July 12, 2006

Nevada: Not Just Another Opinion Poll

Daniel Rosen, a candidate for the second congressional district of Nevada, hopes to win his seat with the help of Nevada Vote Direct.

Nevada Vote Direct is a breaking digital technology that allows constituents of the district to register and vote on a full range of issues without restriction or limitation simply by logging on the Net. And get this…. Rosen pledges to vote in Congress exactly as the citizens of his district have voted online via the Vote Direct website.
 
Polls are open all day everyday and voters may also choose to vote via secure telephone line. Membership is to open to all voters in the district and voting is a right not a requirement. This system aims to allow citizens to exercise control over how their representative in Congress votes on legislation.
 
Nevada Vote Direct marks a milestone in the history of political campaigns and the Internet. This voting system is the first application of digital technology designed to make the government responsive to its citizens. 
Check out the press release:
Congressional Candidate Makes History with Nevada Vote Direct

Posted by Buzz Webster at 11:26 AM | Permalink | Comments (0)

May 15, 2006

The COPE Act 2006: Infringing on Our Internet Freedoms

Born in the Republican-controlled House Committee on Energy and Commerce (HCEC), the Communications Opportunity, Promotion, and Enhancement (COPE) Act of 2006 is a grim vision of the future of Internet freedom. 

To understand the implications of passing the COPE act into law, one must first  become familiar with the word "net-nuetrality".   Net nuetrality is what keeps the internet a force for economic innovation and free speech; its a highly valued principle of the internet that allows users freedom of access to any number of websites, blogs, etc despite what server or service provider they may be using. 

The COPE Act seeks to change this and it is not suprising to learn who is spear-heading its passage:  chief telecom and Cable-television companies like Verizon, AT&T, Comcast, and Bellsouth.  The COPE Act would allow companies to block certain websites to its users; even worse, wealthy political parties or lobbyists could pay to have companies block their rival websites or blogs. 


Currently, the Federal Communications Committee has the power to prosecute companies attempting to block access to certain sites.  HCEC legislators defending the COPE Act assert that the FCC should not have the power to regulate these internet companies' business models.  But what our liberties as users?  Should my service provider really be able to regulate what I can and cannot view, based on its own monetary interests?  I don't think so. 


Stop the COPE Act


The Internet Doesn’t Play Favorites — and Neither Should Congress


Summary of the COPE Act

Posted by Buzz Webster at 02:08 PM | Permalink | Comments (0)

March 24, 2006

France Takes a Bite Out of Apple

French lawmakers approved copyright legislation that requires online music sellers to make songs available for use on any digital player. The legislation has sparked criticism from companies and debate abroad.

French lawmakers approved copyright legislation that requires online music sellers to make songs available for use on any digital player. The measure passed in the National Assembly and will now move to the Senate for debate and a vote. The vote is expected in May.

The law would force Apple Computer to make the songs it sells at its iTunes music store playable on devices that compete with its iPod. Apple has responded negatively to the legislation calling it, “state-sponsored piracy."

Meanwhile, the debate over the law has spilled out beyond France’s borders. France is pushing the European Union to adopt similar legislation, while across the Atlantic, representatives in the United States have condemned the French legislation.

Related Articles:
Challenge to iPod Restrictions Advances in French Legislature
http://www.nytimes.com/2006/03/22/technology/22ipod.html

Apple's Core Problem with France
http://news.bbc.co.uk/2/hi/programmes/newsnight/4837834.stm

Apple Calls French Law 'State-Sponsored Piracy'
http://news.com.com/Apple+calls+French+law+state-sponsored+piracy/2100-1025_3-6052754.html

Posted by Buzz Webster at 09:39 AM | Permalink | Comments (0)

February 15, 2006

Net Firms Face U.S. Congressional Scrutiny

Four U.S. Internet companies eager for a foothold in China will face Congressional questioning today.

Read More and watch a video of the hearing at NYtimes.com:

House Member Criticizes Internet Companies for Practices in China

http://www.nytimes.com/2006/02/15/technology/15cnd-internet.html?_r=1&oref=slogin

 

 

Posted by Buzz Webster at 10:10 AM | Permalink | Comments (0)

November 16, 2005

U.S. Maintains Control of the Internet

To Kick off the WSIS, an agreement on Internet Governance has been reached. US- based Internet Corporation for Assigned Names and Numbers (ICANN) will continue as the main governing body of the global computer network, but the agreement leaves the door open for future discussions.

Read what the International Press has to say about the Internet Governance Agreement...

US Retains Control of Internet Traffic System (Deutsche Welle)

http://www.dw-world.de/dw/article/0,2144,1780970,00.html

Compromise on overseeing Internet opens World Summit on Information Society (National Post, Canada)

http://www.canada.com/national/nationalpost/news/story.html?id=ec6b1cbc-17a0-44a9-9521-8b20cd4f820e

More talk on net's future (BBC)

http://news.bbc.co.uk/1/hi/technology/4442336.stm

Posted by Buzz Webster at 03:31 PM | Permalink | Comments (0)

November 03, 2005

House Defeats Online Freedom of Speech Act

The House of Representatives voted 225 to 182 not to send the Online Freedom of Speech Act to the Senate, slowing the process of extending Campaign Finance legislation to the Internet.

The Federal Election Commission is under court order to finalize rules extending a controversial 2002 campaign finance law to the Internet. Unless Congress acts, the final regulations are expected to be announced by the end of the year.

Opponents of the reform plan mounted a last-minute effort to derail the bill before the vote on Wednesday evening. Liberal advocacy groups circulated letters warning the measure was too broad and would invite "corrupt" activities online, and The New York Times wrote in an editorial this week that "the Internet would become a free-fire zone without any limits on spending."

Democrats Defeat Election-Law Aid for Bloggers

http://news.com.com/Democrats+defeat+election-law+aid+for+bloggers/2100-1028_3-5929587.html?tag=nefd.top

Posted by Buzz Webster at 09:29 AM | Permalink | Comments (0)

August 31, 2005

A Campaign Without the Internet?

Internet-Savvy candidates are hampered by Japan's archaic election laws.

Contributed by Steven Clift

When the head of Japan's top opposition party gave a heated speech in Tokyo this week, party officials did what seemed natural in one of the world's most technology-savvy countries -- they put a movie clip of the speech on the party Web site.

But only hours later, election officials called the Democratic Party of Japan to say the movie clip was in danger of violating the country's election laws. By Wednesday morning, the video was gone.

Candidates in Japan's Sept. 11 elections for the lower house of Parliament are finding their efforts to reach out to voters via the Internet hampered by the nation's 1950 election laws.

The regulations stipulate that each candidate can only distribute 35,000 postcards and 70,000 leaflets during the official election campaign period. TV and radio spots can be used by parties, but not individual candidates.

The law effectively bars all other media, preventing candidates from using the Internet and e-mail to disseminate images, and parties and candidates from updating their Web sites until after polls close.

Critics say it's time for an update.

"Until now, speeches on the street, as well as TV and newspapers, have been enough to reach out to voters during elections," said Chikako Aoki of Yes! Project, a group established by young business leaders last week to get more young people interested in politics.

"But times are changing, and media used in election campaigning also need to change," she said.

The restrictions are coming to the fore in this year's hotly contested race for the 480-seat lower house in which Prime Minister Junichiro Koizumi's Liberal Democratic Party and their coalition partners are pitted against the DPJ and other opposition parties.

The no-Internet policy could especially hinder Democrat candidates as they try to reach out to Web-savvy city voters, among whom they have made significant gains in the last two elections. The LDP's traditional power base, meanwhile, is in the countryside.

"The DPJ has repeatedly called for election laws to be reformed to allow for better use of the Internet, but for now we intend to abide by current regulations," said Katsuhiro Harada, an official in charge of the party's campaign.

"The feeling is that the laws are outdated," he added.

The clash between the 50-year-old campaign law and 21st century politics is not without a price for the LDP. The country's best-known Internet entrepreneur, Takafumi Horie, is running as an independent, but with the backing of the ruling party.

Horie has stopped updating his popular Internet blog -- which was registering over 50,000 hits a day -- since Aug. 18, the day before he announced his candidacy.

Livedoor, his Internet services company, has also stopped carrying news stories on its Web portal site that mention specific election candidates, spokesman Kazuyoshi Omura said. The site plans to run an election special as soon as the elections are over.

Although individual candidates also cannot use the radio or TV to call for votes, parties are allowed to run TV commercials, which began airing across the country on Tuesday.

Koizumi dissolved the lower house on Aug. 8 and called next month's elections after the upper house rejected his bid to split up and sell the postal delivery, savings and insurance services, creating the world's largest private bank.

Since then, he has ousted anti-reform lawmakers from his party and recruited celebrities like Horie to run against his former colleagues.

On Wednesday, the LDP ran a commercial with the silver-haired Koizumi -- who took office in 2001 -- looking serious in a crisp suit.

"Four years ago, I promised the public that I will pursue reforms, even if that meant breaking up the LDP. Postal privatization is a promise that I made to the Japanese people," he says.

In the DPJ ad, Katsuya Okada, head of the Democratic Party of Japan -- also in a suit against a pure white background -- calls out to voters for change.

"Change is definitely needed in politics," Okada says. "Don't give up on Japan -- the Democratic Party." (AP)

http://mdn.mainichi-msn.co.jp/national/news/20050831p2a00m0na026000c.html

Posted by Buzz Webster at 10:24 AM | Permalink | Comments (0)

August 12, 2005

British MP Calls For Updated Laws To Fight Cyberjihadis

A recent BBC documentary on the New Al Qaeda illustrated the "urgency" of the need to help police to fight terrorist organisers on the net. Labour party MPs are responding to this with calls for new legislation to make fighting terror on the internet easier.

 A Labour MP is calling for updated legislation and greater international co-operation to make it easier for police to track and trace terrorist recruiters, animal rights extremists and other criminals on the net. Margaret Moran MP, chair of all-party Parliament Industry group EURIM (http://www.eurim.org.uk), said that the police "urgently" need resources to find extremists who "use the internet to ensnare those who are alienated from society and turn them from sympathisers into enthusiasts and then fanatics".

Moran said Peter Taylor's recent BBC documentary on the New Al Qaeda illustrated the "urgency" of the need to help police to fight terrorist organisers on the net. The first part of the three part documentary - subtitled Jihad.com (http://news.bbc.co.uk/1/hi/programmes/4683403.stm) - argued that media-savvy cyberjihadis are manipulating the internet for training, recruitment and propaganda. In contrast with El Reg's view (http://www.theregister.co.uk/2005/07/27/bbc_al_qaeda_internet) that there "probably is a worthwhile programme to be made about the internet's impact on terrorism, but this isn't it", Moran was obviously quite taken by the programme.

"It was apt that the programme was followed by 'The Siege of Darley Oaks Farm (http://news.bbc.co.uk/1/hi/business/4708677.stm)' because the Animal Rights activists and other extremist groups are known to use similar techniques, as do paedophile rings similarly seeking to attract and 'groom' their victims. Meanwhile reputable service providers are often frustrated by their inability to co-operate effectively with the police in tracking and tracing illegal traffic across boundaries," she said.

"We urgently need to update and strengthen the penalties under the Computer Misuse and Data Protection Acts, to enable the cross-border co-operation routines for extraditable offences to be used to help track and trace illegal traffic, including those who access files of personal data to help identify victims for targeted acts of terror as well as of fraud."

Moran reckons a lack of police powers is hindering efforts to trace criminals and terrorists. But tracking people on the net once they know what they're looking for seldom seems to be a problem for police in practice. Getting the raw intelligence so that you know who to watch is the real challenge and one that Moran's recommendations don't really address. Rather than creating a climate that encourages service providers to blithely comply with police requests to conduct fishing expeditions it might be better to put more resources into human intelligence. We're inclined to agree with Bruce Schneier that broader surveillance is unlikely (http://www.theregister.co.uk/2001/09/26/broader_surveillance_wont_prevent_terrorism/) to prevent terrorism.

EURIM has conducted a two year study on cybercrime and is now lobbying for support to turn its recommendations (http://www.eurim.org.uk/activities/ecrime/outputs.php), some of which are geared towards helping police to tap into an extra pool of skilled IT workers, into action.

"We also need to provide effective frameworks to enable the police to use the skills and resources of those who run the internet to help identity and record what is happening, when it is happening. This raises serious issues of accountability as well as the need for common training and protocols but some form of routine to enable computer experts to be used as 'limited warrant specialist constables' or 'community support officers', as in done in the United States, appears long overdue," Moran added. ®

 http://www.theregister.co.uk/2005/08/11/eurim_cyberjihad_interdiction/print.html

 

Posted by Buzz Webster at 11:24 AM | Permalink | Comments (0)

July 19, 2005

FEC-Threat To “Digital” Democracy

A Critical Review of Recent Hearings on “Internet Communications” –
A Federal agency looking for ways to regulate politics on the Internet

The following is an article from contributing editor Peter Bearse:

The FEC recently held two days of hearings on “Internet Communications” to receive testimony and query those testifying on the Commission’s newly proposed rules to regulate certain aspects of political “speech” on the Internet under the statutory authority of the Bipartisan Campaign Reform Act (BCRA). These propositions were posted in the Federal Register of April 4th.[1] Written testimony had to be submitted by June 3rd. 815 responses were received. 21 of those submitting were invited to provide oral testimony in Washington on June 28th or 29th, 2005.
 
The stated reason for the hearings was that they were required by Court order of the Federal District Court of the District of Columbia as a result of their decision in the case of Christopher Shays and Martin Meehan, Plaintiffs v. FEC, Defendant. The Court agreed with Plaintiffs that FEC rules to implement the Bipartisan Campaign Reform Act erred in not including the Internet among venues for “public political advertising.”[2]
 
The rationale for holding the hearings at this time was challenged by one of the Republican commissioners, Vice Chairman Michael Toner, at the outset of the hearings. He both stated and wrote that:  
 
“some…contend that…the Commission has no choice but to regulate online politics in some manner. I do not agree. The Commission is challenging the legal standing of the Shays plaintiffs…If the Commission prevails on appeal, the District Court’s ruling could be vacated and made null and void. Moreover, even if the Shays ruling is upheld, it would apply only in the District of Columbia and would not be a binding decision anywhere else in the United States…. If the Commission decides to regulate online political speech, it should do so only if a majority of Commissioners conclude independently… that the McCain-Feingold law requires the FEC to regulate the Internet.”[3]  
 
The representative of the AFL-CIO at the hearings, Lawrence Gold, testified strongly in
support of Commission Toner’s position, stating that the FEC rulemaking is “voluntary,” proceeding from “overwrought language in the Shays decision.” Nevertheless, the hearings proceeded according to the following schedule.
 
The even divide of the FEC along party lines, which critics contend makes the body dysfunctional, was quite apparent in the difference in views towards Internet regulation between Democrat and Republican members. The Chairman of the FEC this year is a Democrat who clearly stated the position of himself and his Democratic colleagues among the Commissioners after citing some figures from the FEC database.[4]
 
v      “It is important that we not allow prohibited expenditure of soft money on Federal elections; and (key question)…
v      Are we failing to close loopholes via the Internet; for example, allowing an e-mail with a video clip to go out to millions of voters at a cost of over a $100,000?”
 
 FEC Proposed Rules
 
The FEC NPRM proposed several new rules that would govern political speech over the Internet and asked for comment on many questions of how to approach certain aspects of the concerns that the rules have been designed (or not yet designed) to address, as follows. The Notice contained many more questions than outright proposals – a game of 20 Questions, anyone? The proposals are bulleted; questions on which “The Commission seeks comment” are numbered, not in any priority; rather, placed beneath the proposal to which they most pertain.
 
v      Exempt the Internet from definitions of contributions and expenditures for certain media activity.
 
  1. Should we regulate Internet political ads that may amount to “in-kind” contributions -- those placed for free or in exchange for something else?
 
  1. Whether any payments should be regulated for ad content-creation of Internet ads appearing on one’s own website that “promote, attack, support or oppose” (PASO) Federal candidates.
 
  1. If e-mail lists for are contributed in-kind or acquired via some non-cash transaction, should the political communications enabled by such lists also be regulated.
 
  1. Can Internet media be viewed as “periodical”(s) via “facilities,” so that “public communications” over the Internet generally qualify for the media exemption under existing statute? 
 
  1. What should be the breadth of coverage of the media exemption for the Internet?
 
v      Regulate “coordinated” communications over the Internet; [5]
 
  1. Should Internet “public communication” be subject to “coordinated communication” (CC) regulations (such as the “three-pronged, content-prong” tests specified on p.16973 of the Notice)?
 
  1. Should the Commission exempt from CC rules those political ads that require payments to vendors to create but that are placed on the payor’s own website?[6]
 
  1. Should the FEC also exempt from CC rule ads that are place on websites of prohibited (corporate, labor) sources for free?
 
  1. Should the Commission require “Special Segregated Funds and non-connected political committees” to use Federal funds to pay for political communications over the Internet?
 
10.   Should “announcements” placed for a fee also be considered “general public political advertising” subject to regulation?
 
  1. Would payments to a blogger for political content on his website be essentially similar to “general public political advertising” that should be regulated?
 
v      Possible redefinition of “generic campaign activity” under the Act. This is now defined as public communications that cite a political party without taking any position on the party’s candidates.
 
  1. Should the FEC continue to define “generic campaign activity” as a “political communication” that is a “general public political advertisement,” or should the definition be changed?
 
v      Modify rules governing disclaimers; that is…
Ø       Require them only on paid Internet political advertisements and on…
Ø       unsolicited” e-mails sent to more than 500 people through an e-mail list that has been purchased.
 
  1. Should disclaimers be required on all Internet political communications? On/for what? Are there alternative approaches?
 
  1. Should we require disclaimers on individuals’ political e-mail communications disseminated using an e-mail list that has been purchased.?
 
  1. Should we require bloggers to include disclaimers on payments for PASO ads or solicitations for contributions on their websites?
 
v      Exempt certain political volunteer activities (which?) on the Internet from BCRA definitions of “expenditures” and “contributions.”
 
  1. Should the FEC continue to employ a 500 in number threshold for e-mails sent out, beyond which (>500), regulation would apply?
 
  1. Should the minimum cost threshold of $250 in existing rules apply, too?
 
  1. Should the Commission exempt from regulation all dissemination, distribution or republication of campaign materials on the Internet?
 
v      Amend the rules pertaining to use of corporate or labor organization facilities to ensure that they apply to the use of computers, software and other Internet equipment.
 
  1. Should we exempt paid political ads on corporate or labor sites that are restricted to members?
 
v      Require political committees to identify, account for or estimate (allocate) costs of their Internet activity that should be paid for out of Federal dollars (hard dollars or regulated contributions rather than “soft money”).
 
  1. How to allocate costs of political ads that PASO Federal candidates on political committees’ own websites (so that the entire cost of websites does not have to paid out of Federal (“hard”) dollars)?
 
Highlights of Hearings
 
The previous section not only enables, at a glance, a picture of what the hearings were about (as the FEC Notice does not), it also provides an outline for organizing the testimony and Commissioners’ comments and questions during the hearings – a variety of remarks that are scattered throughout the tapes and transcripts of the proceedings. Thus, let us proceed to review these, proposal by proposal, even though there is some overlap among them and related questions.
 
v      Exempt the Internet from definitions of contributions and expenditures for certain media activity.
 
The FEC seems to assume that bloggers are easily identifiable targets of any potential
regulation of Internet communications. Thus, it was no surprise that the testimony of five of them garnered a good deal of attention during the hearings.[7] The five? --
 
  • Michael Krempasky, RedState.com
  • Markos Moulitsas Zuniga, DailyKos.com
  • Matt Stoller, BOPnews.com
·         Duncan Black, Eschaton (atrios.blogspot.com)
·         Kristinn Taylor, FreeRepublic.com
 
A major issue raised by the FEC in its Notice is the proper scope of the media exemption now enjoyed only by the owners and journalists of the institutional mainstream media (MSM). This means that MSM are exempt from FEC regulation. Krempasky focused his testimony on the question of scope, observing that: (1) media outlets are not easily identified; (2) MSM are not trusted -- even 45% of journalists do not trust their colleagues, a remarkable statistic (source?); and (3) the capacity of the “blogosphere”, including the information and creativity harbored therein, far exceeds the capacity of even the largest, most sophisticated newsroom. He concluded that these features call for the broadest possible exemption.
 
Reed Cox’ testimony seconded that of Krempasky without any qualification, so that the exemption he favors would be “blanket,” not just “broadest.” He observed: “There is no distinction between the soapbox and a broadcast station” on the Internet, where an individual or a group can establish a press, broadcast station or other medium. “Both speakers and listeners are empowered (so)…the media exemption should protect all,” not just institutional media…The FEC has really done a disservice to those of us who are not members of the institutionalized press by what seems to be a media exemption that only touches the institutionalized press…My Center, for example, is also a media operation…Why are we not (also) exempt?” Regulation gives rise to “extra-ordinary transaction costs in the form of legal fees and legal time” that must be borne to effect First Amendment rights (my emphasis).
 
Commissioner McDonald, a “good old boy” from the South, asked: “Can anybody claim the media exemption just because they have an opinion?...The issue is where to draw the line.” Court cases have distinguished “reporter” from “non-reporter.” There was a California case over “blogger privilege.” Is there a scenario where the press exemption cannot or should not be claimed? Mr. Bauer provided a wishy-washy non-response to this line of questioning, so Commissioner McDonald continued to press his queries with Mr. Gold: “Are $20 million dollar political ads via an unregulated Internet a realistic prospect? How could the AFL-CIO do that?” Gold’s response: “We could purchase space on others’ sites but this implies that there is (also) an in-kind valuation problem.”
 
In direct response to urgings throughout the hearings that the Commission provide a much broader or blanket press exemption for Internet communications, Commissioner Mason reminded all in attendance that the FEC must have statutory authority for any regulation. “Our problem is that we must use the tools we have. The tool we have is the statute.” With respect to the scope of the press exemption, the Commission’s authority arises from a statute that sets forth a definable class of entities constituting “media.” “These things must be done through the facilities of a broadcasting station, newspaper or other periodical publication…”  The key word is “facilities.” Whether or not “everything” on the Internet qualifies for the exemption, therefore, is contingent on answering the question: “Is there any way that we could justify and say that the Internet itself qualifies as the facility of a periodical publication, such that any news story, editorial or commentary on the Internet would fall within the media exemption? Cox replied: “You get there a long way by referring to periodical publication…Blogs tend to publish regularly….As for the rest…whatever you could do to expand the media exemption as far as it can extend, that would at least give people the clarity that they would not be subject to regulation by the Commission.”
 
The scope of the media or “press” exemption arose again and again throughout the hearings. The apparent opposition of the Democratic members of the FEC to a blanket exemption for the Internet led Mr. Cox to restate his position, somewhat defensively, saying “Inclusiveness is not a bad thing.” But Mr. Gold was ambivalent. He expressed an apprehension that broadening the exemption implies “widening the number of organizations subject to government approval.” Thus, he advocated broadening but “limit(ing) the broadening.” Cox rejoinder was to state that, without a blanket rule, “there would be a problem” – the likelihood of having to go “case-by-case through the courts.” Gold agreed that the press exemption should allow “smaller” publishers; however, “government approval of who qualifies is a high price of admission.” The challenge, in his view “not insurmountable,” was how to treat Internet facilities as a basis for exemption. Cox replied that the statutory authority could be viewed as enabling individuals or groups of individuals to be covered (exempted) “as long as they are engaging in periodic publication,” which should be interpreted broadly.
 
Commissioner McDonald asked Mark Jaskulski whether he could imagine someone in the Internet arena not being able to avail himself of the press exemption because he was not a journalist. Mark replied that there is no certification for journalists -- “nothing you have to do” to become one. The Chairman noted that, according to UNESCO, to define journalists is to regulate them, contrary to international law. Commissioner Toner said that he considers himself to be a journalist, one who could contribute to National Review online (unregulated) while the same article on his blog would be regulated. According to Duncan Black, “the press exemption applies to a narrow view of journalists (and) all faults attributed to bloggers are pervasive throughout MSM” (he went on to provide many examples). He is concerned that, without the press exemption, Internet media outlets would face more stringent oversight than media owned by major corporations. Consider the case of Joe Trippi. His personal website probably would not escape FEC scrutiny, in contrast to MSM activities.
 
Commissioner Smith asked Kristinn Taylor whether the press exemption should cover FreeRepublic. Taylor replied: “Yes, there is regular, independent reporting on the site.” Toner suggested that the Commission should protect websites rather than blogs. Commissioner Weintraub responded: “I don’t want to regulate bloggers.” Commissioner Smith remarked that the press exemption has also been extended to movies and books so, “clearly, there would be some leeway.” He went on to observe how: (1) the existing press exemption “pertains to the rich,” for if you have enough money, you can buy a press; and (2) all sorts of people are using the Internet “press” for political participation. So, he asked: “Why is the latter “not fulfilling the rule”? (statutory authority)? Jaskulski effectively seconded the implication of Smith’s question by urging a “blanket press exemption for bloggers.” He qualified this, however, by observing that “there is no formal set of ethical guidelines or code of conduct for bloggers.” This led Commission Mason to ask: “Does the government need to mandate ethical conduct?” “No way,” Jaskulski replied; “The blogosphere should develop a code.”[8]
 
 The latter indicates an aspect of possible “self-policing” of the Internet as suggested by Matt Stoller in later testimony. Jaskulski’s fellow Panel 5 testifier, Kristinn Taylor of FreeRepublic.com, simply said: “Hands off the Internet!,” -- no hedging; no qualification. Mason replied by saying that press and individual volunteer exemptions combined would protect the FreeRepublic site. Karl Sandstrom’s testimony during the final Panel (#6) reminded fellow Commissioners (he was once one himself) of the “lesson of ACLU v. Reno, which provided extraordinary protection to the Internet.” Nevertheless, he then proceeded to poo-poo the idea of  “fitting under the press exemption; (because?) It’s futile to create categories of bloggers.” Commissioner Smith asked: So why not reference Internet facilities as a basis for the exemption? Sandstrom’s reply begged another major question that neither he nor others served to answer: “Broadening the coverage of the exemption implies “problems” with respect to MSM. What problems?
 
Thus, again, the issue of the media exemption comes down here, as with regard to other key aspects of proposed FEC regulation of Internet political communication, to a question of “Where do you draw the line?” Not only is there a great possibility of arbitrariness in the drawing, as noted earlier, but there is the issue of the cost and feasibility of regulation. 
 
Zuniga emphasized that online Internet technology is very different from that used to produce offline media. The differences have major implications. Unlike MSM, the ‘Web and ‘Net exhibit…
 
Ø       Low barriers to entry into Internet journalism in terms of investment or other financial costs;
Ø       No gatekeepers impeding entry, either;
Ø       A much more (“purely”) democratic nature;
Ø       Daily exhortations by blog and other participants to engage in some political activity -- an observation also made by Krempasky from the other (“red state”) side of the political spectrum (Zuniga characterized himself as a liberal.)
 
The FEC itself, in paragraph A, p.16970 of its NPRM, notes that “the Internet has
unique characteristics that distinguish it from traditional media” and cites several technological and economic differences. These include that :
 
·         The Internet offers “unlimited, low-cost capacity for communications of all
kinds...,” communications that are less “invasive.”[9]
·         “individuals must generally be proactive in order to access information over the Internet…(via) interactive, real-time, two-way communications…in further contrast to the passive, one-way, traditional media…”[10]
 
Boulet, testifying in Panel 5, provided another slant on these differentials, emphasizing the low cost of Internet communications relative to the high cost of regulating them.  This perspective is similar to that of cost-benefit analysis in that it suggests a benefit/cost ratio for judging the efficacy of FEC regulation. Boulet specifically questioned whether focusing on e-mails and the copying, forwarding and republication of campaign materials represented the “best use of regulatory resources.” He claimed that it is not worthwhile to buy e-mail lists; it is better to develop your own. E-mail boxes are far more “private” than “postal.” This implies an element of self-regulation, a feature that the FEC might try to build upon – a view supportive of the “self-policing” possibility suggested in the testimony of Matt Stoller in Panel 2. 
 
As if to claim an Internet exceptionalism that might put it beyond the pale of the Commission, Larry Noble of the CRP, one of the leaders in the push to reform campaign finance law, began by stating that “The Internet is beyond the FEC’s knowledge and scope. New rules, if not carefully constructed, would have a chilling effect on Internet political speech.” But he then went on to express the great fear of the Democratic members of the Commission and of CFR advocates generally – that of “opening up a new loophole” through which big money can “corrupt” political campaigns. Noble continued: “The Internet will attract increasing amounts of big money.” Thus, he concluded his testimony by providing a strong, prima facie case for what others called “prophylactic regulation” – rulemaking grounded in a fear of what might happen rather than evidence of harms actually experienced (emphasis in bold mine).
 
This fear was underscored by the Chairman’s reference to a report on CNN.com: Jupiter Research projects that expenditures on Internet advertising would rise 27% to $10.7 billion in 2005. Research based on the FEC’s own records show $25 million of ‘Web or Internet use expenditures showing up just on Schedule B. Among 527’s, we came up with $2.2 million of disclosured disbursements. “The biggest spender in this area, Progress for America, shows $900,000 for e-mail list services; over $150,000 for website services, and over $213,000 for Internet banner ads.”
 
v      Regulate “coordinated” communications over the Internet
                              
The money involved in coordinated political communications appears to be the Commission’s focal concern. According to Gold’s testimony, it is exemption of the Internet from rules regarding coordinated communications (CC) that opens the door for abuse. “The Act (BCRA) is about regulating money, not speech.” The Chair than asked whether it would be sufficient for the Commission to reword the CC segment of their regulations to say: “For the purposes of this section, public communications shall include communications over the Internet.” Gold: “Yes… The Commission would not have to do anything else.”
 
Also recall the motivating (“anxiety-inducing”[11]) fear of the Commission, underscored  through a hypothetical example. Here again, Gold’s response went immediately to the point: “The question here is not triggered by use of the Internet. Corporate and labor expenditures are already restricted by law,” adding that a “hypothetical…is not a comfortable platform on which to build a regulatory position.” To which the Chair replied: “But the question is very important (since) the hypothetical is not covered by regulation.”
 
Gold’s testimony was also important, not only as representing the views of one among the “prohibited” class of organizations (corporations being the other), but as practically the only one among those who testified in person before the FEC to focus on the practicality or feasibility of trying to regulate the Internet, no matter how soundly based in law some regulations might be. He asked: What costs are included in FEC statistics? How are in-kind contributions valued? -- Dollars estimated for the Internet media may be “disproportionate” (relatively low) to their actual value. What expenditures and really relevant here? To what extent should a union or any other organization be subjected to requirements for burdensome allocation, disaggregation and accounting procedures? What are the costs of trying to regulate the Internet, and what are the costs to those regulated? This concern was shared by Jim Boulet in a subsequent panel.
 
FEC staff Attorney Norton posited the situation of a website for campaign materials established by a wealthy individual for widespread political communication. This “loophole” is also unregulated. It is “coordination,” however, not the other features of such a communication that would trigger FEC action if someone complained about it. The unstated question in this example is: Did the individual coordinate his efforts with a candidate or political committee? 
 
To help answer this question, the FEC has formulated a “three-pronged test for determining whether a communication has been “coordinated”…a communication must:
 
(1)     Be an electioneering communication, as defined in 11 CFR 100.29;
(2)     be a public communication that disseminates, distributes or republishes, in whole or in part, campaign materials prepared by a Federal candidate, the candidate’s authorized committee, or their agents;
(3)     be a public communication that expressly advocates the election or defeat of a clearly identified candidate for Federal office; or
(4)     be a public communication that refers to a political party or a clearly identified candidate for Federal office, is publicly distributed or disseminated within 120 days of an election for Federal office, and is directed to voters within the jurisdiction of the clearly identified candidate…”[12]
 
The problem with this “test” should be immediately evident to anyone: It makes no reference, nor do answers to its questions provide evidence, as to actual “coordination” between anyone who so communicates with others over the Internet and a political committee of a Federal candidate or party supporting such candidate. Application of the “test” simply yields superficial indications that there might, possibly be coordination going on. These indications are far from conclusive evidence. The latter would be hard to come by. If applied, any one “prong” would tend to “chill” political intercourse over the Internet. The test does not allow for the fact that, independently of any “political committee,” individuals and groups of individuals favoring a candidate may be sufficiently inspired to transmit, publish or republish “PASO” or “electioneering” communications and/or “campaign materials” of all sorts.
 
The FEC Chair seemed to recognize that there is a problem here in that uncoordinated “express advocacy” would be regulated. Potentially, it even would be subject to more regulation in that those exercising their First Amendment rights to political communications over the Internet would need to keep track of the costs of their “express communications.” Thus, we proposed in our rulemaking, reported the Chairman, that the FEC would apply an “individual volunteer activity allowance” to non-coordinated activity as well, so that “one need not be a volunteer for a campaign but working totally independently.” He then asked for comment from panelists. Bauer responded: “I support protection of uncoordinated individual expression.” Remember: The latter does not refer to communications with other individuals but to those with political candidates, their committees or other regulated political committees.   
 
Notwithstanding the likelihood that most Internet political communications are not “coordinated,” the FEC seems determined to regulate paid political ads over the ‘Net. As more than one Commissioner remarked, accenting the “fear” noted earlier: There is a possibility of a large loophole if we omit paid ads, including their production costs, from regulation. The testimony of Trevor Potter, a former Commissioner, on the draft rule regarding this, however, was cautionary:
 
“The draft rule is unclear…it’s also unclear with regard to own vs. paid costs. (And, here echoing concerns expressed earlier by Gold): We must be clear about how we are accounting for costs….Payments to 3rd parties move away from individual activities to be sheltered.”
 
Commissioner Toner then chimed in to reiterate another recurring concern of the hearings: How to handle “in-kind” contributions, expenditures or transactions? For example, what if space is given? Potter reminded the Commission that their regulations already cover in-kind contributions. There are two questions here: (1) whether to count “space” if it is provided only by an incorporated entity, and (2) whether a website is in the business of selling advertising. In-kind contributions are implicated in both cases.
 
 Commissioner Weintraub believes there is a problem with Sandstrom’s recommendation (reported earlier): It may be too specific, so that the Commission may have to revisit the regulation every time a new Internet medium arises.
 
v      Possible redefinition of “generic campaign activity” under the Act.
 
“Generic campaign activity” (GCA) is now defined by the FEC as “a public communication that promotes or opposes a political party and does not promote or oppose a clearly defined Federal candidate or a non-Federal candidate.” The FEC requested comments on this definition in their notice.[13] The definition is a narrow construction of the original statutory language. BCRA defines “generic campaign activity” to mean “campaign activity that promotes a political party and does not promote a candidate or non-federal candidate” (2 U.S.C. 431(21)).
 
There are two problems with these definitions. First, it is puzzling that neither of them include “party-building”activities.[14] Most of the latter have come to be treated as “Federal election activity” subject to regulation because they are presumably “connected” to elections that feature candidates for Federal office. “Type 2” of the latter cross references “generic campaign activity” so that this category becomes a sub-category of “Federal election activity.”[15] This categorization is mistaken, as many of the Type 1 and Type 2 activities undertaken by sub-national political party committees have, at the times when they are undertaken, little or no connection to Federal elections. They are primarily localized and oriented to state and local elections. The lack of an appropriate, localized definition or effective focus upon “party building” activity in this definitional morass is, at best, problematic, and at worst, harmful to political parties as many commentators observed when campaign finance reform was being debated, pre-passage of BCRA.
 
Second, both definitions inappropriately make reference to “non-federal” candidates. This reference implicitly allows the FEC to have some discretionary oversight on state and local electoral political activities that are not properly within the Federal agency’s purview, as over certain “party-building” activities noted above, because of the vague phrase “in connection with.” The definition of “generic campaign activity” is thus unsatisfactory, but the Commission would have to ask Congress to revisit BCRA to obtain any basis for redefinition that could make any substantial difference.
 
v      Modify rules governing disclaimers; that is…
 
Ø       Require them only on paid Internet political advertisements and on…
Ø       unsolicited” e-mails sent to more than 500 people through an e-mail list that has been purchased.
 
The FEC already has a set of rules requiring disclaimers or disclosures if “public communications” contain PASO content or solicit political contributions. Thus, the question of to what extent such rules should be applied to Internet communications was on the table for the hearings, primarily via two major questions: Should disclaimers be required for…
1.       paid political advertisements on the Internet; and/or for…
2.       content for which bloggers or website owners have been paid?
 
With regard to the latter, Jaskulski stated that there would have to be a disclaimer on every page of a blog if there had been payments to the blogger. “People would want or need to know.” Boulet, however, “totally disagrees.” So Commissioner Smith asked: “If English First was paid, you wouldn’t need a disclaimer.” Boulet: “No.” Michael Bassik said to focus on paid Internet ads but he also stated that “the consequence of a new rule would be zero. 99% of banner ads already carried disclaimers…No soft money has been spent online. The danger of corruption is hypothetical. The Internet has put political advertising power into the hands of every citizen.”
 
Another question that arose here as with other aspects of Internet political advertising is that of defining a dollar threshold for regulation. Bassik testified that, yes, there should be a spending threshold and that it should be set at $5,000, “the minimum to run a bannered campaign.” “Disclaimer precedent,” moreover, should be followed to require disclaimers “only when there is room for them” (sometimes there isn’t as, e.g., in the small 95 word limit Google ads).
 
Karl Sandstrom, a former FEC Commissioner, pointed out that there is a distinction to be made between “advertising” and “sponsorship.” Those familiar with public radio (PBS, PRI) recognize the difference but also sense its subtlety. The increasing number of notices from “business sponsors” of public radio sometimes seem scarcely different from advertisements.
 
Commissioner Mason questioned Black on the testimony he had provided on the disclosure issue jointly with Zuniga and Stoller, where they had stated: “It should make no difference whether a blogger is compensated for editorial comment or advertising.” What about payments for support rather than ads? Black responded that disclosure requirements should be on party or candidate making payments, not on bloggers when no-one else in the media is required to make such disclosures. But Mason pressed on: “Why shouldn’t a supportive article or commentary require a disclaimer, as being similar to an ad?” Black also pressed on: “There is a question of discrimination…here if the same person were required to disclose on a blog but not on other media where the same or similar message is being presented.” This recalls Commissioner Toner’s very similar observation noted earlier.
 
Commissioner Mason then proceeded to point out that the proposed rules posited some discrimination, anyway. Any public communication put out by a political committee via a non-Internet medium should have a disclaimer, but if it is put out over the Internet, a disclaimer is only required if it is a paid political ad on someone else’s site. For non-political committees, disclaimers are required only for unsolicited e-mails containing express advocacy messages or political fund-raising solicitations to over 500 recipients using purchased e-mail lists. “Is there an alternative basis for disclaimers?”
 
Sandstrom responded that the disclaimer should be on a site controlled by the candidate issuing the ad. “Regulation of the blogger is useless – no advance in public policy… Exempt the blogger from the definition of political committee.” Commissioner Mason then noted that the “500 criterion” for e-mail was taken over from the direct mail context and so it is “too little” in the Internet context. The required disclaimer should be based on exceeding a spending threshold, not on exceeding a number of e-mails sent.
 
Bearse testified that “general public political advertising” on an Internet website or blog should be required to carry a disclaimer  or disclosure if there is any source (“disbursement”) involved other than the website’s or blog’s own author, or some monetary or other transactional (“expenditure”) basis upon which political advertising has been provided. The issues involved here are less those of campaign finance regulation than of intellectual honesty, journalistic integrity and accountability in the “marketplace of ideas” that the political arena is supposed to represent. 
 
v      Exempt certain political volunteer activities (which?) on the Internet from BCRA definitions of “expenditures” and “contributions.”
 
Karl Sandstrom recommended that regulations should be written to exempt postings on websites and e-mails from the FEC definitions of contributions and expenditures. This might leave a loophole but one unlikely to generate much if any “corruption.”
 
Bassick reiterated the position of himself and others that one “shouldn’t require individuals online to follow FEC regulations.” But then the recurring question of applicable thresholds for regulation arose again. If the Commission were to regulate only expenditures and contributions above a certain monetary threshold, what should it be? – the long-standing individual threshold of $200? Bassick said “No; that’s quite a bit low. $5,000 would be realistic.” Others came to suggest or agree to this figure, too, so it is likely to be the one that the Commission will use.
 
v      Amend the rules pertaining to use of corporate or labor organization facilities to ensure that they apply to the use of computers, software and other Internet equipment.
 
Atty. Gold testified that an additional rule with regard to corporate or labor organization use would be “gratuitous and unnecessary” In response to a question from Commissioner Smith, Bauer noted that time constraints for use of corporate or labor Internet facilities are arbitrary.   
 
v      Require political committees to identify, account for or estimate (allocate) costs of their Internet activity that should be paid for out of Federal dollars (hard dollars or regulated contributions rather than “soft money”).
 
Gold’s testimony as to the difficulty of such allocation or accounting procedures was most telling. As an economist, Bearse suggested using the “marginal” (extra, incremental or additional) costs of preparing and sending “PASO” political communications via political committees Internet systems.
 

Conclusion: The Danger Redux

 
Regulatory agencies have an incentive to regulate. It is often staff attorneys that lead the way, to a degree that causes cynics to refer to many new laws as “lawyers full-employment acts.” Questions and remarks of the FEC General Counsel (GC) are indicative in this regard, and worrisome to those concerned about the possibility (“danger”) of Commission overreaching in its response to the Shays Court.
 
GC Norton asked a question of Sandstrom that suggests broadening the scope of Internet regulation even before waiting for the answer:
 
“Does the proposed rule (regarding paid ads) leave major problems untouched? (for) Political party committees are spending increasing amounts of money to reach voters via the Internet, including purchases of e-mail addresses,  websites, and solicitation of contributions. These activities should be governed by election laws.”
 
Sandstrom’s response is pertinent, especially coming from a former Commissioner:
 
“I don’t understand how the sponsors (of the BCRA) and the FEC have come to the position they’ve come to. State and local party committees can no more spend millions of dollars of soft money on the Internet than they can on TV.”
 
Then the GC turned to Mssrs. Bassick and Black, asking:
 
“Are all of these arguments (including lack of any record of abuse from the last election and changing technology)… for not taking on any issues other than what we must tackle in light of the Shays’ decision?” 
 
The two responses were nearly opposite. Bassick, consistent with his earlier testimony, said: “Don’t go too far.” Black stated that a narrow focus “leaves a whole nest of areas out there…perhaps for a future date.” Which of these views do you, the reader, suspect might be more influential?
 
Additional interactions between the GC and FEC staff and Panel 6 brought forth important contrasts between the “money” and “value” considerations in FEC’s CFR regulation. Recall that the Commission has the authority to impute money values to “in-kind” contributions and other political transactions where there is no, or no acceptable, financial accounting. The drift towards money values as paramount is troubling in light of First Amendment and other democratic “values” that came to occupy more of the background than the foreground of the hearings by their conclusion. The interchange with Sandstrom was indicative:
 
            FEC Staff Director: “How would the proposed rules affect OMB Watch?”
 
            Sandstrom: Effects valued at zero. We are a 501©(3).
 
            GC: No value; for example, no dollar cost for developing content?
 
            Sandstrom: “Content has extreme value because it informs the public, but you shouldn’t try to put a dollar value on that…What’s important is the battle of ideas, not dollar value.”
 
            GC: “What if you had production costs? Where would you put that?
 
            Sandstrom: “I don’t need to put it anywhere, under my proposal…because production costs would be valued at zero, too.
 
            GC: “I am trying to imagine a situation where you would have any expenditures to report.”
            Sandstrom: “For most bloggers, there would be no expenditures.”
 
            GC: Which bloggers or websites would have (regulatable) expenditures?
 
            Sandstrom: “None.”
Bearse’s written testimony and response to Commissioners questions pointed out that  FEC rulemaking ignores the primary “value” consideration from the standpoint of individuals’ political participation – the value of their time. The FEC has followed BCRA, an Act that is supposed to reduce the dominance of money in politics, in paying attention only to money and none to the value of political volunteers’ time. This exclusive focus is also apparent in the far greater attention paid to political advertising than volunteers’ activities.
           
To further highlight what is at stake, this review turns the readers’ attention back to “individuals.” This final focus not only helps to underline the dangers of FEC rulemaking on Internet political communications but also to point out what the FEC hearings did not do.
 
The Commission seemingly “protesteth too much” with regard to protecting “individual” political participation, volunteerism and communication over the Internet. The FEC General Counsel (GC) asked a key question that no one attempted to answer during the hearings: “When does an individual carry his individual identity into associations?” This question underlines the danger of the Commission’s first substantial foray into regulation of political speech over the Internet. The GC’s question translates into another that he raised (and the fact that the GC raised it helps to underline the danger): “Where does one draw the line in the definition of a “political committee?” One of the Commissioners remarked that “If any group to elect a candidate is similar to a political committee, why are their political communications not an expenditure and the group not regulated as a political committee.” Bauer remarked that CFR devalues group associations and the right of assembly. “These should be protected.”
 
In this context, the “individual” is almost apocryphal; he or she so quickly and readily becomes associated with some Internet grouping. Robert Bauer remarked that the FEC seemed to reflect a “narrow view of individual interest…Individuals have an interest in unimpeded public space where they are able to connect with politics in a full and diverse form.” He wondered whether the Commission could divide Internet space into unregulated/regulated. Individuals have an interest in the former, too.
 
As Michael Krempasky, blogger at www.RedState.com remarked: “The success of the Internet lies in aggregating human beings for a purpose…the power of millions of voices via the Internet overwhelms even large amounts of money.” If the FEC cannot resist the temptation to view Internet groupings as political committees, then the ‘Net as a site of open, free, unconstrained politics is dead. Thus, it is amazing to this reviewer that there was hardly any attempt to address the challenge put by the FEC’s GC. There was no proposal to modify the definition of “political committee” among the Commission’s proposals. Arguably, this definitional issue is far more important than the proposed regulations that the hearing did discuss; i.e., the item not covered is more important than all that was. It represents an elephant in the kitchen of the FEC’s proposed regulation of the Internet.

 

 

As Staff Counsel representing the Center for Democracy and Technology (CDT), John Morris read a summary statement of his organization’s testimony. CDT’s concern is that:

 

 

“in trying to extend to the Internet rules that apply in the offline world, the rules threaten to chill the remarkable explosion of online citizen political participation in the political process.”   

 

 

Thus the central issue in FEC rulemaking on Internet communications, Morris emphasized, is that the political speech of individuals not be impeded; that is, “not be burdened by campaign finance laws” [even though strong arguments have been made by many others that First Amendment rights have already been violated by CFR,[1] so why should CFR treatment of political speech over the Internet be any different?]  CDT strongly recommends and offers “(1) A set of “principles” to guide FEC rulemaking on Internet communications and (2) a number of approaches to creating a clear and simple exclusion for individuals’ online speech.” The first, most basic guideline is that any new rules should “only apply to candidates, political parties and other core targets of the law.” The second is that the Commission should “create a significant monetary threshold below which individuals’ online activities are wholly exempt from regulation.” [Final question to you readers: Does this mean that First Amendment rights can be qualified by money?]

 


[1] As in the case of Sen. McConnell, et al. vs. BCRA. See the case of Buckley v. Valeo and the history of testimony on McCain-Feingold for much more. Both cases were heard and decided by the Supreme Court.

Posted by Buzz Webster at 04:28 PM | Permalink | Comments (0)

July 06, 2005

FEC Testimony On ePolitics Regulation

Read the testimony of Contributing Editor Peter Bearse to the FEC in regards to the notice of proposed rule-making.

This week’s SoundOff is the testimony of Contributing Editor Peter Bearse made to the FEC in regards to the notice of proposed rule-making.
 
 
COMMENTS
in re:
FEDERAL ELECTION COMMISSION
Notice of Proposed Rule-Making (NPRM)
on
Internet Communications
Notice 2005-10 [Federal Register Vol. 70, No. 63 (April 4, 2005, pp. 16967-16979)
 
Context and Executive Summary
 
The Federal Election Commission (FEC) has little choice but to maintain very close to the status quo in the matter at issue, regulation of “Internet Communications – exemption of the Internet from CFR regulation under the Bipartisan Campaign Reform Act of 2002 (BCRA). This does not mean permitting a loophole in BCRA regulation of political party committees. These are the prime targets of CFR regulations and it clearly was the intent of Congress that they not be allowed to use “soft money” to finance “public political advertising in any form.” This interpretation establishes an essential context for regulation of Internet use by political party committees. It does not establish a basis for regulating “Internet communications” more generally. This standpoint also honors the admonition of the Commission as well as the urging of many others, that BCRA requirements be provided a “narrow” construction in the Internet arena. Thus, any redefinition of the key “public communication” feature of the BCRA should be qualified to state: “general public political advertising by political party committees that employs electronic media of any sort, including those named in the Act.” 
 
The Commission already recognizes the danger of overreaching in this arena. It should thereby avoid trying to solve the seeming problem of Internet “exclusion” identified by the Shays court via the back end of amending the “by means of” phrasing in 2 U.S.C. 431(22), rather than, directly and narrowly, via the front end of focus on the organizations implicated as in need of regulation by the BCRA, CFR and the history of Congressional debates on campaign finance reform. After all, the mutable, dynamic, innovative, informal and self-organizing qualities of the Internet would be most endangered by FEC overreaching. There is great danger to overreaching if a “back end” approach implied by the Notice is taken on this matter. There is, moreover, perhaps arguably, insufficient legal basis for the Commission to adopt such an approach because the Congress deliberately chose not to engage the question of Internet regulation via the BCRA. The issue was avoided by the time of passage of the Act, politically, and the only way that it can be engaged in any decisive way is by the Congress, politically. Perhaps arguably, but in this author’s considered opinion, the Shays Court previously overreached via its interpretation that the phrase “or any other form of general public political advertising,” implied that the Internet must be specified in the definitions of “public communication” and “political advertising.”
 
In its prior rulemaking to implement the BCRA, the Commission had properly excluded the Internet, observing that:
“the Internet is not one of the eight types of mass communication Congress listed in 2 U.S.C. 431(22)” and that “general language following a listing of specific terms…does not evidence Congressional intent to include a separate and distinct terms that is not listed, such as the Internet. 67 Fed. Reg. 49072.” [1] 
 
The precise nub of the “Internet Communications” issue was stated by the plaintiffs in the Shays proceeding during the Commission’s proceedings on “soft money” rulemaking: “appropriate disclosure requirements and funding restrictions apply to public communications by political party committees via electronic means (emphasis the author’s). The Commission should recall this as sufficient basis for a narrowly constructed approach to regulation of political speech via the Internet as recommended earlier in this commentary. The Commission is also advised to recall, in its own language, that ““Federal election activity” is “defined by the Act…and the definition includes no mention of the Internet.” The implication is unmistakable: Rather than proceed to respond to the (overreaching) decision of the Shays court in a way that threatens the “unique nature” of the Internet, the FEC would be well advised to remand the issue back to the Congress for further deliberation and decision to amend the Act. 
 
Guiding Principles
 
The comments to follow accord with the “principles” to guide “possible regulation of online political speech of individuals” set forth by the Center for Democracy and Technology and supported by about 1,000 signatories.[2] Numbers 4-7 among the Center’s eleven principles are most germane to this commentary:
 
“4. The Federal Election Commission (FEC) should adopt a presumption against the regulation of election-related speech by individuals on the Internet, and should avoid prophylactic rules aimed at hypothetical…harms… Instead, the Commission should limit regulation to those activities where there is a record of demonstrable harm.
 
5. If in the future evidence arises that individuals’ Internet activities are undermining the purpose of the federal campaign finance laws, any resulting regulation should be narrowly delineated to avoid chilling constitutionally protected speech. The Commission should eschew a legalistic and overly formal approach to the application of campaign finance laws….
 
** Background on This Principle: Speaking out during an election is a constitutional right. The government needs to be very careful when it tries to regulate political speech. …even if the FEC finds clear evidence that wealthy interests are engaging in practices that corrupt the political process, we believe it must write rules that are very narrow and clear, so that it does not also regulate or chill the online speech of small, independent political speakers.
 
6. Ordinary people should be able to broadly engage in volunteer and independent political activity without running afoul of the law or requiring consultation with counsel. The FEC should make clear that such activities are…beyond the scope of all campaign finance regulation (including disclaimers… emphasis mine).
 
7. Individuals should be able to collaborate with other such individuals to engage in a very substantial amount of independent election related speech online without being deemed a “political committee.”
 
“Public Communications” via the Internet
 
Not being in a position of simply adding the Internet to the list of “by means of” media in the BCRA definition of “public communication” (a change that would have to be made by Congressional amendment), the FEC finds itself in the position of having to include the Internet -- following the objections to its exclusion in Shays v. Federal Election Commission -- by insinuating it as falling under the purview of the final phrase in the list: “any other form of general public political advertising” [2 U.S.C. 431(22)]. This puts the Commission into a very awkward position in trying to frame appropriate responses to the DC Circuit Court decision. Only a small portion of Internet activity can be considered “advertising” and only a small portion of the latter can be considered “political advertising.” Thus, there is a real danger of seriously injuring an elephant with regulations that amount to swatting flies on the elephant’s hide.    
 
Under the circumstances; that is, without explicit Congressional authorization otherwise, the Commission should continue to retain a general exclusion of Internet communications from the definition of “public communication” – with exception only of Internet communications that provide political (“PASO”) advertising (see below) by political party or federal candidate committees. The Commission proposes to veer from this policy in cases of “advertisements where another person or entity has been paid to carry the advertisement on its website.” But for disclosures or disclaimers (see the section below on these), this would be poor policy. Why? – Because it is discriminatory, favoring established, largely centralized, conventional media with respect to decentralized, mostly disestablished Internet media. The former rely upon advertising to survive. Why not Internet media? Many Internet media have disappeared for lack of even modest advertising revenues. Many more are struggling financially. It is doubtful that the Commission’s proposed change would withstand legal challenge.
 
Another problem with the Commission’s proposed ruling is that, as introduced in col.1 of page 16969 of the “Proposed Rules,”  it is indiscriminate in its wording and, thereby, in the potential scope of its applicability. It refers to paid political advertising generally, not to that which only “refers to a clearly identified candidate for Federal office…and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office” (PASOs). The proposed rule should be worded so that it governs PASO advertising more precisely. Advertising is also “speech.” Any proposition that purports to regulate political speech on the Internet must be de-minimus – with the narrowest possible construction. Rather than arbitrarily trying to redefine “public communication” within the terms of BCRA, and emerging with what may turn out to be a practically null change or unenforceable rule, the Commission would do well to send the matter back to the Congress for their reconsideration.
 
“Generic campaign activity”
 
The Bipartisan Campaign Reform Act of 2002 (BCRA) defines “generic campaign activity” as “campaign activity that promotes a political party and does not promote a [Federal] candidate or non-federal candidate” (2 U.S.C. 431(21)). “Public communication” is considered to be such an activity. So, FEC regulations CFR Part 100, paragraph 100.25, defines generic campaign activity more specifically as “a public communication that promotes or opposes a political party and does not promote or oppose a clearly identified Federal candidate or a non-Federal candidate. Note that this
definition does not include “party-building”activities.[3] Most of these have come to be treated as “Federal election activity” subject to regulation because they are presumably “connected” to elections that feature candidates for Federal office. “Type 2” of the latter cross references “generic campaign activity” so that this category becomes a sub-category of “Federal election activity.”[4] This categorization is mistaken, as many of the Type 1 and Type 2 activities undertaken by sub-national political party committees have, at the times when they are undertaken, little or no connection to Federal elections. They are primarily localized and oriented to state and local elections. The lack of an appropriate, localized definition or effective focus upon “party building” activity in this definitional morass is, at best, problematic, and at worst, harmful to political parties as many commentators observed when campaign finance reform was being debated, pre-passage of BCRA. The definition of “generic campaign activity” is thus unsatisfactory, but the Commission would have to ask Congress to revisit BCRA to obtain any basis for redefinition that would make any substantial difference.
 
Internet Public Communication (as) Media
 
The implication pointed to by earlier paragraphs now can be put more precisely: Internet public communications should be afforded the same exemption as broadcast media. They are media. The movement towards “citizen’s journalism” and the increasing role of bloggers vis a vis mainstream media (MSM) should be sufficient to remind the Commission of the original meaning of the First Amendment – that it focuses on persons, not journalists or media organizations -- as if every person had a printing press, which
now they nearly, practically do, along with a keyboard.[5] Businesses were not recognized as “legal persons” until 1886. Thus, public communications via the Internet should qualify for the “press exemption.” If the Commission decides, however, that the exemption should be extended only to “bloggers,” then it should apply even if a blogger uses corporate-owned computers (as, for example, if a blogger is “a corporate employee who blogs on her lunch hour”).[6] Such a restriction, however, means that the Commission will have to struggle with a difficult question of definition: What is a blogger?, a question that begs an arbitrary answer in the dynamic, mutable arena of the World Wide Web.
 
Political Volunteer Activity
 
The Commission’s comments relative to “Internet Communications – Proposed 11 CFR 100.26” (Proposed Rules, p.16971) reveal a remarkable misunderstanding with regard to the nature of political volunteer activity. The “soapbox in a public square” public speaker example is quite malapropos as a lead-in to the Commission’s question of “cost,” especially since such activity should not be imaginable as a possible target of governmental regulation. The relevant cost of volunteerism is opportunity cost. Direct monetary outlays of the sort that preoccupy the Commission are the least of it. The opportunity costs of volunteers’ time, not defined or valued by the BCRA, are what really needs to be weighed; and FEC regulations must take great care to reduce these costs or at least not increase them. Unfortunately, as revealed by the writing of one of the Commissioners, CFR regulations have too often violated the latter precept.[7]  
 
It is important to note that the highly restricted definition of Internet communications subject to Commission purview under the terms of reference (ToR) of the BCRA proposed earlier exclude such communications as may serve to elicit and inform political volunteer activity without engaging in PASO advertising, including Internet communications by political party committees and candidates for the sake of recruiting and engaging volunteers. 
 
The purview of FEC regulation of Internet communications that might impact political volunteer activity must be further circumscribed in addressing the value of “in kind” contributions to facilitate volunteer activity. The focus of the BCRA and the FEC is misplaced with respect to corporate donations of computer and Internet facilities used by volunteers without qualification as to corporate size. The literature on firm size has long since revealed that public features, impacts or implications of the private corporation increase with size. There are at least substantial quantitative and qualitative differences between big business and small. The corporate aspects of FEC purview of Internet communications, therefore, should be entirely limited to the “big” business part of the corporate sector, exempting small business[8]. The latter could be defined using Small Business Administration criteria. Cost and allocation criteria (see below) would be onerous for small business.
 
Costs and Allocations
 
Requirements to account for and allocate the costs of Internet communications should be restricted to large corporations. These include not-for-profit corporations.
 
From an economist’s standpoint, the most appropriate basis for allocation would be the marginal costs of PASO Internet communications. These are more readily measurable or computable than “allocation calculations” based on questionable percentages or more or less arbitrary cost assignments.
 
An issue here not raised by the Commission’s April 4, 2005 Notice should also be addressed or hereby identified for future deliberation – that of Internet communications within large corporations that own media organizations. Those that implicate “costs,” “allocations,” “coordination,” “disclosure” or other issues of concern in the Notice should become the subjects of FEC regulatory purview to the extent that “public communications” of PASO or “generic campaign activity” types are subjects of any such intra-corporate Internet communications.
 
Disclaimers and Disclosures
 
Any “general public political advertising” on an Internet website or blog should be required to carry a disclaimer  or disclosure if there is any source (“disbursement”) involved other than the website’s or blog’s own author, or some monetary or other transactional (“expenditure”) basis upon which the advertising has been provided. The issues involved here are less those of campaign finance regulation than of intellectual honesty, journalistic integrity and accountability in the “marketplace of ideas” that the political arena is supposed to represent. 
 
Coordination
 
The “coordination” strictures governing public communications are, in this writer’s
opinion, arbitrary, difficult to enforce and contrary to the First Amendment. At least in the case of Internet communications, FEC rules should not apply but for the requirements to provide disclaimers and/or disclosures as indicated above.
 
BCRA: Needs to be Radically Revamped
 
Any amendments to FEC rules to implement the BCRA following on the NPRM
addressed herein will not obviate the need to take the fundamental issue of FEC regulation of political speech over the Internet back to where it belongs -- the U.S. Congress for resolution, politically. This should be done in context – in recognition of the fact that the Act has failed to achieve reformers’ goals and needs to be radically revamped.
 
Review and revision of the Act should be guided by two observations
 
(1)     Money will always find a way to influence politics; the only substantial antidote to money is peoples’ time; and therefore…
(2)     CFR regulation must focus on how to recognize, value and encourage (peoples’ volunteer) contributions of time.
 
An alternative approach to campaign finance reform based on time rather than money is presented in the author’s book, WE, THE PE0PLE: A Conservative Populism (Alpha Publishing, Inc., 2004).