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Subpoenas likely if Facebook resists Russia inquiries

The discovery that a Russian company bought election-related Facebook ads in last year’s presidential race opens new avenues for Justice Department and congressional investigators and likely will lead to subpoenas for confidential records of social media advertisers, former prosecutors say.

Facebook’s disclosure, which a key Senate Democrat called “the tip of the iceberg,” appears to show that Russians searching for ways to harm Democrat Hillary Clinton’s presidential prospects broke criminal laws barring foreigners from attempting to influence U.S. elections.

The findings could ease investigators’ efforts to win Facebook’s voluntary release of records showing whether Russian intelligence agencies went even further to boost Donald Trump’s chances – by buying far more ads with much stealthier methods than the easily traceable $150,000 in purchases that the company divulged on Wednesday.

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If Facebook, Twitter and other social media firms don’t cooperate, subpoenas could be in the offing.

The evidence of Russian ad buys on Facebook "is likely to be of great interest to all of the entities investigating Russian interference with last year’s election,” said Jennifer Rodgers, a former assistant U.S. attorney who now heads the Columbia University law school’s Center for the Advancement of Public Integrity.

“To the extent that Facebook and other social media companies don’t voluntarily cooperate, I would expect subpoenas to be issued and other legal avenues to be pursued," she added -- though it’s uncertain whether the Republican chairmen of the House and Senate Intelligence Committees would oblige Democrats' push to compel cooperation.

Russia’s use of social media is a focus of investigations into the Kremlin’s massive, multi-pronged cyberattack by Justice Department Special Counsel Robert Mueller and the congressional intelligence committees.

Virginia Sen. Mark Warner, the ranking Democrat on the Senate Intelligence Committee, said Thursday that he has believed since the beginning of his panel’s investigation that Russians were using “the very social media sites that we rely on for virtually everything – the Facebooks, Googles and Twitters … to intervene in our elections.”

Addressing a major intelligence conference in Washington, Warner called “the tip of the iceberg” Facebook’s revelation that it had tracked thousands of the ads to a Russian company linked to a so-called, Kremlin-directed “troll farm” that spread Russian propaganda.

The sponsored Facebook ads pop up near the top of Facebook users’ private news feeds. Ads that are targeted to a certain subset of people are known as “dark posts,” because only the recipients see them. Many such ads are designed to automatically disappear once they’ve been viewed by Facebook customers.

U.S. intelligence agencies also say Russian operatives unleashed automated attacks using computer commands known as “bots” to circulate fake news about Clinton, often via phony Twitter accounts.

Warner said he wants Facebook representatives “to come back in” for further questioning by Senate investigators.

“I want to see Twitter back in” as well, he said. “I want to see others come back in.”

No evidence has surfaced that Facebook officials knew about the Russian ads until the recent completion of an internal inquiry. A company official, who spoke on the condition of anonymity, told McClatchy it considers that inquiry to be a starting point for further review. So far Facebook has searched mainly for the most easily found accounts traceable to Russia, but not those that may have been created using LLCs and other entities whose origins are more difficult to track.

Facebook usually puts up a legal fight over demands for client information, but the company’s published policies make exceptions in the case of subpoenas in criminal investigations and, presumably, in counterintelligence investigations like the ones into Russia’s cyberattacks.

Company spokesman Andy Stone said the firm is “cooperating with authorities” and “we are investigating, as well.”

If investigators serve the company with a subpoena, he said, “we will process it in accordance with our policies.”

A spokesman for Mueller’s office declined to comment on whether it has sought or will seek subpoenas from the grand jury it is working with to obtain Facebook’s records.

But Melanie Sloan, a former federal prosecutor who is a senior adviser for the new watchdog group American Oversight, said she is sure that Mueller “is taking a hard look at this” and will ask a grand jury to subpoena the company if it doesn’t voluntarily provide access to the purchasers of all sponsored ads.

She said “the latest revelations regarding the Facebook ad buys suggest numerous crimes, including conspiracy to defraud the United States.”

If Russia were found to have used front companies or loosely regulated U.S. nonprofit groups to conceal the source of funding while spreading fake or harshly critical news about Clinton over Facebook, then investigators would want to know whether any were targeted to swing states or districts crucial to Trump’s upset victory.

Former New York federal prosecutor Jaimie Nawaday, now a partner in the law firm of Kelley Drye & Warren LLP, said even without collusion, such activity would rise to a new level of illegality.

“If Russian agents were using front companies to purchase advertising in the United States in order to promote federal criminal activity surrounding an election,” she said, “that would be classic money laundering.”

Peter Stone is a McClatchy special correspondent.

Greg Gordon: 202-383-6152, @greggordon2

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