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;
•Newspaper;
•Magazine;
•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 http://www.shearlaw.com/.

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.

Maryland's Social Media Election Regulations Are a Model For the Rest of the U.S.

This past week, the state of Maryland passed social media election regulations that require candidates for state political office to include an authority line on all of their campaign social media accounts. Maryland is technically the second state in the country, behind Florida, to officially address social media usage in state political campaigns. However, Maryland is the first state to proactively create social media regulations before its election board was forced to do so because of litigation.

Social media election regulations are needed so that voters are able to determine whether a social media account they are viewing is part of a candidate's official campaign. Of the most widely utilized social media platforms, only Twitter has a process that officially verifies accounts. Therefore, it is difficult to determine whether the page you are viewing is created by or on behalf of a person, an entity, or an activity.

Under Maryland's new regulations, social media is to be treated in the same manner as other campaign material and communication. From a conceptual standpoint, social media is an online extension of a candidate's television, radio, or print advertisements. Due to the drastic increase of social media usage since the last election cycle, it was time for political social media campaign utilization to be regulated. It is only a matter of time before the Federal Election Commission decides to regulate social media for federal campaigns.

I worked with Maryland's State Board of Elections ("Board") to draft Maryland's new social media election regulations. In June, the Board voted 4-0 to pass the regulations and earlier this week a committee of state lawmakers voted 11-1 to implement the new regulations for this upcoming election cycle. The regulations received bipartisan political support and they were also supported by the social media business community. The almost unanimous support from all of these stakeholders apparently means that I was successful at working with the Board to draft fair and balanced rules.

The regulations are not onerous on candidates and are inexpensive to follow. Also, they do not have any additional requirements that go beyond what is required for other forms of campaign media. The only drawback with the new regulations is that they do not teach candidates how to utilize social media. From my review of some of Maryland's major political candidates' social media accounts, it is apparent that politicians in Maryland need the assistance of a social media lawyer to teach them how to better deploy their social media assets.

To learn how to abide by Maryland's social media election regulations and to successfully deploy social media in your campaign you may contact me at www.shearlaw.com.


Copyright 2010 by the Law Office of Bradley S. Shear, LLC.  All rights reserved.