Groups File Comments with FEC about Campaign Activity on the Internet

(January 13, 2000) EPIC, CDT, and other groups filed comments with the Federal Election Commission in response to its Notice of Inquiry regarding campaign activity on the Internet. They urged the FEC not to regulate freedom speech on the Internet.

Related Pages
Tech Law Journal Summary of FEC Proceedings Regarding Campaign Activity and the Internet.
FEC Notice of Inquiry, 11/1/99.

The Electronic Privacy Information Center (EPIC) submitted comments which urged "the Commission to refrain from regulating political speech online and to sustain the Internet's capacity as a vehicle for democracy and debate."

The Federal Election Commission (FEC) issued a Notice of Inquiry in November in which it requested public comment on how the Federal Election Campaign Act (FECA) should be applied to campaign activity and political speech on the Internet.

"Regulating speech on the Internet could deter the individual and grassroots efforts that would possibly gain visibility only on the Web. Just as individuals can hang banners on their front yards or post bumper stickers on their car, they should be able to express their viewpoints on the Web free of reporting obligations or abstract cost assessments", EPIC added. "The Internet provides a forum for the realization of such a principle, and it would be unfortunate if federal regulations were to negligently undermine it."

List of Entities Jointly Filing
Comments with the CDT

Center for Democracy and Tech.
People For the American Way
American Civil Liberties Union
Coalitions for America
Free Congress Foundation
Democracy Online Project
The American Policy Center
Minnesota E-Democracy
California Voter Foundation
Wisc. State Sovereignty Coal.
Libertarian Party of Indiana Inc.
Tennessee Eagle Forum
Sutherland Institute
mindshare Internet Campaigns
Presage, Inc.
Tavel & Stewart

The Center for Democracy and Technology (CDT) submitted comments jointly with a number of other groups. It wrote: "The Internet is fostering an explosion of democratic activity outside the control of the political parties, the traditional media or the moneyed special interests. On the Internet can be found precisely the sort of robust, individual political advocacy that the campaign finance law was intended to promote."

The Alliance for Justice, a national association of civil rights, environmental, feminist, and other interest groups, filed similar comments. "Only regulation that addresses the compelling state interest in protecting the electoral process from the corrupting influence of massive private wealth can be constitutionally justified. All else is protected speech."

Hyperlinks.  One common subject of comments was whether hyperlinks to candidates' web sites should be treated as contributions. Most comments argued that they should not be. EPIC wrote that "As the cost of providing a link is de minimus, individuals who do so should be exempt from reporting obligations."

Likewise, CDT argued that "a hyperlink should not be considered a contribution or expenditure. The impact on the Web of regulating hyper links -- particularly where the regulation causes uncertain liability risks for the site -- will result in a Web that is harder to navigate and political information that is harder to find."

Anonymous Speech.  Another subject of the comments was whether individuals should be allowed to speak anonymously. EPIC wrote that "Requiring disclaimer statements for speech on the Web impedes political speech and is constitutionally impermissible.

CDT added that "this rule would eliminate the use of screen names or pseudonyms and leave little room for anonymous political speech online."

"We believe that both the Constitution and the goals of FECA demand that individuals and small groups of individuals be able to engage in anonymous political speech online," CDT concluded.

However, some filings did advocate some regulation in this area. The California Voter Foundation wrote that "there is every reason to expect, given the nature of political campaigning, that it is just a matter of time before campaigns unleash anonymous email and/or web attacks on opponents. Such attacks are likely to contain false or misleading information. Without a committee name and a disclosure ID requirement, it will be impossible for voters or the victims of such attacks to hold the responsible party accountable."

Discussion Groups.  Another popular subject in the comments was whether sponsors of discussion groups and chat rooms have any responsibilities under the FECA for what goes on in their sites. CDT argued that "A service provider is not liable for the content created by their subscribers or users," citing section 230 of the Telecom Act of 1996 and the case Zeran v. AOL.

Press Exemption.  Yet another frequent subject of comments was the exemption in the FECA for news media. To date the FEC has only extended this exemption to one news operation on the Internet (Bloomberg).

The CDT wrote that "The notion of the press as a closed, limited category of speakers has been rendered obsolete by the Internet. However, rather than welcoming the new entries to the press corps, the Commission's rulings have discriminated against them by considering ownership of a traditional means of distributing news as a dispositive factor in determining eligibility under the media exemption."

"Justice Thomas has said that "when the framers thought of the press, they did not envision the large, corporate newspaper and television establishments of our modern world;" instead they believed in a system of "many independent publishers." Such is the world of the Internet, where anyone can be a publisher."

The CDT concluded that "The goal of the press exemption should be to ensure that FECA does not interfere with the unfettered right of the press broadly defined to cover political campaigns. In no circumstances should the Internet press be defined by an individual's, organization's, or corporation's ability to be a publisher in other media. To do so would unfairly discriminate in favor of existing media, muzzle the diverse publishers on the Internet, and thwart the regeneration of a robust press corps."

As a part of this inquiry, the FEC is also examining whether Internet publications may qualify as "press" within the meaning of the Federal Election Campaign Act, and hence, are exempt. Tech Law Journal is affected by this proceeding. Readers may wish to take this into consideration in assessing the objectivity of this article.