Trevor Potter Featured in Washington Lawyer: "Election Security: The Fight to Secure the Vote"

Caplin & Drysdale’s Trevor Potter is featured in an interview with William Roberts in the October 2018 issue of Washington Lawyer. Below is an excerpt of the interview which is in the article "Election Security: The Fight to Secure the Vote".  For the full article, please visit Washington Lawyer’s website.

Election Reform Advocate

One D.C. Bar member who is advocating for election reform on the federal level is Trevor Potter, a former chair of the Federal Election Commission who now heads the Political Law Group at Caplin & Drysdale, Chartered.

“Lawyers should be asking the key questions. What’s being done? What do we know about the threats? What are public officials doing? We certainly should be encouraging our state and local officials to be cooperating with the federal government and to take every step to check the vulnerabilities of voting systems,” Potter says.

Potter serves on the board of trustees of the Campaign Legal Center, a nonprofit advocacy group lobbying Congress for electioneering rules to govern social media, in addition to pursuing litigation strategies for voting rights nationwide.

Back in February, Mueller brought an indictment against Russia’s Internet Research Agency and a number of individuals for using fake accounts to interfere in the 2016 election. That led to hearings on Capitol Hill and a lobbying blitz by the major U.S. social media companies.

Facebook, which has faced serious criticism for data breaches, announced in July that it removed 32 pages of content from its platform found to have engaged in “coordinated inauthentic behavior.” Twitter removed tens of thousands of accounts believed to be Russian bots, and Apple took down the iTunes podcast for Alex Jones’s InfoWars.

“They are engaging all of this as a way to avoid legal requirements,” Potter says. “They are making arguments they can do this themselves,” rather than have Congress attempt to impose regulations.

It’s tricky territory. In some cases, social media platforms are deleting materials that people would say shouldn’t have been deleted. Censorship is not easy to do, and media companies will get attacked by people on both sides who will argue their speech is getting cut off, Potter says.

“The biggest step they have taken is deciding they are going to demand that advertisers must actually tell them who they are, who’s actually paying for the ad. So, the internet becomes more like your radio and television in terms of seeing disclaimers and at least knowing where this stuff is coming from,” he says.

“They are finding, as federal regulators did before, that there are lots of questions about what has to be disclosed. Is it actually ‘Americans for a Better Country,’ or is it the people who fund ‘Americans for a Better Country’? At what levels and at what sort of advertising? It’s a slam dunk if the ad says ‘Vote against Hillary, she’s the devil.’ But on issues of gun control or abortion, it doesn’t say vote for or against the candidate. That’s the conundrum of issue advocacy and electoral advertising,” Potter says.

Late last year, Senators John McCain, Amy Klobuchar, and Mark Warner introduced what they hoped would be a bipartisan bill in the Senate that would attempt to check political ads on companies like Facebook and Google. Without Republican backing, the bill failed.

“We are going to see a lot of changes at both the state and federal level in terms of incentives and, in some cases, bans against certain types of technology,” says Joseph Lorenzo Hall, chief technologist at the Center for Democracy and Technology, who worries most about ransomware attacks in the upcoming election. “That’s a really good opportunity for folks that do legislative work, but you can imagine there are going to be lots of lawsuits, too.”