[NV Greens] Fwd: [usgp-dx] McCain-Feingold threatens political blogging (Doug Ireland; Declan McCullagh)

Sun Mar 6 00:37:50 PST 2005

>
>A POLITICAL CRACKDOWN ON BLOGGING IS
>COMING--THANKS TO McCAIN-FEINGOLD
>
>DIRELAND: Doug Ireland's web log
>March 03, 2005
>http://direland.typepad.com/direland/2005/03/a_political_cra.html
>
>
>Declan McCullagh is a superb reporter about
>what's happening to the 'net. He's the chief
>political correspondent for CNET's News.com, and
>his Politech  (for Politics and Technology)
>website has been for a decade essential reading
>for anyone seriously interested in internet
>freedom and the intersection between politics,
>culture, law and the 'net. My e-mail inbox has
>daily, often multiple, updates from Politech that
>are invaluable. I don't agree with a lot of
>Declan's personal politics on many issues--he's
>pretty much an anti-government libertarian, and
>we once had a tough exchange about his opposition
>to foreign aid--but as a reporter he's
>indefatigable and perspicacious.
>
>Declan has a piece out today for CNET that is a
>must-read for both bloggers and political
>activists
><http://news.com.com/2008-1028_3-5597079.html>
>[appended below]: an interview with Bradley
>Smith, one of six members of the Federal Election
>Commission. It's a real eye-opener: Smith "says
>that the freewheeling days of political blogging
>and online punditry are over. In just a few
>months, he warns, bloggers and news organizations
>could risk the wrath of the federal government if
>they improperly link to a campaign's Web site.
>Even forwarding a political candidate's press
>release to a mailing list, depending on the
>details, could be punished by fines."
>
>This crackdown--which will take place under the
>restrictive provisions of the dreadful
>McCain-Feingold campaign finance law that put a
>lot more hard money into the political process
>and made the presidential election of '04 the
>most expensive in history--would change the
>nature of 'net politics as it is now practiced.
>Ultimately, of course, the restrictions Smith
>talks about would undoubtedly be challenged and
>taken all the way to the Supreme Court (they've
>never gotten above a 1992 U.S. District Court up
>to now). Interestingly enough, its the Democrats
>on the FEC who've blocked an appeal to that '92
>decision which would seek continuation of the
>internet exception to McCain-Feingold. Make sure
>you read this scoop by Declan by clicking here
><http://news.com.com/2008-1028_3-5597079.html>
>[see below].
>
>A P.S. After reading the above, an old
>journalistic pal of mine who's written
>extensively about the Internet and now works for
>one of the major U.S. newsweeklies (which is why
>I can't use his name) dropped me some intelligent
>musings:
>
>"This is a giant, giant issue, and thank you for
>flagging it. It touches on so many big questions
>that Congress is ill-suited to answer: can you
>regulate the Internet for political content the
>way that you regulate, say, radio and television?
>And should you? To what degree are those
>decisions determined by technology versus pure
>politics? You probably know as well as anyone
>else the strange dialectic of the early days of
>the FCC. On the one hand, the agency was
>particularly a hotbed for the left wing of the
>FDR administration; on the other hand, it had the
>powers it did partly out of a desire by FDR to
>quell the right-wing critics who'd sprouted up on
>radio. And thus we have the clumsy communications
>beast that we live with; Information wants to be
>free, the Netheads used to say, but the reality
>is never that neat.
>
>"Even I can't make my mind up entirely; as much
>as I loathe the idea of using badly written,
>cynical campaign finance law to muzzle free
>expression, there are countervailing pressures.
>The notion that the Internet should be as free as
>possible from regulation (which came from the
>right, let's not forget) has some nasty side
>effects, notably the e-commerce exemption from
>sales tax, which is a noxious bit of theft,
>indefensible by any notion of progressive
>taxation. If it is ever to be defeated, it will
>require the intellectual breakdown of the idea of
>the Internet as a somehow fragile, protected
>communication medium.
>
>"Basically, I think the only long-term solution
>is a total overhaul of the FCC. I'm not holding
>my breath."
>
>
>*  *  *  *  *
>
>
>The coming crackdown on blogging
>
>By Declan McCullagh
>Staff Writer, CNET News.com
>March 3, 2005
>http://news.com.com/2008-1028_3-5597079.html
>
>
>Bradley Smith says that the freewheeling days of
>political blogging and online punditry are over.
>In just a few months, he warns, bloggers and news
>organizations could risk the wrath of the federal
>government if they improperly link to a
>campaign's Web site. Even forwarding a political
>candidate's press release to a mailing list,
>depending on the details, could be punished by
>fines.
>
>Smith should know. He's one of the six
>commissioners at the Federal Election Commission,
>which is beginning the perilous process of
>extending a controversial 2002 campaign finance
>law to the Internet.
>
>In 2002, the FEC exempted the Internet by a 4-2
>vote, but U.S. District Judge Colleen
>Kollar-Kotelly last fall overturned that
>decision. "The commission's exclusion of Internet
>communications from the coordinated
>communications regulation severely undermines"
>the campaign finance law's purposes,
>Kollar-Kotelly wrote.
>
>Smith and the other two Republican commissioners
>wanted to appeal the Internet-related sections.
>But because they couldn't get the three Democrats
>to go along with them, what Smith describes as a
>"bizarre" regulatory process now is under way.
>
>CNET News.com spoke with Smith about the
>Bipartisan Campaign Reform Act of 2002, better
>known as the McCain-Feingold law, and its
>forthcoming extrusion onto the Internet.
>
>Q: What rules will apply to the Internet that did
>not before?
>A: The commission has generally been hands-off on
>the Internet. We've said, "If you advertise on
>the Internet, that's an expenditure of
>money--much like if you were advertising on
>television or the newspaper."
>
>The real question is: Would a link to a
>candidate's page be a problem? If someone sets up
>a home page and links to their favorite
>politician, is that a contribution? This is a big
>deal, if someone has already contributed the
>legal maximum, or if they're at the disclosure
>threshold and additional expenditures have to be
>disclosed under federal law.
>
>Certainly a lot of bloggers are very much out
>front. Do we give bloggers the press exemption?
>If we don't give bloggers the press exemption, we
>have the question of, do we extend this to
>online-only journals like CNET?
>
>How can the government place a value on a blog
>that praises some politician?
>How do we measure that? Design fees, that sort of
>thing? The FEC did an advisory opinion in the
>late 1990s (in the Leo Smith case) that I don't
>think we'd hold to today, saying that if you
>owned a computer, you'd have to calculate what
>percentage of the computer cost and electricity
>went to political advocacy.
>
>It seems absurd, but that's what the commission
>did. And that's the direction Judge
>Kollar-Kotelly would have us move in. Line
>drawing is going to be an inherently very
>difficult task. And then we'll be pushed to go
>further. Why can this person do it, but not that
>person?
>
>How about a hyperlink? Is it worth a penny, or a
>dollar, to a campaign?
>I don't know. But I'll tell you this. One thing
>the commission has argued over, debated, wrestled
>with, is how to value assistance to a campaign.
>
>Corporations aren't allowed to donate to
>campaigns. Suppose a corporation devotes 20
>minutes of a secretary's time and $30 in postage
>to sending out letters for an executive. As a
>result, the campaign raises $35,000. Do we value
>the violation on the amount of corporate
>resources actually spent, maybe $40, or the
>$35,000 actually raised? The commission has
>usually taken the view that we value it by the
>amount raised. It's still going to be difficult
>to value the link, but the value of the link will
>go up very quickly.
>
>Then what's the real impact of the judge's
>decision?
>The judge's decision is in no way limited to ads.
>She says that any coordinated activity over the
>Internet would need to be regulated, as a
>minimum. The problem with coordinated activity
>over the Internet is that it will strike, as a
>minimum, Internet reporting services.
>
>They're exempt from regulation only because of
>the press exemption. But people have been arguing
>that the Internet doesn't fit under the press
>exemption. It becomes a really complex issue that
>would strike deep into the heart of the Internet
>and the bloggers who are writing out there today.
>(Editor's note: federal law limits the press
>exemption to a "broadcasting station, newspaper,
>magazine or other periodical publication." )
>
>How do you see this playing out?
>There's sensitivity in the commission on this.
>But remember the commission's decision to exempt
>the Internet only passed by a 4-2 vote.
>
>This time, we couldn't muster enough votes to
>appeal the judge's decision. We appealed parts of
>her decision, but there were only three votes to
>appeal the Internet part (and we needed four).
>There seem to be at least three commissioners who
>like this.
>
>Then this is a partisan issue?
>Yes, it is at this time. But I always point out
>that partisan splits tend to reflect ideology
>rather than party. I don't think the Democratic
>commissioners are sitting around saying that the
>Internet is working to the advantage of the
>Republicans.
>
>One of the reasons it's a good time to (fix this)
>now is you don't know who's benefiting. Both the
>Democrats and Republicans used the Internet very
>effectively in the last campaign.
>
>What would you like to see happen?
>I'd like someone to say that unpaid activity over
>the Internet is not an expenditure or
>contribution, or at least activity done by
>regular Internet journals, to cover sites like
>CNET, Slate and Salon. Otherwise, it's very
>likely that the Internet is going to be
>regulated, and the FEC and Congress will be
>inundated with e-mails saying, "How dare you do
>this!"
>
>What happens next?
>It's going to be a battle, and if nobody in
>Congress is willing to stand up and say, "Keep
>your hands off of this, and we'll change the
>statute to make it clear," then I think
>grassroots Internet activity is in danger. The
>impact would affect e-mail lists, especially if
>there's any sense that they're done in
>coordination with the campaign. If I forward
>something from the campaign to my personal list
>of several hundred people, which is a great
>grassroots activity, that's what we're talking
>about having to look at.
>
>Senators McCain and Feingold have argued that we
>have to regulate the Internet, that we have to
>regulate e-mail. They sued us in court over this
>and they won.
>
>If Congress doesn't change the law, what kind of
>activities will the FEC have to target?
>We're talking about any decision by an individual
>to put a link (to a political candidate) on their
>home page, set up a blog, send out mass e-mails,
>any kind of activity that can be done on the
>Internet.
>
>Again, blogging could also get us into issues
>about online journals and non-online journals.
>Why should CNET get an exemption but not an
>informal blog? Why should Salon or Slate get an
>exemption? Should Nytimes.com and
>Opinionjournal.com get an exemption but not
>online sites, just because the newspapers have a
>print edition as well?
>
>Why wouldn't the news exemption cover bloggers
>and online media?
>Because the statute refers to periodicals or
>broadcast, and it's not clear the Internet is
>either of those. Second, because there's no
>standard for being a blogger, anyone can claim to
>be one, and we're back to the deregulated
>Internet that the judge objected to. Also I think
>some of my colleagues on the commission would be
>uncomfortable with that kind of blanket
>exemption.
>
>So if you're using text that the campaign sends
>you, and you're reproducing it on your blog or
>forwarding it to a mailing list, you could be in
>trouble?
>Yes. In fact, the regulations are very specific
>that reproducing a campaign's material is a
>reproduction for purpose of triggering the law.
>That'll count as an expenditure that counts
>against campaign finance law.
>
>This is an incredible thicket. If someone else
>doesn't take action, for instance in Congress,
>we're running a real possibility of serious
>Internet regulation. It's going to be bizarre.
>
>
>
>
>
>
>
>
>__________________________________
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-- 
Paul Etxeberri

"Forests precede civilizations and deserts follow"   ---Chateaubriand