a Thunderclap page that included the EPA name and logo. The message that the EPA proposed to send was "Clean water is important to me. I support EPA's efforts to protect it for my health, my family, and my community. <link to EPA page on proposed rule>" The EPA exceeded its goal of 500 supporters, and sent the message to 980 supporters' social media accounts. The message was estimated to have been re-sent to 1.8 million of their followers, friends, etc.
- The EPA created a hashtag #DitchtheMyth, relating to the proposed rule's scope. The EPA create a web site with that URL and created the hashtag for people to use on Twitter. The EPA itself created tweets relating to the rule using that hashtag, and ended its tweets with the EPA's own Twitter handle "@EPAWater."
- The EPA's Communications Director wrote an official blog post called "Tell Us Why #CleanWaterRules." The author suggested that people post photos on Facebook, Twitter, and Instagram with that hashtag and use the hashtag on Twitter.
- That EPA blog post also included links to web pages by two nonprofit organizations. Both linked pages included content that urged people to contact their members of Congress.
The GAO findings
Of those four elements of the EPA's social media campaign, the GAO found that the second and third were consistent with legal requirements, but the first and fourth were not.
The GAO found the Thunderclap message (element #1 above) did not identify the EPA as its author, making the message "covert propaganda." The Thunderclap page on which the EPA sought supporters clearly identified the EPA as its source, so the 980 supporters knew the source of the message they received, but the 1.8 million people to whom they sent it did not know the EPA was the author.
In contrast, in element #2 above, the EPA's tweets using the #DitchtheMyth hashtag ended with the EPA's Twitter handle "@EPAWater." The GAO found that moniker identified the EPA to its intended audience as the source of the information.
The #CleanWaterRules hashtag (element #3 above) was not impermissibly "self-aggrandizing" because, the GAO found, "engendering praise for the agency was not the goal." The EPA's focus was on the proposed rule, rather than on lauding the agency.
With respect to element #4, the GAO found the EPA's hyperlinks to third party pages constituted "grass-roots lobbying." The GAO stated that the anti-lobbying provision of the law is violated "where there is evidence of a clear appeal by an agency to the public to contact members of Congress in support or, or in opposition to, pending legislation." Although the GAO agreed that it was the linked-to third party sites that urged people to contact members of Congress, the GAO found that the "EPA associated itself with the linked content when it chose to hyperlink to those webpages in its official blogpost." In other words, the "EPA's choice of hyperlinks formed its own expressive act for which the agency is responsible."
The GAO also noted that the EPA's own social media policy "suggests inclusion of an exit message when connecting to third party content." An "exit page" or "intermediate screen" informs the user that the user is leaving the site and going to a third-party site. The GAO noted that the EPA did not follow its procedure in this matter.
The GAO's findings provide a few takeaways for government contractors and other companies:
- Companies should identify the source of any social media post. Even if the post does not relate to a federal agency, the Federal Trade Commission's ("FTC") Endorsement Guides similarly call for disclosure of the identity of the speaker and factors relating to that speech (e.g., whether the content is "native advertising," whether the speaker was motivated by a financial consideration, such as entering a sweepstakes, etc.)
- Disclosures can be short, at least on Twitter. The GAO found that the Twitter handle @EPAWater was sufficient to identify the EPA as the source of the tweet. The FTC has stated that the hashtag #Ad can identify a tweet as an advertisement or promotional message.
- If the speaker elects to include a hyperlink to third party content, regulators can view the speaker as "adopting" that content. Both the GAO and the Securities Exchange Commission ("SEC") have stated that speakers can be responsible for linking to specific content.
- Companies should follow their own policies. Here, the GAO found that the EPA did not follow its social media policy with respect to "exit pages" for third party content. The GAO did not indicate whether an exit page would have mitigated the issue, but the SEC has previously indicated that the mere presence of an exit page alone will not suffice to avoid attributing the content to the speaker. In addition, the FTC has entered into more than 50 consent agreements with companies for violating their own express or implied privacy policies.
- As a New Year's resolution, a company should review its policies not only for compliance with legal requirements but also for consistency with the company's actual practices.