The 'Poof!' election

Snapchat is going to be huge in 2016 — and regulators have no idea how to handle it

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As he gears up for a presidential run, former Maryland Gov. Martin O’Malley held a conference call with donors and supporters Thursday night, informing them that he would make some kind of announcement on May 30.

He also had a message — and an exclusive photo — for his followers on Snapchat.

“Stay tuned for May 30th…” he said, referring to the date when he’ll announce whether or not he’ll challenge former Secretary of State Hillary Clinton for the Democratic nomination.

O’Malley, who is widely expected to run, is one of a handful of politicians experimenting with Snapchat, a messaging app that has exploded in popularity over the past year.

O’Malley’s team has found it useful — along with the streaming app Periscope — to engage a broad audience. They’ll post candid photos and videos of O’Malley’s impromptu guitar-playing on the stump, for example.

Sen. Rand Paul (R-Kentucky), who declared his candidacy for the Republican nomination last month, has been using the service for almost a year and a half in an attempt to garner support from young people — and young followers. Rep. Sean Duffy (R-Wisconsin), of “Real World” fame, is spearheading Snapchat’s use in the House of Representatives. Other campaigns said tentative plans with Snapchat are in the works, or that they’re looking to the potential of experimenting with the service.

Combine that with the news that Snapchat has hired Peter Hamby, a well-respected CNN political reporter, to head its new news division. It’s a good bet that Snapchat stands to be the breakout app of the 2016 campaign, much in the same way other services like Twitter and YouTube have blossomed in the recent past.

“In every election cycle, campaigns will have new technology to employ,” said Paul S. Ryan, the senior counsel for the Campaign Legal Center. “In that sense, it’s nothing new. We’ve gone through this before.”

What is new, however, is the potential conundrum that an app like Snapchat uniquely presents. One of the key features that has made it popular with young people is the fact that its messages disappear within seconds — unless the user receiving the Snapchat takes a screenshot.

For its part, the Federal Election Commission sounds quite unsure how and if it would attempt to regulate not just Snapchat, but any app. Julia Queen, a spokeswoman for the FEC, told Fusion that the commission has “internet regulations but they don’t specifically cover apps.”

The commission has also issued advisory opinions — which Queen said is “its official response to a question about how federal campaign finance law applies to a specific factual situation” — on issues arising from text messages and campaigns.

The potential challenge here for the FEC, Ryan said, would come in enforcement. If someone wants to break the rules via Snapchat, how would anyone know?

“That Snapchats do disappear could present an interesting enforcement challenge for the FEC,” Ryan said. “You can subpoena email. Tweets are public. You can examine archived records. That seemingly would not be the case with Snapchat.”

Fusion also reached out to the House Ethics Committee as part of a story on Duffy, who frequently uses Snapchat to communicate with his staff and constituents. They did not have comment.

FEC Chair Ann Ravel responded to a tweet last year asking what she thought about a story that detailed potential violations involving the use of Twitter.

That story detailed how some Republican groups and allied “super PACs” shared polling data through anonymous, sometimes West Wing-themed Twitter accounts. Super PACs, which can raise unlimited amounts of money to support candidates, cannot directly coordinate with candidates or official party committees.

The question in the story is whether or not those messages violated election law. It wasn’t enough that the information was posted publicly — anyone can see those messages. But Ryan said it would be a violation if there was a private “decoder ring” that groups shared with one another to decipher the poll numbers.

Could there be a similar issue arising with an app like Snapchat — where groups could send each other sensitive information that could disappear without a trace?

“The potential problem would be that there could be no record of violations with the law,” Ryan said.

The proverbial ‘smoking gun,’” he added, “disappears. It’s a unique mode of communication that evaporates.”

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WASHINGTON, DC - FEBRUARY 12: U.S. Sen. Rand Paul (R-KY) speaks in front of U.S. District Court to announce the filing of a class action lawsuit against the administration of U.S. President Barack Obama, Director of National Intelligence James Clapper, National Security Agency Director Keith Alexander and FBI Director James Comey. Paul said he filed the lawsuit to stop NSA surveillance of U.S. phone records because Obama has Òpublicly refused to stop a clear and continuing violation of the 4th amendment.Ó (Photo by Win McNamee/Getty Images)

But for now, most candidates are looking past the potential regulatory issues and see the app as a potential goldmine for attracting younger eyeballs. Paul’s team has used the app to provide a behind-the-scenes look into the candidate’s stump appearances, as well as glimpses into television interviews and more.

Sergio Gor, a spokesman for Paul, told Fusion that the campaign doesn’t think about any of the prospective regulatory snafus. But he said Paul views the app as an essential tool toward growing the Republican Party’s reach with an expanded base of voters.

Paul “believes that we must take our message far and wide,” Gor said. “As the first member of congress to have joined Snapchat in January 2014, our team has discovered that we are able to reach a young and highly energized audience. Senator Paul has made it a mission to make the Republican party bigger and bolder and engaging new audiences such as Snapchat is vital if we want to grow the party.”

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