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Jul 19

FEC: Campaigns Can Use Discounted Cybersecurity Services

The U.S. Federal Election Commission (FEC) said today political campaigns can accept discounted cybersecurity services from companies without running afoul of existing campaign finance laws, provided those companies already do the same for other non-political entities. The decision comes amid much jostling on Capitol Hill over election security at the state level, and fresh warnings from U.S. intelligence agencies about impending cyber attacks targeting candidates in the lead up to the 2020 election.

Current campaign finance law prohibits corporate contributions to campaigns, and election experts have worried this could give some candidates pause about whether they can legally accept low- to no-cost services from cybersecurity companies.

But at an FEC meeting today, the commission issued an advisory opinion (PDF) that such assistance does not constitute an in-kind contribution, as long as the cybersecurity firm already offers discounted solutions to similarly situated non-political organizations, such as small nonprofits.

The FEC’s ruling comes in response to a petition by California-based Area 1 Security, whose core offering focuses on helping clients detect and block phishing attacks. The company said it asked the FEC’s opinion on the matter after several campaigns that had reached out about teaming up expressed hesitation given the commission’s existing rules.

In June, Area 1 petitioned the FEC for clarification on the matter, saying it currently offers free and low-cost services to certain clients which are capped at $1,337. The FEC responded with a draft opinion indicating such offering likely would amount to an in-kind contribution that might curry favor among politicians, and urged the company to resubmit its request focusing on the capped-price offering.

Area 1 did so, and at today’s hearing the FEC said “because Area 1 is proposing to charge qualified federal candidates and political committees the same as it charges its qualified non-political clients, the Commission concludes that its proposal is consistent with Area 1’s ordinary business practices and therefore would not result in Area 1 making prohibited in-kind contributions to such federal candidates and political committees.”

POLICY BY PIECEMEAL

The decision is the latest in a string of somewhat narrowly tailored advisories from the FEC related to cybersecurity offerings aimed at federal candidates and political committees. Most recently, the commission ruled that the nonprofit organization Defending Digital Campaigns could provide free cybersecurity services to candidates, but according to The New York Times that decision only applied to nonpartisan, nonprofit groups that offer the same services to all campaigns.

Last year, the FEC granted a similar exemption to Microsoft Corp., ruling that the software giant could offer “enhanced online account security services to its election-sensitive customers at no additional cost” because Microsoft would be shoring up defenses for its existing customers and not seeking to win favor among political candidates.

Dan Petalas is a former general counsel at the FEC who represents Area 1 as an attorney at the law firm Garvey Schubert Barer. Petalas praised today’s ruling, but said action by Congress is probably necessary to clarify the matter once and for all.

“Congress could take the uncertainty away by amending the law to say security services provided to campaigns to do not constitute an in-kind contribution,” Petalas said. “These candidates are super vulnerable and not well prepared to address cybersecurity threats, and I think that would be a smart thing for Congress to do given the situation we’re in now.”

‘A RECIPE FOR DISASTER’

The FEC’s decision comes as federal authorities are issuing increasingly dire warnings that the Russian phishing attacks, voter database probing, and disinformation campaigns that marked the election cycles in 2016 and 2018 were merely a dry run for what campaigns could expect to face in 2020.

In April, FBI Director Christopher Wray warned that Russian election meddling posed an ongoing “significant counterintelligence threat,” and that the shenanigans from 2016 — including the hacking of the Democratic National Committee and the phishing of Hillary Clinton’s campaign chairman and the subsequent mass leak of internal emails — were just “a dress rehearsal for the big show in 2020.”

Adav Noti, a former FEC general counsel who is now senior director of the nonprofit, nonpartisan Campaign Legal Center, said the commission is “incredibly unsuited to the danger that the system is facing,” and that Congress should be taking a more active roll.

“The FEC is an agency that can’t even do the most basic things properly and timely, and to ask them to solve this problem quickly before the next election in an area where they don’t really have any expertise is a recipe for disaster,” Noti said. “Which is why we see these weird advisory opinions from them with no real legal basis or rationale. They’re sort of making it up as they go along.”

In May, Sen. Ron Wyden (D-Ore.) introduced the Federal Campaign Cybersecurity Assistance Act, which would allow national party committees to provide cybersecurity assistance to state parties, individuals running for office and their campaigns.

Sen. Wyden also has joined at least a dozen other senators — including many who are currently running as Democratic candidates in the 2020 presidential race — in introducing the “Protecting American Votes and Elections (PAVE) Act,” which would mandate the use of paper ballots in U.S. elections and ban all internet, Wi-Fi and mobile connections to voting machines in order to limit the potential for cyber interference.

As Politico reports, Wyden’s bill also would give the Department of Homeland Security the power to set minimum cybersecurity standards for U.S. voting machines, authorize a one-time $500 million grant program for states to buy ballot-scanning machines to count paper ballots, and require states to conduct risk-limiting audits of all federal elections in order to detect any cyber hacks.

BIPARTISAN BLUES

Earlier this week, FBI Director Wray and Director of National Intelligence Dan Coats briefed lawmakers in the House and Senate on threats to the 2020 election in classified hearings. But so far, action on any legislative measures to change the status quo has been limited.

Democrats blame Senate Majority Leader Mitch McConnell for blocking any action on the bipartisan bills to address election security. Prior to meeting with intelligence officials, McConnell took to the Senate floor Wednesday to allege Democrats had “already made up their minds before we hear from the experts today that a brand-new, sweeping Washington, D.C. intervention is just what the doctor ordered.”

“Make no mistake,” McConnell said. “Many of the proposals labeled by Democrats to be ‘election security’ measures are indeed election reform measures that are part of the left’s wish list I’ve called the Democrat Politician Protection Act.”

But as Politico reporter Eric Geller tweeted yesterday, if lawmakers are opposed to requiring states to follow the almost universally agreed-upon best practices for election security, they should just say so.

“Experts have been urging Congress to adopt tougher standards for years,” Geller said. “Suggesting that the jury is still out on what those best practices are is factually inaccurate.”

Noti said he had hoped election security would emerge as a rare bipartisan issue in this Congress. After all, no candidate wants to have their campaign hacked or elections tampered with by foreign powers — which could well call into question the results of a race for both sides.

These days he’s not so sanguine.

“This is a matter of national security, which is one of the core functions of the federal government,” Noti said. “Members of Congress are aware of this issue and there is a desire to do something about it. But right now the prospect of Congress doing something — even if most lawmakers would agree with it — is small.”

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45 comments

  1. First to comment! I know, so what!
    ““The FEC is an agency that can’t even do the most basic things properly and timely, and to ask them to solve this problem quickly before the next election in an area where they don’t really have any expertise is a recipe for disaster,” Noti said
    This also sounds like Congress!

  2. Great article and great gumshoe work Brian, so don’t let my following statement damper your news.

    Americans are too smart to be swayed by Russian meddling, in fact they hardly pay attention to the billions of dollars of advertising and campaign finance all the parties spend on elections. How many times have we seen candidates win with hardly a penny spent compared to who they are running against?

    Congress is wasting our time looking into all this, with one exception. and that would be cracking into election machines. That is the only subject I’m concerned with.

    • “Americans are too smart…”

      The electoral college win for Trump suggests otherwise.

      • The founding fathers can be thanked for that – it was designed to protect the electorate from situations like the Weimar Republic disaster, where too many parties were running at the same time and no majority was able to reach enough of a quorum to effectively govern the state, setting up Germany’s fragile democracy, for conditions that favored a coup d’état.

        It is simple to look at the pie chart of how many people that voted in different parties for different candidates, and see that there actually isn’t a verifiable majority by one single candidate. You have to count all the contest votes to get a picture of how freedom works in a Democratic Republic. One candidate may have a majority of votes when compared to other single candidates, but they don’t necessarily have a majority when all opposing votes are compared to the winning candidate. The college helps make the votes of people who didn’t win count. That is the beauty of it.

        It also guarantees the majority party can’t beat up on the other minority parties. A pure democracy is really just a larger club of people who simply have all the power, and the minority has none. That is how it was done in Greece and Rome, and we all saw how that turned out.

        • Oh please.

          • Very solid rebuttal. I’d give it a 10/10, two thumbs up, and a supersized diet Pepsi. The internet will sing your praises for years to come. That comment alone has single-handedly changed the way we view Democracy and the election process. Have you ever considered running for President? I can see it now:

            Moderator: “This question is to weinerdog43: How do you end world hunger?”
            weinerdog43: “Oh please”.

            **Major announcement: weinerdog43 wins the election by a landslide victory the likes that we’ve NEVER seen before**

            I, myself, can’t believe how much prep time you spent in specially crafting that solid response! You, my friend, are a master debater!

            • I dunno how obligated I’d feel to make an honest effort to debate someone who reduced the fall of a five-century old empire to “they didn’t have an electoral college” I’d be myself.

              • Obviously it takes more than one factor to run a democracy. A well crafted Constitution, and a public willing to recognize its authority helps; a balance of power between the executive, courts, and congress another, etc, etc.

        • I’d rather see elimination of the party/gang system and make people run on their own merits, than on the coat tails and riches of others that have their own agenda and expect (and get) rewards for financing the puppets.

        • Sorry, but the reasoning for the Electoral College is wrong, and wouldn’t make sense if it were the reason.

          Firstly, an electoral college doesn’t prevent multiple parties from participating. That is due to the system of “first past the post”. That is a separate thing from the Electoral College. The FPTP system is responsible for the “spoiler effect” that suppresses 3rd parties from participation. It makes it inevitable for a republic to coalesce into a 2 party (polar) system, which is what we have.

          Secondly, you are confusing the Electoral College, which is ONLY FOR PRESIDENTIAL ELECTIONS… with LEGISLATIVE REPRESENTATION 0f Congress. The Electoral College has NOTHING do do with representatives in Congress…. and thus NOTHING to do with the irrational fear of “too many parties” being ineffective or not reaching quorum.

          Also, having multiple parties in Congress that don’t have a majority may indeed decrease the efficiency of the government to make quick decisions…. but we have that anyway. The filibuster and requirements for super majorities for many actions exist today, and create the same problem that you may want to prevent.
          Government isn’t effective as is… even with a single party being in power. Moreover, with 2 parties swapping nearly every cycle, even laws that manage to get passed, get undone when the pendulum swings back.

          “The college helps make the votes of people who didn’t win count”
          What? NO! The “Winner take all” component of the Electoral College does the exact OPPOSITE. It ensures that the people who voted for the losing candidate in that state, get ZERO electoral votes. Even if 49.9999% of the counted votes were for the loser… they get ZERO… It is how someone can win the white house without winning the popular vote.

          “It also guarantees the majority party can’t beat up on the other minority parties”
          No… that is exactly what is happening, and has happened throughout the history of the US and our Electoral College.

          Greece and Rome didn’t have pure democracies either. Nobody has even really tried it. Greece and Rome didn’t have a democracy like us… but they were fraught with corruption because only the elite could be in government. No women, peasants, etc.

          We could eliminate the First Past the Post component of elections, and adopt Approval Voting. This will finally break the D vs. R cycle of nonsense and allow 3rd parties to run without spoiling. We have nearly 330 million people in the US.. it is stupid to think that we can be represented with only 2 party platforms. But again, this has nothing to do with the Electoral College

          We could eliminate the Winner Take All component of the Electoral College too. 2 states have already done this. This would actually count votes for candidates who lose the state. This means conservatives in California and liberals in Texas finally get thier votes counted,.. instead of thrown away by the State.
          Only when large red and large blue states do this at the same time, could it be fair. Until then, only if enough states override with the Interstate Compact agreement of the National Popular Vote will be able to balance out the ridiculousness of the Electoral College. If enough states sign, it will be yet another kludge fix to our democracy. Essentially a few big states will be agreeing to throw away their winner’s votes to offset the many other smaller states that have thrown away their loser’s votes.

      • Come on now Canuck, Justin Trudeau is your idea of a good leader?

    • This supposes that Russian meddling is as simplistic as the Russians (or any foreign power, really), interfering in order to get us to take some specific position- which you suppose we are too smart to fall for.

      It doesn’t at all account for the idea that the meddling is as often to sow confusion, enhance division, and cause general chaos as it is to elicit support for some specific agenda.

      Also I’m honestly not sure that “intelligence” alone is the relevant measure for deciding the success or failure of these efforts. You might be confusing the American Electorate for one that has a long and storied history of decisions made on purely cerebral, philosophical grounds, and never an aggregate that vacillates wildly between emotional extremes… often coming to decisions based on our fears and “feels”.

    • I’m sure Americans are too smart to be influenced to buy a Coke after seeing a Coke commercial, yet Coca-Cola spent $4B on advertising in 2017 (investopedia).

      The American advertising industry is worth hundreds of billions of dollars, which is clear evidence that Americans are too smart to be swayed by mere advertising… /s

  3. Robert Adjemian

    I’d like to believe that people aren’t swayed by Russian fake news, certainly I’m not, but see the PBS documentary on Facebook: https://www.youtube.com/watch?v=T48KFiHwexM&t=6s

    Maybe people simply want to believe what they read. However it works, riots have started and people killed – all due to fake postings on Facebook. Check out the program if you haven’t seen it already.

    • There is no doubt that the Arab spring was derailed by hatred speech, and fake news. However, when you have a society founded on hatred, it isn’t surprising to see the best laid plans of mice and men go bad. I’d like to think the American public condemnation of hate speech and similar human proclivities are one of our best advantages. I’ve seen Facebook groups and individual members correcting each other when fake news is attempted to pass as the truth. As I see it the members themselves are the best regulators of Facebook(or other social media) information. Maybe someday soon they will have an AI to add more balance, and police fake accounts.

      • What fantasy land are you living in? The US has no hate speech laws, is home to the Proud Boys and the KKK, among others, and hate speech is cheered on as much as it is condemned.

      • That comes across as islamophobic, and definitely revisionist.

        What would they say about our society. Literally built on slavery.

  4. David Thompson

    “Current campaign finance law prohibits corporate contributions to campaigns.” LOL. When begin with such a ludicrous statement, the entire article reads as ,”blah, blah, blah.” American democracy is doomed. Find a soft landing place. Canada is nice.

  5. How far does this in-kind contribution rule go? I’d love it if deliberately biased sites such as the legacy media plus Facebook and Twitter were made to conform to limits on their huge in-kind contributions to Democrats.

    • How far does this in-kind contribution rule go? I’d love it if deliberately biased media such as Fox News (Hannity) and Rush Limbaugh plus sites like Breitbart and Infowars were made to conform to limits on their huge in-kind contributions to Republicans.

      But there is this pesky little “First Amendment” issue that prevents contribution rules limiting blatant criticism and promotion by talking heads and pundits even when they are lying.

      • I’ve seen plenty of deliberately biased news on all the cable news networks – I see no difference at all. The only one I see that stands out is the BBC – which is amazing considering it is run by the UK government. I try to check out the BBC to get a true balance when I can.

  6. repubes treason dreams

    repubes want russian hacking because that’s the only way they can win the presidency again. they already won the presidency and put trump in office with the help of russian hacking. and repubes want it again.

    • LMAO!! You are too funny!

      • Seems to me that neither side has the peoples best interest at heart. Only power. Right now I have an issue with the inadvertent/unintended Demos helping the Russians achieve their goals of distracting the US. So who is profiting?

        • “Under Republicans Man Exploits Man.
          Under Democrats It’s Just the Opposite.”

        • How are Democrats distracting the US away from Russian involvement? They’ve opened every investigation they could.

  7. Will these campaign-focused security firms actually need to prove they are in the business of providing security?

    Do the requisite ‘non-political’ entities need to prove they are not in turn being operated by the same campaign office the ‘security firm’ is being so helpful with?

  8. Marco Belmonte

    Anyone else think it is hilarious that Area 1 reserves helping organizations which don’t exceed $1,337 in profits? That was “leet!” 😉

    • Yes, I found that hilarious.

    • That’s not how I read it.

      “Area 1 .. offers .. services to certain clients .. capped at $1,337.”

      That figure is surely what Area 1 charges the client, and has nothing to do with the client’s profitability.

      If in doubt ask the company for clarification.

    • While I didn’t take it to mean what you suggested, I’m certain the number was chosen deliberately. Made me lol.

  9. Transactional focus in both regulatory control and “policy” formulation is a fundamental component of this neofascist administration.

  10. ChrisSuperPogi

    From a cybersecurity perspective: This is an important development as it addresses one (of the three) major channels of threats (the other two are: threats to the voting machines and the social engineering attacks / fake news that influence our voters).

    By allowing campaigns to accept cybersecurity services that they can afford helps them address threats without being suspected of accepting in-kind contributions.

    Remember, DNC hack and Hillary Clinton’s phishing events are ” “a dress rehearsal for the big show in 2020.” If we don’t address these now, we are bound to repeat our mistakes.

    My $0.02

  11. I appreciate that BK tried presenting the article in a non-partisan manner and I want to respond in kind.

    But I can’t.

    Wyden annoys me. The FEC annoys me. So what follows is a big rant.

    You’re welcome to ignore.

    Rant/

    Wyden’s bill is a $10,000,000 bribe to each state to vote Democrat. There is no other reason for the federal government to be handing money over to state offices of elections BEFORE changes are implemented. It’s not a reimbursement for making improvements, it’s a bribe.

    This bill would force states to hire more election workers to handle the mandated paper ballots. Civil servants inevitably vote for the party of big government, as it is a cycle of self-preservation.

    McConnell is right. The Wyden bill is a Democrat job protection measure.

    Now, that doesn’t mean Wyden is entirely wrong. It is a great idea for election records to be secure from blackmail, tampering, and exploitation. Voting needs to be secure.

    But what he’s wrong about is trying to mandate these things at the federal level. Election security is not a national issue. It’s a state issue. States run their elections as their citizens demand.

    If Wyden really wanted to improve election security, he’d offer reimbursement to state election offices that voluntarily improve their systems. But as long as it’s mandated and a bribe, I wouldn’t stand with him.

    All votes, except for president, are for state issues and state representation in federal and state government. The only job of the federal government in elections is to oversee the electoral college tabulation. Everything else is a state responsibility.

    The FEC would do well to stop issuing letters. As a federal agency, they don’t have any business sticking their nose into the affairs of private companies or political campaigns, save for presidential campaigns. And even for those, they have no business interpreting the will of Congress and acting as part of the judicial branch.

    Stop it, FEC. Stop it.

    Wyden should instead be focused on reeling in the power of social media, marketing, and search companies from influencing politics by censorship, data mining, and targeting advertising.

    He should look into amending section 230 of the Communication Decency Act to eliminate the loophole that allows Facebook, Instagram, and Twitter to silence Americans and spout anti-American propaganda. These companies are the ones who gave “the Russians”, ISIS, and others a platform to try influencing the last two big elections. (Unsuccessfully, I might add).

    He should make it impossible for Google to shift voters to or from political candidates by manipulation of search algorithms. Currently, Google has the ability to shift 20 million votes, just by changing how search results are ordered for different users.

    (Pranksters can manipulate results, too. Google “pranksters santorum”).

    And Wyden should be looking to keep Chinese spy technology out of our country’s 5G rollout, by codification of the Entities List, so that whoever wins in 2020 cannot undo the current ban on Huawei infrastructure tech.

    But he won’t. Because in 2016, he took in twice the average money among senators. He’s bought and paid for by special interests. He really is a partisan hack.

    /rant

    • I should add: thank you, Brian, for allowing the rant to stay up, unedited.

    • PrivateCitizen

      The party of Big Government is the Republican party. They only *talk* about a smaller government. The Republican party grows government every time they are in power and only fight to shrink it when a Democrat is in the White House. There’s a good reason why too, because government jobs are *jobs*. Normally, while they are in power, they want full employment and for people to associate the good economy with their policies. They hide the facts by still talking tough on Big Government, and then expand the spending quietly (as in not talking about the cost or the growth of government from their policies). The DHS is one big example, but there’s plenty of others too.

      To clarify “normally”, there’s nothing normal about this Presidency. Trump is inconsistent and incoherent most of the time, and as a result, even when the Republicans were in full control of both houses of Congress, they couldn’t figure out how to enact his policies.

      The one thing I agree with is that we have a corruption issue in the US. It isn’t just a one sided issue. There’s corruption on both sides, and that is something we shouldn’t accept.

  12. Any word if they are going to provide discounted personal protection to Seth Rich types?