Irish elections and referendums must be shielded from external influence

In May 2018, anti-abortion activist Emily Faulkner landed in Dublin Airport. She and a group of fellow activists had held a fundraiser in her native United States to raise $10,000 to pay for travel and campaign materials. They had feared they would be turned away by immigration officials, but as she pointed out, it “turns out nothing we were originally planning on doing was illegal at all”. So they travelled throughout Ireland with 5,000 posters they had printed urging Irish citizens to vote No to the referendum on the Eighth Amendment.

“It’ll kind of be like if we’re promoting a concert!” Faulkner said, speaking to CNN journalist Kara Fox.

Two months earlier, the chief executive of a New York-based pro-life group acknowledged to the Dublin Inquirer that he had spent “a few hundred dollars” on Facebook ads targeting Irish voters, claiming he was “requested by Irish pro-life activists to stir up Americans to stand with them to support the Eighth Amendment” (a claim which was rejected by Irish pro-life campaigners).

When confronted by the journalist, he was defiant. “If I broke the law, come extradite me, send a garda over to get me . . . I could come have a pint over there.”

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Around that time, I emailed a number of agencies with responsibility for some part of campaigning to see if they could take action on the overseas purchase of online political ads, and each one – the Standards in Public Office Commission (Sipo), the Broadcasting Authority of Ireland (BAI), the National Cyber Security Centre and the Advertising Standards Authority of Ireland – said they could not. In other countries, like the US, the security services are responsible for election interference, but it was confirmed to me by a member of the Irish Defence Forces that this is not the case in Ireland.

So Faulkner was right in one respect; there appears to be no Irish law explicitly banning overseas groups and individuals from working to influence our elections and referendums, and no statutory body with responsibility for ensuring our elections and referendums are free from international interference.

Democratic processes

Ireland has distinguished itself in recent years with the respect and confidence we place in our democratic processes. This is in spite of, rather than because of, the outdated protections those elections enjoy. The Electoral Acts prohibit registered Irish campaigns from accepting donations from overseas (with limited exceptions, such as for Irish citizens living abroad). However, as a representative of Sipo, the body charged with implementing this rule, told the Dublin Inquirer, “the Act does not cover expenditure that occurs outside Ireland”.

Ireland has distinguished itself with the respect and confidence we place in our democratic processes. This is in spite of the outdated protections those elections enjoy

In January, the Government published plans to overhaul our electoral law, and to establish a permanent electoral commission charged with overseeing the administration of our voting.

The draft Electoral Reform Bill goes some way to acknowledging that we no longer live in a world where the only way international activity could influence our elections was through donations to campaigns, if indeed we ever did. It prohibits the purchase of political ads on social media from outside the State, and creates an offence if companies fail to implement due diligence over who is paying them to access users during election periods. This would prevent groups like the New York-based organisation from directly purchasing ads on Facebook.

However, it stops short of granting the new electoral commission a broader mandate for ensuring that elections and referendums are free from international interference, for predicting and detecting threats to electoral integrity, or for mandating transparency outside of electoral periods.

Influence operations, as we saw in the US government’s report on interference in their most recent election, are broader than paid political ads and continually evolve to exploit campaign tactics, including influencer advertising, the use of attack videos and astro-turf campaigns (which mask the sponsors of a message or organisation). There are also online campaigns funded by Super-Pacs (political action committees) which are not subject to spending limits. Most worrying is the manipulation of online discussion to suppress voter turnout. It is also clear from international evidence that interference operations begin long before the official election period covered in the draft Bill.

Evolution of threats

Campaigning and threats will continue to evolve, and even the above list of tactics will soon be out of date. In addition, the work of monitoring and investigating campaigning in a digital age requires much greater resources and adaptability than the policing of posters, leaflets and real-world voter mobilisation.

Most countries, including the UK and US, are grappling with how to retro-fit existing institutions for the digital age

Ireland now has the opportunity to build an electoral commission, from scratch, with the full knowledge of how campaigning and threats to elections are being continually transformed by technology. Most other countries, including the UK and US, are grappling with how to retro-fit existing institutions for the digital age.

This does mean, however, that there is no blueprint for what to do. Building a commission that will protect our elections for the next 10 or 20 years will take genuine innovation in institutional design. The question for the drafters of the Bill is not necessarily how to regulate Facebook ads. Instead it is how to institutionalise a harms-based approach – similar to that being taken in European digital policy – in a way that provides predictable and implementable rules for our elections. This is both a daunting and very exciting prospect, but it is doable if the right people can be brought together.

And it needs to be done. Faulkner was wrong in one regard, political campaigning is not like “promoting a concert”. Election integrity is a national security issue, not only as it determines who makes our laws and the wording of our Constitution, but because our system of governance would collapse without trust in our democratic processes.

We may feel Ireland has room for complacency in this regard, but the prospect of a Border poll should worry us and give us the urgency we need to get this done within the Government’s proposed timeframe of the end of the year. It could be argued that not since the Belfast Agreement has there been a greater need for trust in the process and outcome of a referendum.