freespeech

January 7, 2000

Rosemary C. Smith
Acting Assistant General Counsel
Federal Election Commission
999 E Street, NW
Washington, DC 20463


Re: Notice of Inquiry, 1999-24

The Center for Democracy and Technology has signed onto a set of comments supported by a range of public interest organizations, urging the Commission not to attempt comprehensive rulemaking at this point regarding application of the federal campaign finance law to the Internet. The description of the nature of the Internet in those joint comments serves as the basis for our more specific comments here. We also refer the Commission to our report, "Square Pegs and Round Holes: Applying Campaign Finance Law to the Internet � Risks to Free Expression and Democratic Values," (October 1999).

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. CDT will be creating an online guide to this diversity � a tutorial and virtual tour that will be available at our Web site to show Members and staff of the Commission, Members of Congress, experts, and the public how the Internet is being used and why it should be left unregulated.

In this set of comments, we address some of the specific issues raised in the NOI, both to illustrate our point about the difficulty of applying to the Internet the rules adopted for broadcast media and the traditional interpretations of the campaign finance law and to indicate how we believe the Commission should rule if it undertakes, despite our opposition, in the near term, a comprehensive rulemaking.


Do speakers need to identify themselves? (FEC Question 4.d)

Under the Federal Election Campaign Act (FECA), statements to the general public advocating the defeat or election of a federal candidate must identify the speaker (or the one who paid for the ad). The Commission has suggested that this rule apply to all Web sites and statements on the Internet. [ 1 ] Generally applied, this rule would eliminate the use of screen names or pseudonyms and leave little room for anonymous political speech online.

As we will explain, anonymous speech, particularly anonymous political speech, has a longstanding, important and protected position under our Constitution. However, without needing to decide whether the disclaimer requirements in FECA are facially constitutional given recent Supreme Court decisions, the Commission should recognize that the unique characteristics of the Internet take most communications by individuals online outside of the scope of the disclaimer requirements, for Internet statements are not statements "to the public" in the way that the radio and TV advertisements covered by traditional interpretations of the Act are.

Postings on the Internet are, of course, available to the public in some sense, but we do not believe they are statements to the public in the sense contemplated by the FECA. In many ways, they are closer to a handwritten lawn sign. In other ways, they are like statements to friends or strangers in a bar. In either case, the creator of a web page does not buy an audience the way a producer of an advertisement buys a predictable radio or TV audience. Web pages are not broadcast to the public en masse. They must be sought out, one viewer at a time, and the Web page creator has little ability to force a viewer to encounter his Web site.


How do you value a Web site? (FEC Question 4.a)

The majority of individuals and entities using the Internet to engage in election related speech are using computers, hardware, software and services purchased for other purposes. Like the home phone or personal automobile used by an individual for a campaign-related activity or to spread an election-related message, Internet access and the sunk costs associated with it are generally not incurred directly to support campaign related speech. While one could conceive of an approach that would require individuals to calculate the cost of developing the message and the cost of monthly services proportionately shared among the pages a person generates, this would appear to force an accounting not required in other areas. The Commission does not expect individuals to allocate part of their mortgage and property taxes toward the cost of posting campaign signs in their front yard. While an individual may spend time developing and posting a political message, this should be viewed as something akin to volunteer activity and not counted toward the expenditure and contribution limits.

Can you speak without joining a campaign? (FEC Question 4.a)

The Internet has helped some individuals find their voice and strengthened the voice of others. In many instances, the individuals using the Internet to spread election-related messages and organize are engaging in what the Commission has found to be "volunteer" activities. [ 5 ] If these individuals developed Web sites or sent emails as campaign "volunteers," their efforts would be exempt from the law. However, many individuals expressing their political views have not "volunteered" in the traditional sense of taking directions from a campaign coordinator. Still, their activities should also fall under the volunteer exemption.

The Internet model is one of diverse, self-motivated speakers. Participants in the political process on the Internet do not have to be passive listeners and foot soldiers in the traditional sense. They can be innovative speakers without ever coordinating their message with the campaign.

Surely, FECA was not intended to shelter the passive while regulating the self-starter. The new form of "volunteer" found on the Internet is likely to be a speaker. While they may distribute or re-post campaign related material, it is unlikely to be straight from the campaign's press box. Rather, individuals are likely to be voluntarily providing at their Web sites a clearing-house of materials, only some of it approved material from the official campaign. Rather than handing out pamphlets written by the campaign, these new volunteers participate in discussion groups where they represent (or misrepresent) and argue their candidate's positions, and distribute their own information via Web sites and email. The campaign does not exercise control over the messages put out by these new volunteers. They do not control how they spend their time and resources. In some instances, these messages may represent the candidates position in a fashion the candidate would find objectionable. Yet surely, this activity by individuals is precisely the sort of participatory democracy that FECA intended to make room for.

Despite the independence of their messages and services, the message dissemination and outreach activities of these individuals resemble the activities of "volunteers" That the FEC has recently ruled are exempt from the Act. Using an objective test, the independent dissemination of messages supporting a candidate through Web sites, emails, and other vehicles, should fall under the volunteer exemption. And as stated above, on the Internet, where speech is so cheap, there should be a presumption that a personal Web site is not regulated. One option would be to consider "home pages" and personal Web sites supporting candidates to be volunteer activities, not "independent expenditures, regardless of whether the individual is a volunteer in the traditional interpretation.


Are hyperlinks the backbone of the Web or political contributions? (FEC Question 4.b)

Few Commission rulings were more troubling to individuals who care about the Internet than the ruling that links could be something of value and therefore might be considered contributions and expenditures under the law and regulated. It seems that this issue was partially resolved in the Bush campaign advisory opinion, A.O 1999-17, where the Commission found that links provided from individuals' Web sites to a campaign's Web site would not be reportable in-kind contributions. However, the A.O. maintains that providing free or reduced cost links from a corporate Web site, if the site normally charges for such links, would be a prohibited contribution. This leaves many valuable avenues for navigating the World Wide Web in limbo.

Hyperlinks are the "Web" in the World Wide Web. Hyperlinks are central to the design and operation of the Internet. The creators of the Internet wanted hyperlinks to proliferate resulting in every site being linked to every other site -- creating the World Wide Web. The Internet provides neither a built-in map to assist individuals in finding what they want, nor a method for others to push information to them. Instead, individuals generally find Web sites through: word of mouth -- hyperlinks provided at Web sites they visit or sent to them by individuals who they know and trust; asking for directions -- at portals and search engines individuals will request a set of links that refer to a certain subject; or, advertisements -- banner advertisements provide a gateway to Web sites when individuals click on them. In each model, hyperlinks are the method of circulation on the Web. As the Supreme Court noted in Reno v. ACLU, [ 6 ] the Internet is premised on the use of links, making the Internet "comparable . . . to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services." [ 7 ]

In general the majority of hyperlinks posted on the Web are free. Entities that link to a site may have the intent to support, parody, refute, mock, or report. Sites link to other sites that have frequently changing content. Therefore, any regulation that impose liability on a Web site for the content of a site they link to will discourage linking all across the Web. Hyperlinks are unique to the Internet. They can serve to inform viewers of the existence of information and to provide free and instantaneous access to it.

For these reasons we believe that hyperlinks should not be considered contributions or expenditures.

Recent Advisory opinions [ 8 ] permitting web sites to link to candidate Web pages without considering the link to be a "contribution" [ 9 ] move in the right direction. Under the Bush opinion, in determining whether providing a link to a campaign constituted a contribution, the question is whether "the owner of the web page providing the link would normally charge for the providing of such a link." [ 10 ] Thus, only if a Web site normally charged for the provision of similar links�but in a particular instance chose to charge less than the normal amount (or nothing at all)�would the provision of a link be treated as a contribution or independent expenditure. While the Bush opinion moves in the right direction, it should be extended.

While there may be a narrow set of circumstances where the Commission feels the goals of FECA demand that a hyperlink be subject to regulation we urge great caution. As a threshold, unless the Commission finds that: (1) similar links are routinely charged for under the circumstances; and, (2) the particular links at issue are provided in an unequal, partisan manner; and, (3) the text of the link itself, or the content surrounding it, contains express advocacy the Commission should not contemplate regulating a hyperlink. Even in such instances we urge extreme caution, for characterizing a link as a "contribution" or "expenditure" would undertake a restriction of the Internet that undermines its essential operation.
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The criterion of whether links are charged for, standing alone, is not sufficient to resolve the question, because in some cases, a Web site may charge for some links but not for others. Portals are a perfect example. At a portal such as Yahoo! or Lycos, links are provided that are both paid and unpaid. A similar mix of paid and unpaid links can be found at traditional news media businesses that have established Internet news sites such as the New York Times and the Washington Post.

Similarly, where a corporate Web site that customarily charges for links wants to provide free links to all candidates in a given race, it should not be considered a contribution. Similar to the result in Advisory Opinion 1999-7, approving Internet links to candidate web sites from the Minnesota Secretary of State�s web site, such links should not be considered "something of value" because all candidates' sites would be included, making the service akin to a nonpartisan voter education effort. While the EZone opinion moves in this direction, it stops short of this conclusion. The provision of free links in a non-partisan manner -- even by a corporation that usually charges for links and is not routinely in the business of dispersing educational material -- should be encouraged not thwarted.

For the reasons above, 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. If the free means of spreading the word about a site containing election-related information disappears, the entrenched interests will be allowed to dominate this medium too. Without hyperlinks, election related Web sites would need to purchase banner ads or other forms of advertisements to ensure the widest reach of their message. Building in economic barriers to message dissemination is antithetical to the campaign finance regulation.


Can you repost materials without running afoul of the law? (FEC Question 4.a)

The question of how to address the republication on the Internet of campaign materials prepared by a candidate or campaign is closely tied to the issue of linking discussed above. The reposting of materials on the Internet, like providing hyperlinks, is, in most instances, free of cost. While reprinting of campaign is typically considered an in-kind contribution in the world of print and other expensive media, the marginal cost to an individual of reposting material online suggests a different approach is needed for the Internet.

Unlike republication in the off -line world, which requires a substantial commitment of resources and directly assists the candidate in disseminating his message, the reposting of information on the Internet is virtually free and it may or may not further the candidates efforts. Like hyperlinks, reposting may just as easily be part of a parody or criticism than a signal of support for the candidate. Therefore, while reposting spreads the candidate�s information around the Web, it does not necessarily benefit the candidate. Even where reposting appears beneficial to the candidate, it is uncertain how beneficial.

Before regulating online reposting, the Commission should answer some important questions: How many "copies" are made when an item is reposted? If the original material is available to everyone on the Web via search engines, what is the marginal benefit of an individual with a low trafficked Web site reposting it? If reposting is free, isn't any increased availability of the candidate's message a product of its value, rather than the financial means of its adherents?


Online, who's a publisher? (FEC Question 7.a)

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. [ 11 ]

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 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. [ 12 ] 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.

The Commission's application of the "news story exemption" to the Internet should embrace the diversity of new publishers -- those who run list serves, Web sites, and other forums that report on elections. The pamphleteers, reporters, talk show hosts, and editorial writers on the Internet are broadening our political discourse, as the Congress intended. As the Supreme Court said, "the liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets�The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." The Constitution and common sense require that the Commission's regulations do not impede the press in whatever new and diverse forms the Internet allows it to take.


Who is Responsible for the Messages in Online Discussions? (FEC Question 7.c)

The Commission should take note of section 23(c)(1) of the Communications Act, 47 U.S.C. 230(c)(1), in which Congress limited the liability of those who provide opportunities for others to speak on the Internet. A service provider is not liable for the content created by their subscribers or users. Zeran v. AOL, 129 F.2d 327 (4th Cir. 1997).

The Commission's rulings in the DNet Advisory Opinion (1999-25) and the EZone Advisory Opinion are in line with this approach and should be extended. In the DNet opinion, the Commission found that, because DNet would serve merely as a conduit for the communications of others, that any statements made by "persons supporting the candidates c[ould] not be imputed to DNet. [ 13 ] Similarly, in the EZone opinion the Commission found that allowing site visitors to submit questions to political candidates, even though EZone might restrict questions that were redundant, off topic, or asked a candidate to state an opinion about another candidate, would not cause the statements made by individuals to be imputed to EZone. [ 14 ]

Service providers and conduits should not be held responsible or liable for statements made by subscribers. Furthermore, service providers and conduits should not be under any obligation to monitor the activities of their subscribers.


Conclusion

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. Within the context of FECA, the Commission should make it clear that this medium needs to be treated differently, and should make it clear that individual political advocacy on the Internet does not fall within the coverage of the Act.

We appreciate the opportunity to comment on the important questions raised by the Commission.

Sincerely,


Deirdre K. Mulligan
Staff Counsel



Endnotes. Links will open in a new browser window.

1. Federal Election Commission, Advisory Opinion 1998-22, November 20, 1998.

2. McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995.

3. In fact, the continued development of psedononymous and anonymous speaking abilities for children was spurred in part by the recently passed Children's Online Protection Act and reflects growing concerns about the loss of individual privacy.

4. Heinicke, Malcolm, "Political Reformers Guide to McIntyre and Source Disclosure Laws for Political Advertising, " Stanford Law and Policy Review, Summer 1997.

5. Advisory Opinion 1999-17, finding that where a volunteer for a campaign chooses to prepare a Web site supporting the campaign using his or her personal property at home it would be considered a volunteer activity and not a campaign contribution; and, that the redistribution or other use of campaign materials by individuals using their home computers for email solicitations or to create pro-candidate Web sites would be considered a volunteer activity and not a contribution.

6. 521 U.S. 844 (1997).

7. Id. at 853.

8. Advisory Opinion 1999-17; Advisory Opinion 1999-24; and, Advisory Opinion 1999-25.

9. Because of these opinions, an interested voter may click on to a site such as DNet and immediately begin accessing candidate information with the click of his or her mouse. Without worrying about knowing a candidate�s Uniform Resource Locator ("URL") (or even knowing what a URL is), a voter may instantly compare candidate backgrounds and issue positions.

10. Advisory Opinion 1999-17.

11. Advisory Opinion 1996-2, April 25, 1996.

12. See, Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 668 (1990) (citing the legislative history of FECA, the exemption "assures the unfettered right of the �media to cover and comment on political campaigns").

13. Advisory Opinion 1999-25, p5 and fn. 6.

14. Advisory Opinion 1999-24, November 15, 1999.