Internet regulations could have a chilling effect

On Thursday, the Fair Political Practices Commission (FPPC) will consider how to regulate new forms of political activity conveyed on Facebook pages, in tweets, email and text messages. The FPPC Subcommittee considering this matter last week released their report that draws a troubling conclusion: that the standards governing old media campaigns should pretty much also apply to new media activity.

I testified at the FPPC hearing in March and blogged about my concerns with regulating political activity on the Internet. The message commissioners need to hear today is: the Internet is one of the best tools for civic engagement and we should not impose regulations that are certain limit opportunities for voters to get involved.

The Internet is highly democratic by nature and anytime a government seeks to regulate electronic communication, we should be concerned. We are all too aware of China’s actions to filter Google’s search results and Iran’s blocking of Facebook and Twitter prior to the last national election. These regimes fear the Internet because it empowers ordinary citizens and evens the playing field between the powerful few and the common (in fact, they fear the Internet for the very reasons the FPPC should embrace it). These despotic regimes know that they cannot control the Internet in the same way they can control traditional broadcast mediums that operate within their borders.

It is the distinction of control between traditional broadcast and the Internet that seems to be lost on the FPPC Subcommittee. I have no doubt that the Subcommittee members have nothing but the best intentions in mind. However, there are a number of unintended consequences that are sure to happen as a result of regulating the Internet the same way as traditional media. Ultimately, these unintended consequences are very likely to create a chilling effect on political speech online.

Does the Internet essentially function in the same way as traditional media or is it different? If the same, then the regulator’s job is easy: simply extend the current 35+ year-old regulations to the Internet and sit back to watch what happens next. If different, then an entire rethinking of the political process in the Internet context is required before action, if any, is taken. Unfortunately, the Subcommittee seems to have taken the former, easier approach.

The Subcommittee’s report itself is inconsistent on this point. On the one hand, it concedes in several places that the Internet is different from broadcast media (e.g. bloggers reporting the news are not the same as traditional media reporting the news), but ultimately the Subcommittee argues that the Internet should be regulated in the same way as broadcast.

For example, while the Subcommittee’s report spends ample time discussing email communications (which is conveniently similar to the familiar medium direct mail), it skirts over the more dynamic world of social media, providing thin solutions to problems such as placing (or even linking to) a full campaign disclaimer in a 140-character tweet.

What the Subcommittee fundamentally misses is that the Internet is not the few-to-many model found in broadcast, where information flows from a few, dominant sources out to the passively consuming masses. In contrast, a campaign’s “voice” on the Internet is just one among millions of active participants. Self-regulation on the Internet ensures that a candidate or campaign’s reputation (developed over time based on a track record of truthfulness) is a highly efficient, built-in safeguard.

Because the Subcommittee’s approach to the Internet is fundamentally flawed, its proposed regulations will almost certainly produce a great number of unintended negative consequences that will chill free speech online.

For example, campaigns, which are largely still warming up to the Internet, may decide not to engage in this critical channel for fear of unintentionally violating a rule. How can a candidate or campaign representative regularly tweet or post a comment on a blog and hope to never once innocently forget to include the required legal disclaimer?

As another example, if current regulations extend to the Internet, then any true citizen grassroots groups spending  $1,000 or more on their online activities would have to now to register as a political committee or face legal peril. Putting up a basic website with a single YouTube video could quickly cost even the most ad hoc citizens group well in excess of $1,000. The Subcommittee argues that this case is no different than what already exists in the offline world if a group were to incur such costs in printing/postage for mailing out flyers, for example. Valid point, except how much grassroots citizen activism do we see offline? One of the great promises of the Internet is that it will (and has already) increase citizen activism. Only, now, those would-be citizen activists must be concerned with violating the proposed regulations.

All of this confusion is certain to cause a chilling effect on grassroots democratic participation, with the real losers being the public who will be denied what once looked to be promising opportunities for new levels of civic engagement.

The Subcommittee’s report itself makes weak attempts to adjust for the continued evolution of the Internet, referring to it as a “moving target”. However, in a free society it is a dangerous business to try to anticipate what may happen and then go about creating new regulations based on those theoretical possibilities.

The Subcommittee’s report also claims that traditional media is “increasingly replaced or accompanied by email, tweets, websites and YouTube videos”, thus attempting to justify the need to act now. This is a gross overstatement of reality. A review of campaign expense reports shows a very different picture. In fact, a recent analysis of campaign spending by Google estimates campaigns spent 1.6% of their total media budget on online communication. We have time, plenty of time

The Internet is perhaps the greatest tool for enabling democracy and free speech since the printing press. So, why the hurry to regulate it? Let’s give the Internet a chance to mature and stabilize before taking premature action that we will all likely regret.

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