FTC enforcement of its new blogger guidelines has involved typically high-profile actions against Anne Taylor LOFT (FTC ultimately taking no action) and Reverb Communications (for allegedly deceptive postings of positive reviews on iTunes for games produced by Reverb clients).

While premature to draw any broad conclusions on the enforcement environment for the new rules, a philosophical problem with the FTC’s new blogger framework is its willful ignorance of the advertising underpinnings of traditional media.

So, for example, while established newspapers like the New York Times and Washington Post depend for their credibility on perceived soundness of the journalistic “church-state” divide, readers are almost never proactively alerted to major advertising support from common story subjects in business and politics.  Disclosure more typically comes from investment or ownership relationships, in the form of “full disclosure” statements like that from Ezra Klein when reporting about Facebook (“Disclosure: Washington Post Co. Chairman Donald E. Graham is on Facebook’s board, and The Post markets itself on Facebook.”).  Not, though, from advertising relationships, even major advertisers.

At least not with newspapers.  PBS’ Newshour, NPR and other public news broadcasts commonly disclose underwriting relationships involving story subjects.  However, the same cannot be said of commercial television news broadcasts unless they involve investment or ownership relationships.

Since the underwriting structure of public broadcasting is substantively no different than the advertising relationships of newspapers, commercial television and most media websites, editorial disclosure of the financial support – of any kind – of such media outlets seems equally appropriate.

Citizen Media Law Project, in its coverage of Anne Taylor action, notes that the FTC guidelines limit disclosure to cases where the sponsorship relationship is not “reasonably expected by the audience”.

Put in the context of audience reasonable expectation, this seems rather generously written for the benefit of old-line media, which has relied for generations on the presumption of credibility by its readership much more so than disclosure.

Why then, shouldn’t bloggers be afforded the same benefit of the doubt that newspaper publishers have been given for generations?  Yes, there will always be egregious cases of paid-for “earned media” such as the Reverb case with iTunes.  But it used to be that time and dedicated readership was the ultimate arbiter of media influence.

This all begs the question of why the expectation of the relationship – rather than actual influence – is the measuring stick.

Question: Can a 501c3 private foundation or public charity put its tax-exempt status at risk by hosting a social media platform?  Specifically, could the advocacy and electioneering activities of individuals and groups using that social media platform be treated as the direct action – or facilitation of direct action – by that foundation of activities inconsistent with its tax exempt 501(c)(3) status?

Tax exempt organizations under Section 501(c)(3) of the Internal Revenue Code are expressly prohibited in engaging in any of these activities (as described by the IRS in its “Exemption Requirements”): “it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates.”

Would the electioneering or advocacy conduct of third party users of an exempt organization’s social media platform be deemed the conduct of that exempt organization?

As of this date, there is no specific IRS guidance on the question, nor directly applicable tax court or other caselaw of which I am aware.  In 2000, the IRS announced an intention to explore the implications for nonprofits of new media activities, and issued a formal Request for Comments.  The IRS posed a series of questions for public comment, including this one:

“To what extent are statements made by subscribers to a forum, such as a listserv or newsgroup, attributable to an exempt organization that maintains the forum?  Does attribution vary depending on the level of participation of the exempt organization in maintaining the forum (e.g., if the organization moderates discussion, acts as editor, etc.)?”

The Request for Comments did not, however, result in new rules or guidance at that time or in the ensuing years.  The IRS has issued guidelines relevant to online political activities of exempt organizations, including rules issued last summer addressing the practice of directing users to and linking to political action sites, see this site.  These Rules govern direct activities of nonprofit organizations, however, and do not obviously address the open questions of what activities will be “attributed” to an organization, as raised in the 2000 Request for Comments.

An analogous situation governs copyright infringement under the Digital Millennium Copyright Act (DMCA), and defamation, obscenity and other activities under the Communications Decency Act (CDA) Section 230.

Section 512 of the DMCA provides a safe harbor from copyright infringement for “Internet Service Providers” (ISPs), and Section 230 of the CDA provides a broad immunity from liability for a “provider or user of interactive computer service” (ICS).  In both cases, a host of a website is protected from liability for the actions of third party users.  The host cannot knowingly or willfully facilitate the unlawful conduct of the third party user, but the cases where a host’s immunity has been pierced consistently involved aggressively proactive interactivity with users, and even moderate editorial and supervisory oversight has been permitted.

Since the IRS issued its Request for Comment there has been little commentary on the subject, although in 2001 the Alliance for Justice argued for extending the DMCA copyright analogy to nonprofits social media activities.

Without further guidance from the IRS or applicable caselaw or even helpful commentary, the Alliance for Justice “best practices” still make a good deal of sense.  In particular, the site’s Terms of Use are important for establishing the ground rules for use of social media, including prohibitions on activities that would not be permitted by the hosting organization if performed directly, as well as the rights (but not necessarily the obligations) of the host to monitor and remove content.

In other words:

(1) Generally, hosting – in and of itself – should not be deemed equivalent to direct action by the hosting website.

(2) Terms of Use should clearly state limitations and restrictions on activities in using the site that would not be permitted by the hosting organization if performed directly, such as electioneering and advocacy.

(3) A hosting organization’s role should be limited only to periodic monitoring and not active editing, auditing or supervision, and definitely not screening submissions – unless intending to directly edit submissions prior to posting, which for various reasons may not desirable or practical.

(4) A hosting organization need be responsive to alerting to complaints about violations of Terms of Use and enforcement of policies, including enforcing “take down” policies similar to the same kinds of rules under the Digital Millennial Copyright Act.

Cross-posted at Mirsky & Kong PLLC.

Randall Lane wrote a provocative piece in Monday’s New York Times suggesting a “ballot buddy system” among the states to permit apportioning of electoral votes among counties or congressional districts.  The idea seems like one of those suggestions likely to go nowhere, except when you realize that (a) 2 states (Maine and Nebraska) have already moved in that direction, (b) the 2000 election may have permanently disencumbered any remaining pillars of the infallibility of the electoral college system and (c) the Obama campaign’s social media breakthroughs may have demonstrated the irrelevance of the system in the first place.

(Full disclosure: Lane’s current company, Doubledown Media, is a corporate law client of my law firm.)

In “A Ballot Buddy System”, Lane argues that the big win for deconstructing the electoral college was vividly illustrated in Nebraska, where Hillary Clinton and Sarah Palin both campaigned in Omaha in the last weeks of the 2008 campaign – something not otherwise thought likely for an otherwise reliably red state.  When counties are in play, versus whole states, “winner takes all”, a different campaign dynamic kicks in.

Of course, the Obama campaign campaigned just as vigorously in reliably red counties in Ohio and Virginia, states that were viewed as vulnerable but where lower loss margins in Republican counties could sway the state-wide picture.  It may therefore not be entirely predictable what would happen if apportioned voting becomes the national norm.

The constitutional argument for apportionment is that abolishing the electoral college would require a constitutional amendment, while individual state action of apportioned delegations would not.

As background on the problem, Lane’s essay is well-written in the Forbes tradition of understandable explanations for complex problems.  (In a former life, Lane was Washington bureau chief for Forbes.)  But Lane’s most nifty idea is that of his title, suggesting a system where equal-size electoral states (e.g. New York and Texas) that are, respectively, reliably Democratic and Republican can be persuaded to go the apportionment route to soften the political blow of the loss of a state-wide red or blue margin.  That may be, but that too gets complicated by the disproportionately skewed demographics of a state like New York, heavily Democratic in just a few, albeit populous counties, while Texas is more broadly Republican.

Which simply raises obstacles that have to be gotten around, but that need not kill the deal.

What’s more, there’s political precedent for this sort of thing.  The admission to the Union of Alaska and Hawaii in 1959 was smoothed by recognition of the states’ balanced party representation – Alaska was likely to be heavily Republican, and Hawaii equally so Democratic.  For some background on this, see this AP story from June 30, 1959.

Legal issues with privacy in social media stem from the nature of social media – an inherently communicative and open medium. The cliché is that in social media there is no expectation of privacy because the very idea of privacy is inconsistent with a “social” medium. Scott McNealy from Sun Microsystems famously drove home the point with his aphorism of “You already have zero privacy. Get over it.”

But in evidence law, there’s a rule barring assumption of facts not in evidence. Here it’s more simple: Where was it proven that we cannot find privacy in a new communications medium, even one as public as the internet and social media? Let’s go back to basic principles. Everyone talks about how privacy has to “adapt” to a new technological paradigm. I agree that technology and custom require adaptation by a legal system steeped in common law principles with foundations from the 13th century. But I do not agree that the legal system isn’t up to the task.

All you really need to do is look more widely at the law.

Privacy writers talk about the law of appropriation in privacy. The law of appropriation varies from state to state, though it is a fairly well-established aspect of privacy law. Basically, it involves the right to control how your image and identity are used, and in particular to prevent others from exploiting your image and identity. You generally do not forfeit this right of privacy by putting yourself in public. (Witness, for example, the uproar last year when Facebook launched its NewsFeeds and Beacon services.)

That’s fine only to a point, since appropriation defines privacy as a property right that only you can exploit. It doesn’t address the conceptual problems of access, interference, the right against being bothered, and the other sorts of constitutional privacy rights generally covered by the idea that we have the right simply to be left alone.

More interesting may be something completely different, like the public sphere. If social media becomes THE means by which we communicate, it then would seem to take on characteristics of other public communications such as the telephone lines, the cell phone airwaves and the “public” spectrum. Long ago, the airwaves and the radio spectrum (including the wireless spectrum) were appropriated for regulation by the government under the FCC and its predecessors. Long ago, too, the principles governing the regulation of the telephone lines were brought under a “utility” formulation, at least in part out of concern for the debilitating effects of unregulated competition in a basic public need.

The internet may be the first of these public spheres to defy easy geographical jurisdiction by the United States and other governments. But the regulatory framework has nonetheless been developing apace, probably much like the history of regulation over the 19th century railroads in the United States.

And yet, while you are communicating on the public telephone lines, in no way have you given up your expectation of privacy by doing so. Well, that is not entirely true, and that’s the point.

The government is required to get a warrant to tap your phone. Why? Because there’s an expectation of privacy, which can be overcome by a 4th Amendment showing of certain unusual cause. Yes, the information is out there. Yes, you’ve made it available, but how is that really different than what is happening on the telephone lines?

Then there are the “company town” cases. These involve situations where a single employer is, for all practical purposes, THE government in a town. There were many of these cases in the early 20th century involving mill towns, steel towns and other major industrial company towns. The companies operated company stores, they employed the police, they provided public services and utilities – they were the only employer around. The companies argued that various company actions like workplace rules or speech limitations did not subject them to constitutional principles such as the 1st Amendment (which generally apply only to governments). The courts eventually ruled that because of the expansive influence of the single employer, the companies were “the government” because they were, effectively, acting in the place of the government. (According to a National Geographic story last year, Disney was able to exempt itself from any of these shackles in Florida through sweetheart deals with the state legislature in the 1960s. That’s a story for a different day.)

The internet is a public place, perhaps as “public” as the town square or any other place that serves as a gathering point. Some would argue (and many have argued) that social media realizes the ultimate forum in communication democracy.

As a public place, you do and should give up a level of privacy by virtue of being in public. This is the philosophy behind 4th Amendment search and seizure cases where the government argues that there is a lower expectation of privacy when individuals put themselves “out there”.

Thus there is an expectation of privacy protection for what you do in your home, but less so in your trash that you put out to the curb. Less so in your car. Less so on the telephone lines. And less so on the internet. Expectations still are there, but they are much lower than in other places.

There’s nothing new about this. But that’s the point. It is not correct to say that you forfeit an expectation of privacy because you put so much information about yourself out there on the web. You do forfeit an absolute level of privacy, but you do that every time you leave your house.

What the big deal may be is the assumption that because you are in public and everybody can access you, that everybody can have you. As Daniel Solove wrote last month in Scientific American, “Instead of viewing privacy as secrets hidden away in a dark closet, they considered the issue as a matter of accessibility. They figured that most people would not scrutinize their profiles carefully enough to notice minor changes and updates. They could make changes inconspicuously. But Facebook’s News Feeds made information more widely noticeable. The privacy objection, then, was not about secrecy; it was about accessibility.”

Again, this really shouldn’t be such a remarkable legal matter, since it has never been true that because you’re sitting in a public coffee shop writing this blog, you are therefore suddenly naked and out there to be approached, hit-upon, barraged or assaulted. There are laws against all of these things, including criminal statutes, rules against playing a radio on the subway, laws against solicitations and panhandling, and regulations requiring permits for all sorts of public protests, appeals, speeches, parades and … noise.

You cannot very well argue that your privacy is intruded because someone learns something about you from something you put on Facebook. But when Facebook (or some successor fabulous social media community) becomes the de facto communications medium in this country, we might very well expect that we will develop the same kind of limitations on access that developed over time on the telephone lines. Or maybe that the law will evolve to recognize the necessity to facilitate such “public” information – and for the same purposes – in the same way that we now provide such information to the telephone company, to the Social Security Administration and to countless other organizations, governments and utilities, all so that we can simply function in a complicated society.

From my perspective, it’s the younger generation and full-on social media users who are more keenly aware of the privacy issues than my older generation looking down our noses. Again, it goes back to the definition of what social media is other than, ultimately, an evolving public communications medium. And if that’s the case, the expectation that we nonetheless retain our right to limit how our identities are exposed, shared, mixed, aggregated, commercialized and exploited is not unreasonable. But nor would such an expectation be inconsistent with how all major earlier public communication media have legally developed.

Twitter is not a broadcasting medium.  Much has been written about Twitter as the first “true” realization of the power of real-time social media.  Twitter is an advocacy medium.  Just ask Shaun Dakin.

Dakin is a former FedEx executive and, among other things, a big Twitter advocate.  He’s done something kind of amazing.  Dakin is CEO and founder of The National Political Do Not Contact Registry, a campaign to restrict “robo” calling and other less automated telephone calls for political and advocacy campaigns.

Perhaps not a particularly glamorous grassroots campaign, the Registry is exactly the kind of political “process” campaign that seeks to better participatory democracy in this country.  It’s the nuts and bolts of the workings of elections and advocacy campaigns, and it is worth both the attention of political professionals and (for our purposes) good study by the media and technology communities.  It is effective.

Two things particularly interested me about this story.  First, and slightly less new, is the broadcasting aspect of using twitter for advocacy.  Broadcasting is, after all, the most immediately obvious value of Twitter, to a wide audience of followers of a particular tweeter.  But again, Twitter is best understood as much more than a broadcasting medium.

So, second, Twitter’s power is the power of networks.

The Franklin, Massachusetts police department is one of many US police departments to use Twitter for public safety communications.  Go to the Frankin PD Twitter page and see past tweets about traffic problems, city ordinances, business registrations.  Sign up and receive emails, instant messages, and text messages for various alerts.  Nifty.

Although this shows that you probably want to limit things to stuff that’s important.  So much for the restatement of the obvious.

Lindy Dreyer blogs about marketing for associations and wrote in July on the utility of Twitter for associations.  “Twitter is an ideal vehicle for sharing URLs.  As an association pro, you have your finger on the pulse of what’s happening in your industry.  Share not only association links, but links to industry thought-leaders and breaking news.”

Shaun Dakin’s National Political Do Not Contact Registry does this well.  We all like to email our friends with “thought you might enjoy this” links to funny stories from the Onion like “Members of Twisted Sister Now Willing To Take It”, but who knows who really wants to get this stuff from me?  Twitter, on the other hand, is a terrific opt-in social network for the long tail of advocacy.  Dakin links to robo-call resources on both the Obama and McCain campaigns.  More broadly, he will usefully share links to “process” stories from elections and advocacy campaigns, basic and useful stuff for this self-selected audience of the campaign’s followers.

Twitter is also two-way, or more accurately, multi-way.  And in its best use, Twitter is a social network, not a broadcasting medium for outbound communications.

The Twitter community is a chatter community of interested followers of a person, a cause, a band, or a campaign.  Shaun Dakin’s Twitter community connects to him and across the community itself, often without Shaun’s orchestration.

For advocacy, this is manna, virally building the network on an issue.  Obviously, it includes the devotees, but by creating its own buzz the cause is dispersed exponentially.

At yesterday’s Mobile Future lunch, How Mobile Technologies are Changing Elections, Katie Harbath spoke about members of the Republican caucus tweeting from the House floor in protest to an unpopular recent leadership decision.  The members’ networks then resent the messages out to their own networks that such and such is happening.  And they told two friends, and so on.

The result is the making of a viable cause out of a single advocate’s active and proactive persistence.  All without major media, without a major online “campaign”, without the usual concerted Washington grassroots advocacy.  Just takes someone with some ingenuity, some creativity, lots of persistence, and of course, a decent cause to advocate.

My colleague Brad Fitch writes in the K Street Café about the bailout plan, “What’s Driving Citizen Outrage?”.  Fitch takes a smart look at the factors underlying the passion, and recognizes a true “grassroots” advocacy campaign when he sees one.  In fact, the bailout may be one of those seminal – and rare – political events where the citizenry is truly engaged in an uncoordinated explosion, and Fitch cites the 2006 immigration debate, the 1998 Starr Report and the 1989 Congressional pay raise as the only seriously comparable recent examples.

Wired magazine makes an analogous point in its coverage of the case, in “Online Bailout Outrage Jumps to Streets, and Into Lawmakers’ Inboxes”.  It seems that the major advocacy groups organizing massive email, letter-writing and telephone campaigns are being eclipsed – at least this time around – by the virality of individual journalists and bloggers and websites launching often comical but all-too-effective pitched battles.  As just one example, Wired mentions BuyMyShitPile.com, a parody site organizing collections of junk for submission to the government to also be redeemed in the junk mortgage bailout.  (As of this writing, BuyMyShitePile claims stated value of its “junk” assets at $801,501,210,139.11.)

Wired reports on Arun Gupta, a 43-year-old freelance journalist in Manhattan, whose email screed on the plan (“Think about it: They said providing health care for 9 million children, perhaps costing $6 billion a year, was too expensive, but there’s evidently no sum of money large enough that will sate the Wall Street pigs.”) became an instant internet megastory.  “The e-mail ricocheted through the electronic ecosystem faster than the implosion of Wall Street itself, tapping into and riding the frisson of resentment among Americans at this monumental financial foul-up.”

And yet the bailout seems inevitable despite the claims of 40 to 1 against in the phone calls and the emails.  This too is an interesting lesson in democratic action under the First Amendment’s right to “petition the government for a redress of grievances”.  The comparisons to the 1989 pay raise and the 2006 immigration bill are interesting, but those campaigns actually did result in serious legislative stops.  This ultimately will not.  You almost wonder why anyone is asking the people for their opinion at all.  It might be that the parody sites have the best idea and the last laugh.  Oh, you could mention anything, but is there really any better example than the Daily Mash’s “Bank Bail-Out Thwarted by Powerful Soup Kitchen Lobby”:

“A cartel, led by Campbell’s, is urging Congress to reject the plan and give Americans the chance to queue for a steaming bowlful of hearty broth.  …  Pressure from ‘Big Soup’ has even led to bribery accusations, with one senator being offered a $2 million campaign contribution and as much cock-a-leekie as he could stuff in the back of his car.”

What amazed me is the power of interactivity actually realized by video coverage of the Democratic and Republic National Conventions last month.  I’ll simply refer for the immediate moment to coverage of KCRW radio in Santa Monica, reported on by Anne Eisenberg last week in the New York Times.  Eisenberg’s story in the Times ogled at 124,000 views of 67 convention clips shot by KCRW staffers the Democratic Convention last month in Denver.

KCRW Reporters used cell phones – Nokia N95 phones on the AT&T 3G network – and uploaded to the KCRW web using Kyte’s streaming service.

We overlook, to some detriment, the power of intimacy in advocacy.  But video – particularly personalized and individualized video – has that power to recover the sense of intimacy lost in a big media, packaged view of politics and advocacy.  It makes me think back to those days when music was “piped” into rooms, almost like the oxygen that’s pumped into casinos.

Just look at “there” you are with the video streaming, as Andy Jordan showed us in yesterday’s Wall Street Journal Tech Diary.

Intimacy was always the highway of personalized relationships.  Quite literally, intimacy gives you access.  There’s something happening here, in the wild wild west of a new technology through services like Kyte.  Oh yes, someone or some ones will seize control and “incorporate” the technology much like television and radio were “captured” by the professional class long ago.  But the ability to get into someone’s telephone and actually see them and speak with them is eerily like that coach’s voice speaking in the quarterback’s ear.  It’s old-school.