Comments on [NOTICE 1999 - 24] 11 CFR Parts 100, 102, 103, 104, 106, 107, 109, 110, 114, and 116
USE OF THE INTERNET FOR CAMPAIGN ACTIVITY

Submitted on behalf of:

The Association of INFORMATION TECHNOLOGY PROFESSIONALS
315 South Northwest Highway, Suite 200
Park Ridge, IL 60068-4278
Phone: 847.825.8124 - 800.224.9371
FAX: 847.825.1693
URL http://www.aitp.org

by:

Charles Oriez
AITP National Legislative Chair
coriez@oriez.org

The Association of Information Technology Professionals, formerly known as the Data Processing Management Association (DPMA) has been in existence for approximately 50 years. It is the mission of AITP to provide superior leadership and education in Information Technology. AITP is dedicated to using the synergy of Information Technology partnerships to provide education and benefits to our members and to working with the industry to assist in the overall promotion and direction of Information Technology.

1. Introduction

According to a cursory search of altavista conducted on January 4, 2000, there are currently over 60,000 web pages which mention one of the George Bushs, 45,000 mentioning Al Gore, and over 15,000 each for John McCain and Bill Bradley. Clearly, the internet, and in particular the World Wide Web, is being used for political speech.

While not all or even most of those pages are related to the 2000 election, they do point to one key factor related to the growth of the internet as a communications medium. The minimal cost and technical ease of publishing on the web is such that everyone who thinks they have something of value to say has the ability to say it. The only limitation is their ability to make their presentation interesting and visible enough so that their message rises above the general noise level. And that, we submit, is an issue related to the skill of the presenter that is not susceptible to FEC regulatory intrusion.

There is however one area where FEC regulatory attention is needed, and will be addressed in more detail in the e-mail portion of this commentary. Some candidates have engaged in the use of Unsolicited Bulk E-mail (UBE), more commonly referred to as spam. While we believe this practice to be political suicide, its growing use by marginal candidates make it appropriate for the FEC to focus on some of the practices related to it.

2. Candidate web sites

If a candidate spends money to develop and maintain a web site, then the cost is clearly an expenditure. What must be recognized though is that very frequently the page is developed and maintained with little or no cost, and no purpose is served by artificially inflating the expenditure or contribution beyond the amount actually spent or contributed. Unless the page is developed by a paid staff member, the cost is likely to be below the minimum threshold for reporting.

Hyperlinks drive the world wide web. To argue though that a hyperlink to another candidate’s page constitutes a contribution fails on several key points. For a congressional candidate to provide a link to his party’s senate candidate from his page is no different from the congressional candidate’s campaign office giving a voter or volunteer the phone number of the senate candidate’s office over a voice phone line. The FEC has never suggested that this act would constitute a contribution to the senate candidate. And since the pointing candidate has no control over the editorial content of the page he is pointing to, existing law in related fields should apply. For instance, the courts have generally held that a person providing a link to a page that was found to be infringing on someone’s copyrights is not himself culpable for the infringement for the act of providing the link.

As to links to vendors, these would ordinarily be normal commercial transactions. A candidate will almost invariably use a separate outside vendor to handle his secure credit card transactions, for instance, rather than setting up his own secure server. A link to a vendor site selling campaign paraphernalia, or even a link to Amazon.com for the purpose of selling the candidate’s obligatory ‘vision book’ should not be viewed as a contribution, so long as the normal commercial terms are applied. There are other potential examples. For instance, a Congressional candidate in Colorado might decide that as part of a pro environment campaign message on their page they would want to sell John Fielder’s Colorado photo books via a link to Amazon. So long as Amazon pays them the same commissions that they would pay anyone else with the same link, this is nothing other than a standard commercial transaction.

3. Web sites of publicly funded candidates

A candidate soliciting and collecting contributions via his web site had better be using a separate secure server for all credit card transactions, and that is the only thing they will be using such a site for, given the normally higher costs of secure servers. That being the case, all secure server expenses and any directly related banking costs involved in establishing and administering the credit card merchant account will be solely related to campaign fundraising, and therefor be both easy to itemize and exempt under existing regulations.

4. Web sites created by individuals

a. Text and other materials

We propose a total exemption for individuals posting commentary on their own pages. Your regulations already provide that the actual labor of a volunteer is not a reportable contribution. If I create a site on my own there is no reportable labor expense.

The only issue that remains is the costs of maintaining the physical media and acquisition of the software used to prepare and maintain the site. Storage is so inexpensive that Geocities, Angelfire, Tripod, and numerous other facilities offer free space. Even at retail, the cost of storage media ranges from 1.5 to 2 cents per megabyte(M). A site which has more than 5M of candidate advocacy material would be considered exceptionally large, yet would cost the person developing the pages about $1.20 maximum if the space was used for an entire year. Clearly that is a minimal expense. Similarly, software used to create web pages is exceptionally cheap. I am currently involved in the development of web pages on my home PC, and estimate that I have spent less than $200 on software directly or even peripherally related to the development of web pages, not counting Office 97. Creation of the political web pages constitutes a very small percentage of the time spent on that machine, and political web pages account for a very small percentage of the time spent creating all web pages. If you fairly allocate the cost of the hardware (including both storage and processing), software, and the ISP’s connectivity charges, the amount apportioned to political sites could easily be mistaken for a rounding error, even without calculating depreciation. I suggest that the average campaign volunteer, whether acting in concert with the candidate or independently, who is going to produce a site worth visiting will be in the same position.

The same logic applies to the downloading of banners, images, or even textual materials, though why I would download the text of a speech instead of hyperlinking to it on the candidate site eludes me.

b. Hyperlinks

You correctly noted that the cost of providing the hyperlink is non-existent. Assuming that the link is textual only, I calculate that I would need to report a contribution of .00075 to provide a link from my page to a single presidential campaign. I could provide textual hyperlinks to every one of the major 15 presidential candidates for approximately 1 penny ­ an amount that I would drop as a rounding error on a larger report.

c. Web sites created by campaign volunteers

The short answer is 'of course they’re exempt'. Either the phone or the cable modem is in the house, the page is developed on a home PC, using personal software.

d. Disclaimers

A disclaimer is unnecessary in the normal course of events. If the author goes to the trouble of registering a domain name for the page, the contact information is readily available from internic or another registry. Absent that registration, the expenditure falls into the category of rounding error, which makes the requirement for a disclaimer illogical.

5. Nonconnected committees and other unincorporated organizations and
6. Corporations and labor organizations

Our comments related to connected committees and individuals are incorporated here by reference. We also feel that your existing ruling which permits educational/unbiased links under section 431(9)(B)(ii) to be logical and appropriate. If a paid staffer for a corporation, labor union, corporation, or unincorporated organization is used to develop web-based election materials, it can be treated no differently from any other paid staff work on behalf of a candidate. There is no need to treat the reporting of that work in any other fashion merely because the final product happens to be delivered electronically.

7. News story exemption

You raised a question within the context of the news story exemption that we wish to address, and where we feel that FEC regulatory action might be appropriate. You noted that some e-mail is received by recipients without their having requested it. The short term for that type of e-mail is spam. When spam is transmitted by a candidate to a potential voter, the candidate is engaging in a course of action which has significant problems, and should be prohibited. First, virtually every internet service provider has a clause in their contract with every customer, including candidates, which prohibits the transmission of spam. By engaging in transmissions through that ISP which exceed that permitted by the ISP, the candidate is causing the ISP to make an unwilling/unwitting campaign contribution in the form of the excess costs. By sending that spam to another ISP for delivery to their own customers, they are creating an expense for the receiving ISP. In the case of AOL for instance, the cost of approximately 1/3 of their mail servers is related to the receipt and delivery of spam.

Most ISPs will cancel the account of any customer who spams. A US Senate candidate in New Jersey lost some of his connectivity last February for this reason. Because of this, many spammers, politicians or otherwise, will attempt to disguise the origins of the spam by transmitting it through third party servers whose technical flaws permit theft of resources by outside parties. The third party server, referred to as a hijacked relay, makes an involuntary campaign contribution when this occurs. During the 1998 electoral cycle, a state legislative candidate in Philadelphia made use of an unsecure local government server in California to transmit his campaign message.

We would urge that the FEC, in relaxing its regulations for what can or can not be done in the realm of internet communications, should enact an absolute prohibition on all unsolicited bulk e-mail as a means of communication, to guard against these involuntary campaign contributions. Candidates can and should be required to maintain logs showing that any list mailed to is run as a "confirmed opt-in" list, with appropriate auditing capabilities. The logs necessary for this auditing function are readily and easily maintainable, and should be required.

Respectfully submitted,

Charles Oriez