Twitter, Facebook in crosshairs of political speech regulators

Twitter and Facebook are great means for keeping in touch, and popular tools for political activists.  Unless… potentially… if you’re in Maryland.

The Maryland State Elections Board, in an attempt to extend disclaimer requirements to social media, is proposing new regulations that impose burdensome requirements on Maryland politicos.  Essentially, Maryland wants to treat social media like snail mail.  Their thinking must be that if a piece of political mail requires a statement declaring who paid for it and sent it, so too should these new forms of communication.

Let’s set aside for a second the whole problem of equating a Twitter feed, that a person only sees because he or she has asked for it, with unsolicited bulk mail.  Let’s also set aside the fact that social media sites already have means to check the bona fides of users, and that fraud and abuse are better handled by the ISP or service provider than by a one-size-fits-all identification requirement that applies only to Maryland political actors already subject to the state disclaimer requirement. 

The real devil is in the details.  This new regulation would extend the document retention requirements to electronic communications.  So, because the state requires a candidate to retain a copy of campaign brochures or bulk mail for a year (which is annoying but doable) it must now retain a sample of each electronic media advertisement, text message, or other social media communication.  The copy must either be a paper copy, or an electronic copy that can produce a paper copy of the message. 

The mind boggles at the effort needed to comply with this requirement.  And for what?  If someone is pretending to speak for the campaign, the campaign won’t be able to retain the message, as it isn’t the source.  And the source may not be a Maryland party subject to any restrictions adopted by the State Election Board.  Meanwhile, the hard-working campaign manager has to make certain the campaign creates this voluminous record, and does it perfectly, lest the campaign be liable for distributing campaign material in violation of Maryland law.

Interestingly enough, representatives from Google, Yahoo, Facebook and AOL supported this rule.  Apparently they believe that the disclaimer requirements will reassure political advertisers and protect their advertising revenues.  Sure – these providers don’t have to observe the retention requirements, and in any case wouldn’t be a party to any violations.  We are unimpressed with their commitment to unfettered political advocacy, at least last week, in Maryland.

This isn’t the end of the story.  The State Board will hold a future hearing and vote on a final draft in the coming months.  By that time, one hopes the Board comes to its senses and concludes that this requirement does little that is good, and abandons the false analogy that electronic communications need further regulation. 

The Center for Competitive Politics is now the Institute for Free Speech.