AO 2015-12: Media company may develop app to match users with candidates based on political views

Ethiq, Inc., a non-partisan, for-profit company, may develop and market a mobile application (the App) that will enable users to identify candidates and corporations who may share their views on a variety of political, social, and economic issues. Since Ethiq will only use aggregate contributor data collected from disclosure reports filed with the Commission, it may license its proprietary algorithm and dataset to generate revenue. The company may also sell advertising space at the usual and normal charge through the App without making contributions or expenditures.

Background
In order to help its users "make more educated voting and purchasing decisions," Ethiq has developed a free, downloadable mobile App that will help users identify candidates and corporations that align with their views on a variety of political, social and economic issues. Users will create a personal profile on the App by answering a series of questions relating to current events, politics and social issues. Ethiq will then attempt to match users with candidates and corporations who share their views by compiling factual information such as voting records, public statements, and information retrieved from reports filed with the Commission, such as contributions received by candidates, contributions made by a corporation''s separate segregated fund (SSF) and contributions made by top executives of a corporation. Based on users'' answers and the information that Ethiq will compile about candidates and corporations, Ethiq''s algorithm will then assign an individualized score to corporations and candidates based on their match with the user''s individual values.

Ethiq maintains that while it will attempt to match users with candidates and corporations, it does not support any candidate, party, organization or cause and will not engage in any express advocacy for or against any candidate.

Ethiq also plans to sell digital advertising space on the App to third parties, including candidates and other political committees at current market rates. It also will license its proprietary algorithm and dataset to companies conducting market research. Ethiq states that it will not provide licensees or users with any individualized contributor information taken from reports filed with the Commission.

Analysis
The Federal Election Campaign Act (the Act) and Commission regulations prohibit corporations from making contributions to federal candidates. 52 U.S.C. § 30118(a). A contribution includes "any direct or indirect payment, distribution, loan, advance, deposit, or gift of money, or any services, or anything of value...to any candidate, campaign committee, or political party or organization, in connection with any [federal] election..." 52 U.S.C. § 30118(b)(2) and 11 CFR 100.52(a). Since Ethiq proposes to distribute factual information about candidates to the general public, the Commission noted that it was analogous to a corporation''s ability to develop and distribute voter guides, which are permissible under Commission regulations. See 11 CFR 114.4(c)(5). Ethiq''s algorithm also resembles a similar method proposed in AO 2014-07 (Crowdpac), which also matched users to like-minded candidates based on users'' political views. Based on these similarities, the Commission concluded that Ethiq is permitted to display factual information about candidates and corporations without such display constituting a contribution.

The Commission concluded that Ethiq is permitted to use Commission data to assist in matching users to candidates and corporations since the aggregated data that Ethiq will make available does not contain contributors'' individualized contact information from disclosure reports filed with the Commission. The Act requires political committees to disclose the name, mailing address, occupation and employer of any individual who contributes more than $200 in a calendar year to the committee (or more than $200 in the election cycle, if made to a candidate committee). 52 U.S.C. §§ 30101(13)(A), 30104(b)(3)(A). However, the Act prohibits any information copied from Commission reports from being sold or used by any person for the purpose of soliciting contributions or for commercial purposes. 52 U.S.C. § 30111(a)(4). Since Ethiq''s proposed use and presentation of the data to users consists of non-individualized contribution data that is presented in aggregate form, the Commission concluded that Ethiq''s proposal is permissible under the Act and Commission regulations. Similarly, Ethiq is permitted to license its algorithm and dataset because, as proposed, the data provided would not contain individual contributors'' contact information. The Commission has previously held that sale and use of Commission data that does not contain "sufficient information to generate solicitations" is permissible. See AO 1995-09 (NewtWatch).

Ethiq is permitted under the Act and Commission regulations to sell advertising space at the usual and normal charge to candidates and political committees. In previous advisory opinions, the Commission has recognized that advertising space provided to candidates and other committees at normal market rates does not result in a contribution, so long as the seller makes advertising space available to candidates and committee on the same terms and conditions as other advertisers. See AOs 2011-19 (GivingSphere) and 2005-07 (Mayberry).

Finally, in implementing its proposal, Ethiq will not make contributions or expenditures or engage in other activities that would trigger a reporting requirement under the Act or Commission regulations.

Date Issued: November 13, 2015; 6 pages

Resources:

• Advisory Opinion 2015-12 [PDF]
• Commission discussion of Advisory Opinion 2015-12