Twitter Invites Zealous Bureaucrats to Regulate its Service

By including Democrat candidates for California elected offices as recommended users and omitting Republicans until only recently, Twitter has drawn the attention of those in government interested in opening the door to state or federal regulation of online campaign activity, including social networking sites.

Twitter’s announcement that it intends to do away with its suggested user list is a good idea, at least as it applies to candidates. Through a system where corporate executives chose which individuals, including candidates, were recommended, the company put itself in the position of appearing to provide something of value to some candidates over others. It should be no surprise that zealous bureaucrats might seize the opportunity to use this as an excuse to regulate the company’s product.

The notion that some government bureaucracy is going to be able to keep up with, let alone regulate, campaign activities online defies reality.

We’re seeing a rapidly evolving environment where much of the communication in society is now taking place online, using tools that rise and fall in popularity overnight. Trying to apply cryptic, cumbersome campaign finance rules written for another era to this new forum would be an exercise in futility, but I’m sure there are plenty of bureaucrats more than willing to do it anyway.

California’s Fair Political Practices Commission, which regulates campaigns, will soon hold hearings on the subject of regulating Internet campaign activity. In advance of those hearings, a few questions scratch the surface demonstrating our concerns with proceeding down this path:

• How shall disclaimer rules be applied to tweets on Twitter? Since messages using the service may not exceed 140 characters, the disclaimer may in some cases be longer than the message itself. Does a “Paid for by message…” need to be included when the service itself is free? Does it make a difference if the person generating the tweet is a paid campaign staffer or an unpaid volunteer?
• What is the in-kind cash value of a Twitter follower? Twitter recently featured several prominent Democrat candidates, and later Republicans, as suggested users on the site, helping to generate tens of thousands of followers for these candidates. If such a listing is to be considered an in-kind contribution, how shall it be calculated?
• If a candidate has an ad on Facebook, but is charged only when someone clicks on the ad and is taken to a landing page, does a disclaimer as to who paid for the ad need to appear on the ad, or just the landing page?
• What agency has the regulatory authority to impose regulations on Facebook or Twitter? What jurisdictional boundaries apply? Can rules be applied, and enforced, if these sites store their data on servers located outside of the United States?
• Finally, what is the compelling government interest in adopting new regulations applying to online campaigning and communications?

Introducing government regulation of online speech under the guide of campaign finance laws is both unrealistic, and threatens to bring the proverbial camel’s regulatory nose under the tent.