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New Rules for Online Politics Could Be On the Horizon

BY Nick Judd | Friday, September 23 2011

As Facebook, Google and Twitter look to get deeper into the political advertising business, the Federal Election Commission may alter the way it regulates how campaigns use those companies' advertising services.

The FEC was set Thursday to consider what they call a "draft advanced notice of proposed rulemaking" on Internet ads, a document that if approved would open the doors to public comment about whether the FEC should rewrite some of the FEC's rules for political ads on the Internet. The FEC tabled actually putting the notice out for comment at least until its next meeting, which will be Oct. 6.

The impetus for revisiting the rules, according to the draft document, comes from recent requests by Google and Facebook for advice from the FEC. First, Google asked the FEC whether it could sell short text ads without a disclaimer about who had paid for the ad, saying that there wasn't enough space to provide it and anyway the users would see disclaimers on whatever website the ad was linking to. The FEC gave Google its blessing. Next, earlier this summer, Facebook asked for similar dispensation for its own text ads — and the FEC took a pass, offering no opinion one way or the other. At the hearing on Facebook's request for an opinion, though, commissioners discussed a public comment asking them to go back to the rules and rewrite them for everyone rather than taking each item on a case-by-case basis.

A Twitter spokesman declined to comment. No word yet from Facebook.

Part of the reasoning for a return to the rules, according to the draft document, is the advent of new technology. Twitter's political ads, for instance, display a text box when users hover their cursors over a particular area; in that box is a more formal disclosure of who paid for the ad in question. The FEC hasn't given a definite yes or no as to whether these new technologies are kosher, which leaves people trying to innovate in the multi-million-dollar field of political advertising in something of a gray area. New rules would change that.

"Given the development and proliferation of the Internet as a mode of political communication, and the expectation that continued technological advances will further enhance the quantity of information available to voters online and through other technological means," reads the draft document, included in a memo to the commissioners from their general counsel, Anthony Herman, "the Commission welcomes comments on whether and how it should amend its disclaimer requirements for public communications on the Internet to provide flexibility consistent with their purpose."

Will they change the game in time to matter for 2012? That's unclear. The last time the FEC took up a formal rulemaking on Internet communications, way back in the pre-Obama long-long-ago, the process began in November 2004 — and the final rules weren't issued until April 2006. An FEC spokeswoman, Judith Ingram, tells me there are no formal time constraints for rulemaking.

Also, the document the FEC made public Thursday is more of a throat-clearing prior to an announcement than an actual announcement. What it will do, if it's approved, is allow for public comment on whether or not the commissioners should take up the formal rulemaking process, not start the process itself.

The FEC's forays into making rules about politics on the Internet can be harrowing. In the last Internet rulemaking, the FEC briefly considered regulating blogs as if they were promotional services for candidates and not media outlets. The rules that eventually came down back then, in 2006, did no such thing — regulating paid ads but not bloggers — but that 17-month process included some tense moments for the Internet's political class.

The draft doc is a decent primer on the whole issue and most of it isn't even in legalese. Here it is, for your reading pleasure:

mtgdoc_1158

(h/t Rick Hasen)

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