Thursday, November 4, 2010

Will The FEC Regulate Social Media For the 2012 Election Cycle?

The Federal Election Commission (FEC) may need to regulate the use of social media for the 2012 election cycle. As I have repeated time and time again, I am not in favor of the government regulating every nook and cranny of our existance. However, this is not 1999 and we are no longer in the Internet Age. We are in the Social Media Age.

The Internet Age was about emailing and surfing the web. The Social Media Age is about conversation, engagement, and user generated content. Think Facebook, MySpace, Twitter,YouTube, and Foursquare for starters.

Under the FEC's October 2006 Special Notices on Political Ads and Soliticitations, public communications are:
•Broadcast, cable or satellite transmission;
•Outdoor advertising facility (e.g., billboard);
•Mass mailing (defined as more than 500 pieces of mail matter of an identical or substantially similar nature within any 30-day period);
•Telephone banks (defined as more than 500 telephone calls of an identical or substantially similar nature within any 30-day period); or
•Any other general public political advertising. General public political advertising does not include Internet ads, except for communications placed for a fee on another person’s web site

Even though the FEC Internet and Communications Activity regulations were updated in June 2007 and appear to cover most Internet activity due to the language, "and any other form of communication distributed over the Internet", they were created before the widespread use of social media for political campaigns. (See page 64 of the Final Rules and Explanation and Justification for the Internet Communications Rulemaking). Therefore, I believe the time is right for the regulations to be updated again to reflect changes in technology. As the 2008 Presidential Election first demonstrated, social media has the power to elect a President and change the course of history due to its viral nature.

Until the widespread use of the Internet in the U.S. in the late 1990's, people obtained most of their information from television and print. In my opinion, some people already obtain most of their information from social media and this number will increase in the future. Since television, radio, and print election advertising generally has some type of disclosure requirement, I do not believe it would be burdensome to require disclosure requirements for a federal candidate's official campaign social media pages and accounts since social media is being used to advertise to potential voters. This requirement would ensure that voters know that a social media account is the actual candidate's and not a fake page. I am not in favor of the FEC creating new guidelines that may hamper free speech or make it economically burdensome or administratively difficult for candidates to utilize social media.

Earlier this year, the State of Maryland created model social media election regulations that may be easily adopted by other states for state elections and by the FEC for federal elections. I assisted the State of Maryland in drafting these regulations and input was received from Facebook, Yahoo!, AOL, and Google. Since Maryland's regulations received input from the social media industry and a social media lawyer, the final regulations were passed with near unanimous support.

In my opinion, social media will never replace personal candidate-voter interaction. However, social media adds another method to connect with voters that print and television communication does not. Therefore, due to the growing usage of social media the FEC should create social media election regulations based upon Maryland's model for the 2012 campaign cycle. I would be happy to provide assistance to the FEC when they are ready to draft federal social media election regulations.

To learn how to properly utilize social media for state and/or federal elections you may contact me at

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