Last week I testified at a hearing of the Fair Political
Practices Commission where I outlined my concerns with the ever-growing
prospect of new regulations on political communications. Over the past several
years we have all witnessed the Internet evolve significantly with the rise of
influential bloggers, the birth of YouTube and the invention of online social
networks. The growth of the Internet has changed nearly every aspect of
peoples’ lives and with that has come the inevitable questions about whether
the government should regulate political activity on the Internet.
The Internet by its very nature is highly democratic,
especially compared to traditional broadcast mediums, and I am deeply concerned
that regulatory actions taken today could have a chilling effect on a vast,
untapped opportunity for civic engagement that the Internet provides. Unlike
advertising on TV and radio which requires a high level of funding available
only to a select few, there are many producers of online content. While it is
possible for political campaigns to "buy" a certain level of presence on the
Internet, anyone with nothing more than a creative message can have an impact
on millions of others in that same medium.
While we’ve seen substantial growth in the Internet, we are
really just beginning to understand how this medium will shape campaigns and
the political process. And, in reality, Internet spending represents only a
small slice of the campaign budget (though this is already growing). The
Internet is so vast and dynamic that online communications do not fit neatly
into one category. Requiring the disclosure of the source and funding of
Internet political activities is not a "one size fits all solution."
For example, on Twitter messages are limited to 140
characters – there is simply not room for a lengthy disclaimer that a message
is paid for by a campaign or put out by campaign staffers. Likewise, search ads
placed with Google’s very commonly used AdWords system also have limits on the
number of characters in an ad; there is not nearly enough space for a typical
disclaimer.
Blogs present a special set of challenges. Is a major
blogger contributing in-kind when writing a favorable blog post about a
campaign? What if that blogger also accepts a paid ad from the same campaign?
What part is advertising and what part is free political speech?
Given that Internet resources are relatively inexpensive and
widely available to all, it is difficult to determine whether a communication
was actually paid for by a campaign or the work of a volunteer, especially when
an individual could plausibly fill both roles. Take for example a real case
from the 2008 presidential election. Phil de Vellis, who was working with the
Obama campaign’s Internet consulting firm gained national attention when he
created a YouTube video which mashed up Apple’s iconic "1984" super
bowl spot with footage from Senator Hillary Clinton’s campaign website. The
video appeared to be professionally produced and included a direct plug for
Barack Obama. de Vellis claimed that he had acted alone and on his own time
with his own equipment to create the ad…entirely plausible, but highly questionable
at the same time. This begs the question: was de Vellis’ action a campaign
expenditure or free political speech?
Clearly, there is not one simple answer to address these
issues. The Internet is still dramatically maturing and it is way too early to
take regulatory or legislative action without further study or consideration. There
will come a time when the evolution of the Internet will slow to a more
manageable pace, but it would be unwise and impractical to get ahead of
ourselves now. In the meantime, the Internet has proven to be powerfully
effective at self-policing underhanded and dishonest behavior. We must allow the
Internet to continue to grow into a great democratizing force in our society
and not regulate one of the best tools for civic engagement.