Comments filed by AOL with the FEC.
Re: Notice of Inquiry regarding federal election laws and the Internet.
Date: January 7, 2000.
Source: AOL.

Editor's Notes:
 • AOL filed these comments electronically, by attaching a compressed MS Word file to an email.
 • The FEC kindly provided Tech Law Journal with this electronic copy.
 • Tech Law Journal unzipped the file and converted it to HTML.
 • Footnotes were converted to endnotes, and two way hyperlinked.
 • All hypertext links have been added by Tech Law Journal.
 • Fonts have been changed.
 • Page numbering has been eliminated.
 • The graphics for the AOL logo and Jill Lesser's signature have been omitted.
 • Several attachments have been omitted (printouts of AOL pages and a letter from the Senate Ethics Committee).
 • Copyright Tech Law Journal 2000. All rights reserved.

January 7, 2000

Rosemarie C. Smith
Acting Assistant General Counsel
Federal Election Commission
999 E Street, N.W.
Washington, DC 20463

Re: Federal Election Commission Notice of Inquiry 1999-24: Use of the Internet for Campaign Activity

Dear Ms. Smith:

America Online, Inc. ("AOL") respectfully submits comments in response to the Notice of Inquiry and Request for Comments published in the Federal Register on November 5, 1999 ("NOI").[1]

Founded in 1985, AOL is the world's leader in interactive services. AOL operates (1) two worldwide Internet services, America Online (with more than 20 million members) and CompuServe (with more than 2 million members); (2) several leading Internet brands including ICQ, AOL Instant Messenger and Digital City, the Netscape Netcenter, and AOL.COM Web portals; and (3) the Netscape Navigator and Communicator browsers.

As an organization deeply committed to the Internet’s ability to engage citizens in democracy, AOL encourages the Commission to ensure that the federal election laws promote this new medium’s potential. The goal of any future FEC action should be an understandable and unambiguous legal framework that allows maximum freedom for all individuals and entities to participate in political and democratic activities via the Internet, with only the most minimal of government involvement.

Commissioner Karl Sandstrom has declared that "[i]n regulating the Internet, we should seek to unleash its promise. Only such regulation as is absolutely necessary to achieve the core purposes of the law is merited."[2] Likewise, in comments to the Judiciary Committee’s Constitution Subcommittee of the United States House of Representatives, FEC Commissioner David M. Mason stated:

The Internet presents First Amendment questions in a new and beneficial light, especially compared with broadcast communications.

. . . .

The combination of open access and relatively low cost threatens to undermine the rationale behind the campaign finance regime. Just as Internet stock valuations appear untethered to underlying finances, the value of political communications on the Internet is driven more by innovation and presentation—that is to say by ideas—than by placement and spending. When the political impact of a site appears to far exceed its dollar cost, or when marginal costs are extremely low, it is difficult to apply a regulatory regime founded upon limits on finances, intended, we must remember, only to prevent financial corruption.[3]

AOL is encouraged by sentiments such as those expressed by Commissioners Sandstrom and Mason and by the Commission as a whole in its recent Advisory Opinions. AOL is also greatly encouraged by the FEC’s support of the Democracy Network’s ("DNet") and the League of Women Voters’ online project, a project coordinated with AOL. As DNet informed the Commission in its Advisory Opinion Request, AOL is expecting to integrate the DNet debates into all of its, and its affiliates’, election materials.

AOL, therefore, seeks in these comments to build upon these positive statements and developments. It also wants to highlight the Internet’s potential for enabling citizen involvement in democracy, decreasing citizen cynicism in government through greater accessibility to information and officials, and increasing voter turnout by providing candidate and election information when, where, and how the voter wants to receive it. In addition, these comments address several specific issues presented in the NOI; urging the Commission to:

• establish a clear safe harbor for most individual use of the Internet for political activity;
• recommend to Congress that the $250 reporting threshold for independent expenditures should be increased;
• hold hyperlinks are not "something of value" unless the entity charges other candidates for the same link;
• specify that the media exemption is as available for Internet news providers such as AOL as it is for traditional media; and
• build upon recent Advisory Opinions to ensure that organizers of online conversations are not held responsible for statements made by a persons participating in those discussions.

Finally, AOL applauds the Commission’s proactive approach of gathering information before determining how to best address the complex issues raised when applying the federal election laws to the use of the Internet for political and issue communications. This Notice of Inquiry, and any future rulemakings, should prove to be an efficient manner to consider these issues on the macro level while it continues to respond to more discreet issues through Advisory Opinions. In conjunction with this approach, AOL recommends that the Commission allows sufficient time after the 2000 election cycle has concluded before commencing any comprehensive rulemaking. It is already apparent that use of the Internet during the 2000 cycle for political activity will be significantly different than in the 1998 cycle. Accordingly, the Commission should use this opportunity to establish a more complete and current factual basis before enacting any new regulations.

In Reno v. ACLU,[4] the United States Supreme Court confirmed that Internet communications deserve a high level of First Amendment protection as it invalidated portions of the Communications Decency Act. In determining that these provisions were unconstitutional, the Court held that the Internet deserved more First Amendment protection than television or radio communications.[5] It noted that justifications for regulation of speech in broadcast media, including its "history of extensive government regulation," "scarcity," and "invasive" nature, "are not present in cyberspace."[6] The Court stated that "the vast democratic fora of the Internet" have not been subject to the type of government regulation that has attended the broadcast industry.[7] Similarly, the Court continued, "[c]ommunications over the Internet do not ‘invade’ an individual’s home or appear on one’s computer screen unbidden."[8] And, "the Internet can hardly be considered a ‘scarce’ expressive commodity" given the availability of "relatively unlimited, low-cost capacity."[9]

Moreover, the Court declared the importance of unleashing the Internet’s "new marketplace of ideas":[10]

This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought."[11]

Congress likewise has promoted a strong national policy of fostering the continued growth of the Internet and refraining from unnecessary government regulation:

It is the policy of the United States (1) to promote the continued development of the Internet and other interactive computer services and other interactive media; [and] (2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.[12]

Affirming the logic underlying this policy, a recent Federal Communications Commission study concluded that "[t]he Internet, from its roots a quarter-century ago as a military and academic research tool, has become a global resource for millions of people. As it continues to grow, the Internet will generate tremendous benefits for the economy and society."[13]

The continued experimentation, innovation, and growth of the medium as a tool to enhance democratic participation depends in large measure on individuals and entities being able to provide political and candidate information without fear of having such coverage being deemed an illegal campaign contribution or expenditure. Accordingly, AOL seeks federal election regulations that promote the Internet’s potential to dramatically improve America’s political knowledge and involvement.

The Internet is fast becoming as central to people’s lives as traditional mass media. The United States has 110 million Internet users at this time,[14] and experts predict that number will grow to 133 million users by the end of the year 2000.[15] These numbers already dwarf the number of subscribers to daily newspapers.[16]

This phenomenal growth extends into the political arena. During the last presidential election, some 21 million people got political news online. Since 1996, that number has skyrocketed. In exit polls taken in November of 1998, 47 percent of voters said they got political information from the Internet. According to a recent Pew Research Center poll, of those who voted, one out of three said that their vote was influenced by what they learned online. The Internet’s impact on Election 2000 is widely expected to dwarf its impact of 1998 and transform the way Americans become involved with the voting process.

Federal election law is based on the presumption that communications to the general public about federal candidates cost money, and that spending may be prohibited, limited, and/or required to be reported. The entire structure of the federal regulation of political activity by individuals, corporations and labor unions, and political committees is based on accounting for the amount spent. Congress assumed in 1975 that, without spending, political speech would consist merely of standing on a street corner and shouting, one of the few forms of public communication not regulated or reportable under the federal election laws.

The rise of the Internet as a medium of mass communication changes these fundamentals of communicating political speech. It thereby presents the FEC with a conundrum for interpreting and enforcing the federal campaign finance laws. Individuals now can reach hundreds of people simultaneously with list serves and blast e-mails, and organizations can mobilize thousands through a posting on a web site. Furthermore, profit and non-profit organizations have sprung up to convey political news on the Internet, complete with links to candidate and party web sites, reprints of candidate materials, interviews and debates with candidates, and polling information.

One of the realities of the Internet is that keystrokes usually trigger no or few incremental costs; thus, e-mail, speech on web sites, and hyperlinks involve little or no additional costs to the user. Now that AOL and some other on-line service providers routinely make web-site creation software available to subscribers as part of their regular service package, entire web pages can be created without any identifiable incremental costs. Without a cost to communication, current law has nothing to measure: not only are the bans on corporate and labor spending for speech on behalf of federal candidates, and limits on in-kind contributions by individuals, difficult to interpret in the Internet context, but the entire mechanism for disclosing political expenditures and requiring adequate information about the identity of the speaker is thrown into question as well.

Another difficulty for the FEC is that political speakers prior to the Internet were largely parties, candidates, and well-organized groups of persons, all at least passingly familiar with the federal election laws and FEC reporting obligations. Internet political speakers, by contrast, tend to include large numbers of individuals who are completely unaware that federal election law may reach their independent or volunteer activity. Internet speakers also increasingly include small newsletter publishers and news-based web sites, and private non-profit entities or governmental agencies, all of which assume their activities by their very nonpartisan nature should be exempt from FEC requirements. AOL urges the FEC in this rulemaking to recognize the importance of leaving individual speech on the Internet unburdened by federal election law requirements, to the greatest extent possible.

In recent Advisory Opinions issued to the Minnesota Secretary of State,[17] Democracy Net,[18] and Election Zone,[19] the Commission has concluded that nonpartisan activity on the web (loosely defined as providing campaign-related information and candidates’ statements in a way which treats all candidates on an equal basis) is exempt from any FEC reporting requirements. In another Advisory Opinion issued to the Bush campaign,[20] the FEC found that Internet activity by campaign volunteers acting on their own need not be tracked and reported by the candidate’s campaign committee. These new Advisory Opinions reflect a growing consensus at the FEC that Internet activity should not be burdened by traditional campaign finance regulation unless it involves the expenditure of large sums of money for overtly partisan political speech. More importantly, these Opinions (and comments by individual Commissioners) show that the FEC is seeking not to inhibit the communicative power of the Internet, but rather to "unleash its promise."[21] AOL urges the Commission to continue with this positive approach in this NOI, and to incorporate it into any new regulations.

AOL seeks to ensure the continued growth of the Internet and interactive computer services as a medium to help broaden the political involvement of American citizens. Through AOL programming like that described below, AOL and the Internet will continue to improve online services and connect ordinary Americans to the public policy decision making process. Steve Case, President and CEO of AOL, has emphasized AOL’s commitment in this area:

[W]e at AOL have been thinking about how we can best use this medium to strengthen democracy and increase citizen participation in our political process. . . . The challenge for us is to shape the Internet’s role in the political process and not to allow it "simply to happen" as it did with television. . . . It will be important in the early years to identify models of what will work and what will not. And it will be important to establish ground rules for how to position the Internet in the political process. . . . We’ll have to experiment to figure out which tools of democracy will strengthen our interest and resolve in governing ourselves. Certainly some of the old ones are rusty. It’s up to those of us who are shaping this medium to make realizing this potential a top priority, and to stay focused on this goal as we continue to grow.[22]

1.  AOL Itself

America Online, a Delaware corporation based in Dulles, Virginia, has approximately 12,100 employees and operates the world’s largest interactive computer service. AOL is not owned or controlled by a political party, political committee, or candidate. Stock in AOL is publicly traded on the New York Stock Exchange under the symbol "AOL." No one person, group of persons, or organization has a majority ownership interest in the company, which has a current market capitalization of over 173 billion.

AOL’s more than twenty million subscribers ("AOL members") disseminate and receive information by means of computer modem connections to AOL’s computer network. 50% of the AOL membership uses AOL as a regular news source, clicking on the news channel to get news information. Similar news sections are featured on other AOL brands, including Netscape’s Netcenter, CompuServe, AOL.com and Digital City, AOL’s local affiliate network, providing news coverage for more than 200 cities. The types of information that are available to AOL members through the AOL service are "as diverse as human thought."[23] They include:

• Information provided by numerous independent third-party publishers—ranging from large, well-known news organizations such as the New York Times, Newsweek, Time Magazine, CBS News, and ABC News to more targeted information sources such as George Magazine, the National Journal, and local newspapers—which enter into licensing agreements to make their content available through the AOL service in exchange for royalty payments or other consideration.
• Information produced by AOL itself, including live news and public affairs programming.
• Information posted on the Internet, including the portion of the Internet known as the World Wide Web, which is available to AOL subscribers because Internet access is a basic feature of the AOL service.
• Information of all sorts that originates with AOL subscribers in the form of electronic messages posted on electronic message boards, exchanged in electronic "chat rooms," and sent via electronic mail or "instant messages."

Persons who are not AOL members may access some of AOL’s vast content and services through AOL.com, a publicly available web site similar to WashingtonPost.com, ABCNews.com, CNN.com, and other news sites on the Internet.

The AOL Network (proprietary service and Web site) is visited by the largest number of unduplicated users. And, like the Internet generally, the number of AOL subscribers is growing at an astounding pace. For example, it took the AOL service five years to reach its first million members. Today, AOL added its most recent million in just over three months. At the peak of any given day, AOL has more users than two of the top cable television networks have viewers in prime time. Thus, AOL has 1.2 million peak simultaneous users and 3 billion Web URLs served daily. Moreover, beyond the growth caused by new people coming online for the first time, the amount of use by people already online continues at an accelerated pace. Once online, AOL’s users depend more and more on the Internet: compare November of 1996—AOL’s average member spent 14 minutes a day on the service—to today—AOL’s average member spends 54 minutes a day.

News and public affairs programming is one of the most important categories of information available through AOL’s service (and on its web site). AOL News, an AOL unit with its own dedicated news staff, makes available news content through AOL’s "News" channel, which includes seven separate topical departments: current national and international stories, politics, business, sports, entertainment, weather, and local. This content consists of a combination of all the types of information listed above, including content from various news providers and commentators such as the Associated Press, Bloomberg, Business Week, Newsweek, Reuters, the New York Times; individual columnists, such as U.S. News and World Report’s Roger Simon; and material created by AOL itself. The information consists of traditional print and news services, audio, video, and still images, and interactive, real-time dialogue. Thus, AOL News contains content that is the same as or functionally equivalent to what appears in newspapers, news magazines, and radio, and television.

In accordance with standard conventions in the online world, AOL’s news content often includes electronic "links" to other related news stories and primary sources available on AOL or on the World Wide Web. A link is an image or a highlighted phrase contained on a web site that a user can select (e.g., by clicking with a mouse) in order to move to another document or site (which may or may not be created by the author of the site containing the link). A page to which a link is provided can be accessed in other less user friendly ways—for example, if the page is otherwise available on the World Wide Web, a user with the web address for the page may access it directly (i.e., not through a link) by using any Internet browser software.

AOL News is the premiere source of online news in the world. It regularly receives nearly 14,000,000 subscriber and user visits per month and makes available an average of over 10,000 new or updated news stories per day. Each week, there is more traffic on the AOL News channel then the combined page views on the web sites of CNN, MSNBC, USA Today and The Washington Post. AOL also exceeds other news and information sites in the number of unique visitors to the site. According to one of the leading online measurement services, Media Metrix, the number of unique visitors to AOL News exceeded traffic to CNN.com and MSNBC.com[24]

AOL’s status as a leading online news source was reconfirmed by the traffic on AOL News generated by the release of the Starr Report. On the day of its release, approximately 1.2 million users viewed the Starr Report on AOL’s general web site alone (which does not include AOL members who viewed the Report through AOL’s members-only online service).[25] More people got this news from AOL than from the web sites for ABC News, Fox News, USA Today, and the Washington Post combined.[26] Moreover, AOL members collectively spent over 10 million hours on-line on the day the Starr Report was released.[27]

As the Wall Street Journal observed, "If the global village had a town square late last week [when the Starr Report was released], it was 22 miles away from Washington, in Reston, VA.: America Online’s network-operations center."[28] AOL’s role as the "town square" was not an isolated event; at times of big news events, AOL’s News area consistently attracts millions of viewers. On the weekend that Princess Diana died, for example, "AOL had more than 6 million visits to its front news page."[29]

AOL News is not only the premiere online news source; it has become a significant source of news even when compared to more traditional media outlets. According to a survey conducted in 1998, the more than 5 million subscriber and user visits per month to AOL News were greater than the combined circulation of the top three daily newspapers in the country—the Wall Street Journal (1.8 million readers), USA Today (1.7 million readers), and the New York Times (1.1 million readers).[30] As many users get news from AOL during its prime hours as from television stations such as CNN.[31] Thus, by any measure, AOL is a tremendously significant and rapidly growing source of news information and programming.

B.  AOL’s Democracy-Oriented Coverage

1.  Election ’98 Program Summary

As part of its ongoing commitment to foster American democracy and bring its users the broadest range of information and participatory political resources, AOL introduced its Election ’98 content area in early September of 1998. This area consisted of a vast number of electronic pages of information through which a user could navigate using links and online searches for keywords or subjects. Election ’98 allowed users to obtain information prepared for or by AOL News on the candidates in all federal and certain state races, and provided links to organizations which summarized candidate’s positions on issues (through Project Vote-Smart, a 501(c)(3) educational entity) and to myriad organizations that rated candidates and discussed issues (again through Project Vote-Smart). AOL also provided links to candidate and party web pages where they existed, on a non-partisan basis, so that users could obtain more information from those sources. Additionally, Election ’98 was a vehicle through which AOL subscribers were able to participate in AOL forums devoted to public issues (including "Auditoriums" with invited guests such as candidates), to observe on-line political debates, and to access on-line political surveys and polls. The Election ’98 program area on AOL could be accessed through the AOL online service by its subscribers; a subset of the same content was available free of charge to any Internet user on AOL.com.

2.  Election 2000 Program Summary

For the 2000 elections, AOL continues to build upon and exponentially expand its Election ’98 offerings described above. AOL expects to deliver over 120 million page views on its Election 2000 products by the time a new president is elected and approximately 20 million impressions on Election Day alone. Included in AOL’s suite of news and election products for the 2000 election are:

• Election 2000 Guide: Zip code candidate lookup directory with debate halls for national and local candidates to interact with their opponents on the issues. AOL estimates that at least 34 million people will access this guide by Election Day.
• PresidentMatch: AOL has partnered with Personalogic and CBS News to create an interactive service that helps users identify how closely each presidential candidate’s issue positions match their own.
• Live interactive coverage of key election events will be webcasted in audio and video formats much like a television program. For example, AOL is planning an active presence at both the Republican and Democratic conventions that includes live audio and video feeds, live interviews and talk shows, technology demonstrations and activities with the delegates.
• My Government: Zip code search for users to find out who represents them and how they have voted on legislation.
• E-Registration: AOL is part of a coalition developing a web site to increase voter registration.
• E-Debates: AOL is working with the Commission on Presidential Debates and the Markle Foundation and other news web sites to develop a format for an online version of the presidential debates.

A preview page that demonstrates what will be available on the election site is attached as Exhibit 1 for reference purposes. The site will formally launch in mid January.

3.  AOL’s Election Program Specifics

With the assistance of Capitol Advantage, an independent contractor that also works with other interactive sites to provide political information, AOL selects, organizes, presents, and in some instances creates the vast quantities of political information and commentary available through AOL. AOL continues to add information to, and subtract information from, its Election area in accordance with its own editorial judgment of what content will be of greatest interest and use to its members and other users.[32]

Upon entering the Election area, AOL members and users are presented with a "start page" containing a graphic map of the United States, a pull-down list of states, and a zip-code search field. AOL members and users can click a state on the map graphic, select a state from the pull-down menu, or enter their zip code.

Using any of these means, AOL members and users are taken to a page containing area-specific information on upcoming elections and candidates. In addition to providing a list of all upcoming elections and candidates in the selected area, these pages contain state-specific voter registration information, sample ballots, and links to various political-party web sites. They also offer links to financial disclosure materials, which will be expanded in the future as electronic disclosure filing becomes more widespread.

These area-specific pages also include links to pages that contain information about specific candidates. By clicking on the names of specific candidates, AOL members and users are taken to the candidate information pages. Every ballot-qualified candidate in every state has been identified (through direct contact with all Secretaries of State, political parties, and other sources), and the names of all candidates, regardless of party, are entered into AOL’s Election database once received. Every candidate in this AOL database is described on a separate AOL candidate page, reached by clicking on the candidate’s name on the state page.

Each AOL candidate information page contains basic biographical information about the selected candidate. This biographical information has been obtained from FEC records, the candidate’s party, and/or the candidate him or herself. In addition to general biographical information, these candidate pages contain links to each candidate’s campaign web site whenever such sites exist and are known to AOL. Candidate web pages themselves are not, of course, maintained or controlled by AOL but by the candidate and his or her committee. In the event that a candidate does not have a web page, no link is shown, although a candidate’s mail and e-mail address is listed where that information is known to AOL.

The candidate information pages also contain links to web sites sponsored by various non-partisan groups, such as the Democracy Network, the League of Women Voters, and the Center for Responsive Politics, which provide the public with information and data on candidate voting records, fund raising, and policy positions. In addition, AOL plans to integrate the non-partisan online debate grids produced by Democracy Network and the League of Women Voters into the race pages of its voter guide. Again, the content on these linked web pages is not created, maintained, or controlled by AOL but by others. Also, both the area-specific and candidate-specific pages provide links to various news materials relating to the candidates and issues involved in these elections. Additionally, all AOL Election content pages also have links to other pages available in AOL’s news programming, such as the online polling area, and a summary of elections around the country.

As discussed above, the use of links is central to the power of interactive services, the Internet, and the World Wide Web. In its news judgment, AOL believes that the provision of links to other information content providers (starting with the Democracy Network, the League of Women Voters, the Center for Responsive Politics, the political parties and candidates themselves, and extending out throughout the World Wide Web to all other sources linked to those sites) is the most efficient and effective way for its users to obtain accurate and complete information available on races and candidates. AOL’s news department routinely provides links to related content provided by third parties and primary sources, and its provision of such links in the Election area is fully consistent with this practice.[33] AOL does not sell such links, but rather uses its news judgment to decide which news articles or proprietary sites would best expand the information available to AOL members and users.

The use of links to other pertinent stories, commentary, and primary sources are a critical and distinguishing feature of news coverage on the Internet and interactive computer services. Such links

are part of the new vocabulary of journalism[; they are] highlighted words in a text or in the margin [that] the reader can click on to shift to original documents, a critical commentary, audio or visual material, or a whole new subject. Because of links, reading on the Internet is never linear, unless that’s what the reader chooses.[34]

In other words, providing links to sites is already the online news industry standard.

Not surprisingly, then, the use of links is also central to coverage of election and political news online. Like AOL, other online news providers routinely offer direct links to a wide variety of sites in the course of their political coverage, including direct links to candidate campaign and political party web pages. For example, WashingtonPost.com, the online news division of the Washington Post, provides direct links to candidate web pages through its politics news channels. In addition, New York Times On The Web, the online news division of the New York Times, provides links from its politics section to various issue organizations and political-party web pages.[35]

4.  AOL Live

AOL Live is another program of the AOL news department. It provides a live programming format for AOL, similar to TV and radio talk shows. It is an open forum available to AOL members, similar in format to a talk show, where AOL members gather together to participate in live, interactive events with guests. Although AOL Live guests frequently include writers, musicians, artists, actors, filmmakers, athletes, journalists, and others not directly involved in politics, past guests on AOL Live have included well-known political figures such as House Speaker Gingrich, Colin Powell, Roy Romer, and President Bill Clinton. Pages in the Election area provide links to AOL Live to the extent that guests include political figures.

Most AOL Live events take place in an online "auditorium" which is literally a "virtual" auditorium. There are participants in the audience, an invited guest, and an AOL news department employee serving as host. Subscribers can engage in interactive exchanges with other subscribers and can also ask questions of the guest. Subscriber questions are forwarded to the on-line host, who exercises editorial control as to which questions are presented to the guest, and may in fact combine related general questions or clarify their point. In this regard, AOL Live is very similar to many community-forum talk shows already being broadcast on television and radio stations around the country.

AOL Live also has a television capacity, so AOL News staffers can interview newsmakers and make the video and audio stream available to AOL users over the Internet. While this is currently only a small portion of AOL’s news programming, it is expected that future technological advances will enable AOL to make greater use of this news service.

5.  Online Debates

The Election area provides a link for subscribers to access online political debates. These debates will be nearly identical to those currently broadcast by television stations around the country, but they will be "broadcast" via the Internet and AOL. Sponsored by AOL, these debates fully comply with all applicable FEC regulations.

6.  Online Polling and Surveys

The Election area provides subscribers with links to online polls and surveys related to political issues of the day as well as candidate-specific questions. AOL works with other providers of polling and survey information to create and/or report weekly polls and surveys. These polling areas are linked with AOL News or other online news content providers so that subscribers can review news stories related to various polling questions. These areas are also linked to interactive chat areas where subscribers can freely discuss the issues being polled with other AOL subscribers. In addition, the online polling areas are linked directly with other polling and survey providers, offering access to additional polling and survey data on a broad range of elections and issues.

7.  My Government

"My Government" is a separate topic area within the "Politics" section of AOL News, available both to AOL members and to the general public (without charge). AOL’s My Government section makes available information from elected officials relating to matters of public and legislative interest.

The idea behind My Government—providing a forum for elected officials to share important policy-related materials with their constituents—is not unique. Indeed, Roll Call, the Capitol Hill newspaper, maintains a web site that serves a very similar function.[36] By increasing the amount of information that is available to citizens from their elected representatives, by significantly easing the means by which it may be accessed, and by providing a direct link between public servants and the public, news organizations like AOL and Roll Call help to revitalize our democracy. In addition to expanding the breadth and depth of information to which anyone with a computer may be exposed, projects like My Government also minimize the filtering mechanism that often attends the transmission of such information.

8.  GovernmentGuide

On December 6, 1999, AOL launched "GovernmentGuide," a new site that organizes hundreds of government agencies and more than 4,000 government web sites in a clear, easily-searchable and intuitive directory for consumers. By combining a comprehensive guide to government web sites with new consumer-friendly features such as a one-stop complaint center, GovernmentGuide makes it simple for consumers to find and take advantage of the government resources, programs, and services that can improve their daily lives. America Online Chairman and CEO Steve Case considers this service yet another means of improving the relationship between citizens and their government:

There is a wealth of information and services provided by the government—the challenge for consumers is to find the resources they need. GovernmentGuide offers a powerful new tool for consumers to locate and make use of the thousands of government agencies, services, and resources available on the Internet. In addition, our new site will provide government agencies with important consumer feedback on how their services and communications could be improved.[37]

The NOI seeks comments on web sites created by individuals and other individual political activity conducted over the Internet.

AOL Services: In addition to the varied services and products described above, AOL offers its subscribers the ability to create their own web sites, personalize their home pages, and make "cyber yard signs." AOL subscribers also may participate in clubs, message boards, and chat rooms. None of these services are designed specifically for federal election related activity, but all could be used for such purposes. For example, an AOL subscriber may create a personal web site that includes pictures, tells about her job and family, describes her interests, and proclaims "Go Redskins" and "Jones for Senate."[38] She may also "put up" cyber yard signs stating "Jones2000" and form a club of candidate Jones supporters without Jones or AOL ever knowing of her efforts. And, she may make use of her e-mail, both at home and at work, to send messages to friends, including messages supporting a candidate or forwarding political commentary or candidate materials. A subscriber incurs no incremental fees or costs for taking advantage of any or all of these services—they are included in the $21.95 per month fee that an individual pays to be an AOL subscriber.

Independent Expenditures: Federal law provides that individuals making an independent expenditure must include a notice stating who paid for the communication and that the communication is not authorized by any candidate’s committee.[39] Additionally, once an individual has spent more than $250 on independent expenditures during a year, he or she must file a report with the FEC.[40]

Disclaimers: The Commission has stated that individuals who spend money to create web sites that expressly advocate the election or defeat of a federal candidate must include a disclaimer on the site stating who has paid for the web site and whether it is authorized by any candidate or committee.[41]

Volunteer Activities: Under existing FEC regulations, individuals may freely volunteer their time in support of federal candidates, but because corporate contributions to federal candidates are prohibited by law, individual volunteer activities at the office are regulated. Employees may make "occasional, isolated, or incidental use" of corporate office facilities (such as an office telephone for local calling) for their individual volunteer activities in connection with federal elections.[42] There is a qualified "safe harbor" to this rule that provides regardless of whether the activity is undertaken during or after normal working hours, the activity will automatically be considered "occasional, isolated, or incidental use" of corporate facilities if (1) the time spent by a volunteer on any activity does not exceed an hour per week or four hours per month and (2) no incremental costs are incurred.[43]

When an employee exceeds "occasional, isolated, or incidental use" or incurs incremental costs (such as long distance telephone calls), the corporation must be paid the "normal and usual" rental charge for the time (prevailing hourly or piece work rate charge) or goods (market price).[44]

Comments:

AOL urges the Commission to structure its regulations to allow maximum individual political activity on a personal and voluntary basis, regardless of whether the activity is done at home or in the individual’s workplace. AOL recommends the following four steps as a starting place to ensure individual political involvement on the Internet is as free of intrusive government regulation as possible: (1) clarify Advisory Opinion 1998-22 (Smith); (2) urge Congress to raise the $250 independent expenditure reporting threshold; (3) clarify that the volunteer holding in Advisory Opinion 1999-17 applies equally to volunteer activities that are not coordinated with a campaign committee; and (4) treat employee use of the Internet and e-mail the same as local telephone use in applying the "occasional, isolated, or incidental use" of corporate office facilities regulations.

First, AOL urges the Commission to clarify Advisory Opinion 1998-22. In this Opinion, the Commission concluded that Mr. Smith had created something of value under the federal election laws by establishing a web site that included a link to a candidate’s web site and advocated the defeat of that candidate’s opponent. Based on that conclusion, the FEC required the web site to (1) identify the costs associated with creating the web site, specifying that "overhead costs would include, for example, the fee to secure the registration of domain name, the amounts you invested in your hardware, and the utility costs to operate the site," and (2) contain the appropriate disclaimer stating who paid for the site and whether it is authorized by any candidate or committee.[45]

The Smith Advisory Opinion has caused confusion and concern, in part, because it is unclear whether it applies only to commercial entities (which Smith appeared to be) or to individuals acting in their personal capacity. Additionally, the FEC’s use of fixed, rather than incremental cost accounting appears in hindsight to be both unworkable and unjustified. Finally, the requirement of a formulaic disclaimer on individual, voluntary, communications through the Internet is not justified, and is not workable.

AOL’s specific concern with the Smith Advisory Opinion is the possibility that if an AOL subscriber who is independent of a candidate committee creates a home page (using AOL’s services at no additional charge to the subscriber) that contains express advocacy, that subscriber would have to include his or her name as the sponsor of the site, provide an adequate disclaimer that the site is not authorized by any candidate’s committee, and determine the costs of hardware, software, and Internet service. This regulatory structure for free expression by potentially millions of individuals, in a form that can take less than five minutes to create and has few if any incremental costs, is unwarranted and unrealistic. Moreover, if the portion of the expenses allotted to the web site exceeded $250 in one year’s time (likely under the Smith Opinion’s language), the individual would be required to submit reports to the FEC.[46] Such a result is untenable as it subjects unsuspecting individuals to a maze of FEC regulations and reporting requirements and would discourage all but the sophisticated political players from engaging in political activity over the Internet.

Such a result also fails to acknowledge the nature of an individual’s use of the Internet. An AOL subscriber’s use of the Internet is similar to an individual’s use of the telephone. Telephone users use the telephone for various purposes, sometimes to talk about the "big game"—sometimes to expressly advocate the election of a federal candidate. Despite the content of a caller’s speech, however, the monthly telephone bill by that caller (provided the calls do not result in additional long distance charges) and the cost of the phone is not reportable and the caller is not required to identify him or herself or proclaim whether or not his or her activities are authorized by a candidate’s committee. Likewise, AOL subscribers use the Internet for everything from following football scores, to buying products, to creating a home page or cyber yard sign that says, "Jones for President."

AOL recognizes the important policy considerations of requiring disclosure of sizable independent expenditures. AOL recommends, however, that the FEC adopt a more pragmatic approach to fulfilling those disclosure objectives with regard to individuals speaking through the Internet. The FEC’s existing regulations are primarily intended for well organized organizations such as political action committees, candidate campaign committees, political parties, and corporations. They are not intended to regulate millions of individuals who simply want to express themselves without spending any significant funds on their communications, much less on legal compliance.

Therefore, in conjunction with clarifying Advisory Opinion 1998-22, AOL urges the Commission to establish a broad safe harbor for individuals who use e-mail or create a web site (or conduct similar activity such as making virtual yard signs) for personal political speech. Finally, as an integral part of this recommendation, AOL recommends that the Commission clarify that only the additional costs of a political communication should be identified as costs for FEC expenditure measuring purposes, and not the fixed underlying costs such as an individual’s existing utility, hardware, software, and Internet access and service costs.

Second, AOL urges the Commission to recommend to Congress that the $250 independent expenditure reporting threshold be raised regardless of the medium through which the funds were spent. Imposing reporting requirements on such a low level of involvement burdens a great deal of individual political activity. The $250 threshold is not narrowly tailored to serve the compelling interest in stemming corruption or its appearance and is woefully outdated due to inflation.[47] Individuals who wish to express themselves anonymously or who do not know how to comply with federal election law requirements are severely burdened by such a low threshold amount. Accordingly, AOL believes that the across the board threshold amount should be raised to at least $1,000, and urges the FEC to include such a change in its periodic recommendations to Congress.

Third, in Advisory Opinion 1999-17, the Commission held that the use of e-mail by a campaign volunteer using his or her home equipment would never be considered a campaign contribution. AOL urges the Commission to clarify that that rationale for this conclusion is equally applicable to non-campaign volunteers, either because they are "voluntarily" assisting a candidate, or because there are few if any incremental costs.

Finally, AOL urges the Commission to treat corporate employee use of the Internet and e-mail the same as local telephone use in applying the "occasional, isolated, or incidental use" of corporate office facilities regulations. As described above, a corporation incurs no incremental costs for an employee’s occasional use of the Internet and/or e-mail to conduct personal volunteer activity.

B.  Hyperlinks

The NOI observes that some web sites contain hyperlinks to a candidate’s or political committee’s site. It asks under what circumstances the posting of a hyperlink should be treated as a contribution or independent expenditure and whether the express advocacy test should be applied to the text of the hyperlink itself, or to the contents of the candidate’s site?

Background:

The "World Wide Web" utilizes a "hypertext" formatting or markup language ("HTML"). HTML documents can contain text, images, sound, moving video, and animation. "Any HTML document can include links to other types of information or resources available on the Internet,"[48] and by "clicking" on the link you can be immediately connected to the information or resource itself. Such ‘hyperlinks’ are critical to navigating on the Internet as they "allow information to be accessed and organized in very flexible ways, and allow people to locate and efficiently view related information."[49]

The use of links is absolutely fundamental to the new electronic media that AOL represents, and it constitutes much of its revolutionary information-providing potential. As the Supreme Court noted in Reno v. ACLU,[50] the Internet is premised on the use of links, making the Internet "comparable . . . to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services."[51] Links make topical information more accessible and easier to find because they allow users to move immediately to content that might be of interest without having to go through laborious searches or memorizing potentially relevant World Wide Web addresses.

Comments:

1.  Placing a Dollar Value on a Hyperlink

The Commission should avoid any rules that would inhibit the placement of free hyperlinks to a candidate and/or political committee. The Commission’s recent Opinions to the Bush Campaign,[52] Election Zone,[53] and the Democracy Network ("DNet")[54] have been positive developments in ensuring the efficiency of the Internet by permitting web sites to link to candidate web pages without considering the link to be a "contribution."[55] The Bush Advisory Opinion in particular established a useful guideline in determining whether providing a link to a campaign constituted a contribution. It asked whether "the owner of the web page providing the link would normally charge for the providing of such a link."[56] Thus, under the Bush Opinion, only if a web site normally charged for the placement of similar links—but in a particular instance chose to charge less than the normal amount (or nothing at all)—would the existence of a link be treated as a contribution or independent expenditure.

Despite the favorable precedents and guidance provided by these recent Opinions, the Commission did not specifically overrule the Leo Smith Opinion[57] and the Tweezerman MUR[58] precedent. As described above, in Advisory Opinion 1998-22 (Smith), the Commission concluded that Mr. Smith had created something of value under the federal election laws by establishing a web site that created a link to a candidate’s web site and advocated the defeat of that candidate’s opponent. In the Tweezerman enforcement action, the Commission held that the existence of a link from a corporation to a candidate was an impermissible contribution by the corporation to the candidate’s campaign and collected a $16,000 civil penalty for the transgression.[59] To mitigate the confusion arising from these earlier actions, the Commission should further clarify that the free posting of a hyperlink to a candidate’s and/or political committee’s site should not be treated as a contribution or independent expenditure unless the web site generally such charges entities for such a link in similar circumstances.

Thus, if the owner of a site generally utilizes links to multiple candidates, on a nonpartisan basis, at no charge to a candidate, there is no value (and thus no contribution or independent expenditure) if the owner posts a free link to a specific candidate—regardless of the owner’s policy toward charging commercial entities or other non-candidate organizations for links. Equally, if a web site never charges for links, under any circumstances, there is no "contribution" if it utilizes a link to some but not all candidates. By contrast, if the owner sells hyperlinks to candidates, the owner’s posting of hyperlinks to candidates has value. Further application of this principle requires that if an owner generally utilizes hyperlinks to candidates for no charge, but typically charges candidates for banner ads—the hyperlinks have no value, but the banner ads do.

2.  Express advocacy

As the Commission recognized in the Democracy Net Advisory Opinion,[60] the express advocacy test should not be applied to the organization posting the hyperlink if neutrally provided and not coordinated or controlled by the campaign—regardless of whether the link or the contents of the candidate’s or political committee’s site contain express advocacy. In DNet, the Commission recognized that "even if the statements of the candidates and their endorsers or the contents of the candidate web sites to which DNet has hyperlinks would be in connection with a Federal election, the DNet web site may be permissible under th[e ‘nonpartisan activity designed to encourage individuals to vote or to register to vote’] exception."[61] This same reasoning should be extended to all neutrally provided hyperlinks. Thus, links to federal candidates should be able to use the name of the campaign committee ("Jones2000"; "Jones for Senate") without the use of those names being considered express advocacy, or the contents of the candidate’s speech being attributable to the linking organization.

This policy is in keeping with federal election law practices in other media. For example, a candidate, appearing on a Sunday morning political talk show, may look into a camera and ask the audience, "Please visit my web site at ‘www.Jones2000.com’ for more information, and vote for me to be the next president." The web site address and the request for the viewer’s vote may be express advocacy, but the advocacy is by the candidate, not by the talk show or television station.

C.  Media Exemption

Surveys show that more and more people are turning to the Internet as their primary source of news. AOL is the number one destination for news online, reaching nearly 50 percent of its membership each month.[62] It enables its members to share in history as it’s being made, experiencing breaking news from around the world, including events such as elections and major political announcements. AOL has pioneered tools that help citizens to express their views, take more control of the political process, and make more informed decisions at the voting booth.

As detailed above, AOL has a proven commitment to providing news coverage and interactive tools to further democratic engagement, has received press "credentials" at political and news events,[63] and has been recognized by the United State Senate Select Committee on Ethics as "an online publisher of news."[64] In spite of AOL’s press activities and acknowledged press status, however, the FEC has not yet made it clear that AOL qualifies for the media exemption because it is not associated with a traditional print or broadcast media partner.[65]

AOL seeks a federal election law system that treats AOL in the same manner for FEC purposes as other news providers, whether it be the Washington Post or its online news division, WashingtonPost.com. The continued experimentation, innovation, and growth of the Internet as a tool to enhance democratic participation depends in large measure on AOL being as free as any other press entity to provide political and candidate information without fear of having such coverage being deemed an illegal campaign contribution or expenditure. In short, only a system that does not discriminate against online news providers will allow AOL to continue its efforts in ensuring that the online medium fulfills its promise as a significant and unique source of political and public affairs content.

The news exemption "was intended to apply to election related communications by a broadcaster, newspaper, or other form of recognized public media."[66] In past decisions, the FEC has deemed this element of the exemption satisfied not only when the organization in question is a "recognized" press entity, but also when it is "acting as a press entity in performing the media activity."[67] Applying this analysis, the FEC has already determined that the news exemption extends to an online news and information service[68] and to cable television broadcasters.[69]

The Commission’s regulations currently provide that "[a]ny cost incurred in covering or carrying a news story, commentary, or editorial by any broadcasting station, newspaper, magazine, or other periodical publication is not an expenditure";[70] and does not constitute a "contribution" for purposes of FECA.[71] Thus, in accordance with the Act and the implementing regulations, in order for an entity to qualify for the news exemption, its activities must be done in connection with (1) a news story, editorial, or commentary (2) that is distributed through the facilities (3) of a qualified press entity.[72]

In Advisory Opinion 1996-16, the Commission applied this criteria to a proposal for the production and broadcast of "Electronic Town Meetings," coordinated by Bloomberg, L.P. Bloomberg proposed to invite presidential candidates to appear in a television studio and respond to questions both from a live television audience and from others linked to the program via electronic mail. The one-hour program would then be broadcast by other news organizations.

The Commission concluded that this proposal fell within the press exception for a number of reasons. First, it recognized that Bloomberg was a press entity not owned by a political party or candidate. Second, it concluded that Bloomberg "acts as a news and commentary provider via computer linkage, performing a newspaper or periodical function for computer users" and noted Bloomberg’s presence in other media ("Bloomberg Information TV, Bloomberg Information Radio, and Bloomberg Business News). Finally, the Commission concluded that Bloomberg was acting as a press entity in covering this event.

The FEC should apply its criteria without discriminating in favor of existing news media companies that then establish Internet news services (e.g., CNN.com and WashingtonPost.com) at the expense of news services that are created specifically for this new medium (e.g., the AOL News Division and Microsoft’s Slate Magazine). Prior ownership of a broadcast, printed or wire vehicle for the distribution of news simply cannot be a precondition for utilizing the press exemption on the Internet. Such a precondition would discriminate against the Internet as a legitimate vehicle for the provision of news. Rather, any entity that "acts as a news and commentary provider via computer linkages, performing a newspaper or periodical publication function for computer users"[73] should be considered a qualified press entity under the relevant statutory and regulatory exemptions.

Because an underlying purpose of the press exemption is to prevent the FEC from inhibiting the media’s ability to comment on politics and to protect the media’s use of its existing and usual capabilities,[74] a press entity satisfies the "facilities" element of the test when it uses its routine means of distribution and publication.[75] Accordingly, whether a site owner also produces a broadcast or print publication is irrelevant to whether a web site qualifies for the media exemption. AOL acknowledges that it may not be a simple task to define all Internet-based news providers. However, whatever definition is adopted should, at an absolute minimum, include a news organization such as AOL’s, with regular features, multiple departments, editorial functions, and "press entity" credentials.

D.  Online Conversations

The Commission asks whether there are circumstances under which the sponsor of a "chat room" should be responsible for statements made by persons participating in the discussion.

Background:

Section 230(c) of the Communications Decency Act of 1996 provides a safe harbor for online service providers by immunizing them from liability for information originating from third parties.[76] Thus, Zeran v. America Online held that "[b]y its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service."[77] Zeran had sued AOL under a negligence theory for its delay in removing defamatory messages from its service after repeated complaints.[78] The court found

Congress’ purpose in providing the § 230 immunity [is] evident. Interactive computer services have millions of users. The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.[79]

Based on these findings, the Zeran court found that Section 230 protected AOL against not only defamation claims, but also against Zeran’s negligence claim. The negligence claim necessarily depended on AOL being responsible for the underlying defamatory statements, and Section 230 exempted AOL from such responsibility. Additionally, the court rejected Zeran’s argument that Section 230 eliminates only "publisher liability" but not "distributor liability," finding that the statute protected service providers sued under either theory.[80]

The finding that distribution liability did not extend to AOL was important because a distributor, like a bookstore or a library, can be liable if "it is proven at a minimum that [it has] actual knowledge of the defamatory statements upon which liability is predicated."[81] Therefore,

[i]f computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement – from any party, concerning any message. Each notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information’s defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information. Although this might be feasible for the traditional print publisher, the sheer number of postings on interactive computer services would create an impossible burden in the Internet context.[82]

Additionally, such liability would allow anyone displeased with something contained on the provider’s system to "simply ‘notify’ the relevant service provider, claiming the information to be legally defamatory. In light of the vast amount of speech communicated through interactive computer services, these notices could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability."[83] In Advisory Opinions 1999-25 and 1999-17, the Commission reached similar results under the federal election laws.

With regard to chat rooms and similar venues that allow for people to express themselves in multilateral conversations online, AOL urges the Commission to follow the spirit and letter of Section 230(c)’s[84] provision of immunity for organizers of such forums.[85] The Commission may start this process by simply codifying the rationale used in Advisory Opinion 1999-25. In this Opinion, DNet proposed various opportunities for individuals to communicate with candidates, public officials, and each other. The Commission found that DNet, the sponsor of these forums, is not responsible for statements made by its participants, stating: "DNet will function in such a way that none of the statements made by candidates or persons supporting the candidates can be imputed to DNet."

The FEC expressed a similar theory of not making an entity responsible for speech or conduct that it does not control in Advisory Opinion 1999-17. There, the FEC concluded that a campaign committee could benefit from the on-line political activities of campaign volunteers without having to report or "police" these activities as campaign contributions, as long as the committee does not control those activities. The same analysis should apply for the sponsors of chat rooms. Thus, any new regulations should make clear that chat room sponsors are not responsible for statements made by independent participants.

AOL applauds the Commission’s inquiry into the dynamic intersection of politics and the Internet. The Internet is transforming the everyday lives of people. Through the Internet an individual can sit in a small Virginia town and almost instantaneously read the same day newspaper from Australia, order a sweater for next day delivery from Ireland, and find information about the most obscure Pacific islands. The Internet is also transforming American democracy. Through the Internet a citizen can learn how and where to register to vote, about a candidate for mayor or the United States President, and how to become involved with candidates and/or issue campaigns. And, this is just the beginning. Web sites, including AOL’s, now allow users to instantly compare candidate positions on issues, send e-mails to candidates about issues important to them, participate in live online discussions with candidates, and share ideas and positions with people around the country (and world) in chat room conversations. In short, the Internet holds the possibility of empowering every citizen to becoming a meaningful participant in democracy.

The FEC, therefore, has wisely chosen to gather information through this Notice of Inquiry to guide its deliberations in how to maintain the integrity of the federal election laws without burdening this new medium’s potential in unnecessary or unintentional ways. To that end, AOL urges the Commission to create an understandable and unambiguous legal framework that unleashes the promise of the Internet, provides a large safe harbor for individual political activity, recognizes legitimate online press entities, and allows maximum freedom for all individuals and organizations to participate in political and democratic activities via the Internet. AOL appreciates the opportunity to comment on these important matters and stands ready to assist the Commission as it directs.

Footnotes

[1]  64 Fed. Reg. 60,360 (1999).

[2]  Karl Sandstrom, . . . And the Internet, The Washington Post, Sept. 5, 1999, at B7, available at 1999 WL 23301858 [hereinafter Sandstrom].

[3]  David M. Mason, Anonymity and the Internet:  Constitutional Issues in Campaign Finance Regulation, Practicing Law Institute, Corporate Law and Practice Course Handbook Series at 18 (Sept. 1999).

[4]  521 U.S. 844 (1997).

[5]  Id. at 868.

[6]  Id.

[7]  Id. at 868-69.

[8]  Id. at 869.

[9]  Id. at 870.

[10]  Id.

[11] Id.; see also ACLU v. Reno, 929 F. Supp. 824, 881-82 (E.D. Pa. 1996) (urging caution in regulating the Internet because “[a]ny content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig”).

[12]  Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, codified at 47 U.S.C. § 230(b) (emphasis added); Telecommunications Act of 1996 § 706 (directing FCC to remove regulatory barriers that discourage the development of advanced telecommunications capability, including Internet access); see generally Digital Tornado: The Internet and Telecommunications Policy, OPP Working Paper Series, at ii (March 1997) (“In passing the 1996 Act, Congress expressed its intent to implement a ‘pro-competitive deregulatory national communications policy.’”) [hereinafter Digital Tornado].

[13]  Digital Tornado, supra note 12, at i.

[14]  Computer, Internet Use Up Among Americans (Oct. 15, 1999) <http://cyberatlas.internet.com/big_picture/demographics/article/0,1323,5901_218471,00.html>.

[15]  See Sharon Machlis, U.S. to have 133M Internet users next year (July 8, 1999) <http://cnn.com/TECH/computing/9907/08/netusers.idg>; see also Internet Population in 2000 (Dec. 28, 1998) <http://cyberatlas.internet.com/big_picture/demographics/article/0,1323,5911_150401,00.html> (projecting 132.3 in 2000).

[16]  In 1998, U.S. daily newspaper circulation was nearly 70 million.  1999 E&P Year Book Finds Daily Circulation Continues to Drop (published April 27, 1999) <http://archives.mediainfo.com>.

[17]  Advisory Opinion 1999-7.

[18]  Advisory Opinion 1999-25.

[19]  Advisory Opinion 1999-24.

[20]  Advisory Opinion 1999-17.

[21]  Sandstrom, supra note 2, at B7.

[22]  Steve Case, Remarks at the Journalism and the Internet Freedom Forum (visited Jan. 7, 2000) <http://www.freedomforum.org/asne/commentary/case.htm>.

[23]  ACLU, 929 F. Supp. at 842.

[24]  Media Metrix, WWW/Online at Home Report (September 1999).

[25]  See Thomas E. Weber & Rebecca Quick, Starr Report Clicks on Web, but With How Many?, Wall St. J., Sept. 15, 1998, at A3.

[26]  See id.

[27]  Bart Ziegler, et al., A Wildfire Transforms the Global Village, Wall St. J., Sept. 14, 1998, at B1.

[28]  Id.

[29]  Cheryl Arvidson, Is online journalism “different”?  A wide divergence of views (Jan. 9, 1998) <http://www.freedomforum.org/technology/1998/1/9conffinal.asp>, available in Bus. Wire 11:41:00.

[30]  America Online Press Release, AOL News Channel is the Number One Destination in Cyberspace for General News (Sept. 8, 1998) <http://biz.yahoo.com/bw/980908/america_on_ 2.html>.

[31]  Case remarks, supra note 22.

[32]  AOL will link to this election guide from the news sections of each of its relevant brands.  The AOL sites planning to link to the election guide include the AOL service, AOL.com, Netscape’s Netcenter, and CompuServe.

[33]  Examples of previous AOL News links have included linking to:  pro-choice and pro-life group web sites during the national debate on partial-birth abortion; NASA during space shuttle missions; and the Red Cross online donation page during natural disasters.

[34]  Morning Edition: Internet Impacts News Media (NPR radio broadcast, July 20, 1998), available at 1998 WL 3308077.

[35]  The provision of links to candidate-campaign web sites is a dynamic new area.  Only three years ago, virtually no online information providers were including candidate links in their materials.  Today, links are being provided by not only news organizations, as noted above, but by non-news organizations such as the Democracy Network <http:www.dnet.org>.  AOL provides the links solely on a non-partisan basis and as part of its news function:  making additional news and information about the subject on which it is reporting available to its members and users.

[36]  Roll Call’s web site, Roll Call Online <http:www.rollcall.com>, has a specific section called Policy Briefings <http:www.rollcall.com/policybr/policybr.html> in which submissions by elected officials are posted for the public.

[37]  America Online Press Release, AOL Launches Government Guide, Comprehensive Online Guide to Government Resources and Benefits (Dec. 6, 1998) <http://media.web.aol.com/media/pre…rnment%20Resouces%20and%20Benefits>.

[38]  To see how to create a personal home page and to see examples of actual home pages, visit the AOL Hometown site (visited Jan. 7, 2000):  <http://hometown.aol.com/cat.adp?cid=11208&l=english&sessionId=945277020%2e5477>.

[39]  2 U.S.C. § 441d; 11 C.F.R. § 110.11 (1999).

[40]  2 U.S.C. §§ 431(17), 434(c), 441a(a)(7)(B); 11 C.F.R. §§ 109.1, .109.2 (1999).

[41]  Advisory Opinion 1998-22.

[42]  11 C.F.R. § 114.9(a)(1) (1999).  “Occasional, isolated, or incidental use” of corporate facilities means that volunteer activity which does not prevent the employees from completing their normal work load.  Id.

[43]  Id. § 114.9(a)(iii).

[44]  Id. § 114.9(a)(2).

[45]  Advisory Opinion 1998-22.

[46]  See 2 U.S.C. §§ 431(17), 434(c) (1999).

[47]  The $250 threshold in 1976 is now worth only $75.50; an equivalent amount in purchasing power today would be $826.50.  See Shrink Missouri Government PAC v. Adams, 161 F.3d 519, 523 n.4 (8th Cir. 1998) (court noting that $1,075 in 1976 dollars is the equivalent of just $378 in purchasing power today).

[48]  ACLU, 929 F. Supp. at 836.

[49]  Id.

[50]  521 U.S. 844 (1997).

[51]  Id. at 853.

[52]  Advisory Opinion 1999-17.

[53]  Advisory Opinion 1999-24.

[54]  Advisory Opinion 1999-25.

[55]  Because of these opinions, an interested voter may click on to a site such as DNet and immediately begin accessing candidate information with the click of his or her mouse.  Without worrying about knowing a candidate’s Uniform Resource Locator (“URL”) (or even knowing what a URL is), a voter may instantly compare candidate backgrounds and issue positions.

[56]  Advisory Opinion 1999-17.

[57]  Advisory Opinion 1998-22.

[58]  Enforcement Matter Under Review 4340.

[59]  Id.

[60]  Advisory Opinion 1999-25.

[61]  Id.

[62]  As two Internet writers explain, AOL’s status as the number one online news destination is remarkable considering AOL is an Internet-only entity and therefore can’t “piggyback” on a more traditional news medium:

Most news organizations have created an online presence to be an extension of their main outlet, whether television or newspaper.  And they have a huge advantage over new Internet-based competition, loads of content ready to post to the Web and a steady revenue stream from their other outlets.

. . . .

. . .  Among the main sources of competition are other news outlets that already established off the Web:  ABC, CNN, MSNBC, and almost every other newspaper in the country. . . .  On the Web, all of these news outlets have an even playing field, access to the same audience, the ability to match the technology of competitors, and the ability to overcome the restrictions of their original media.

Daniel Bennett & Pam Fielding, The Net Effect, at 71-73 (1999) (emphasis added) [hereinafter The Net Effect].

[63]  For example, in 1996 AOL received press credentials for the Republican and Democratic conventions.  These privileges allowed AOL employees to access the convention centers, interview party officials, candidates, and delegates, and bring the convention story to a national audience.  This convention story included posting and “airing” the interviews, hosting chats, delivering political news, and posting personal daily journals submitted by delegates.  See The Net Effect, supra note 53 at 52, 55.

[64]  Letter from Victor Baird, Staff Director and Chief Counsel, Senate Ethics Committee, to Jill Lesser, Vice President, Domestic Public Policy, AOL (Oct. 14, 1999).  The letter describes AOL’s news coverage as follows:

AOL does appear to resemble in its form a conventional news gathering organization in that AOL has a distinct news staff, and news section (with subsections).  It also appears that in its operations AOL appears to be similar to a conventional news outlet where . . . Members, whether solicited or unsolicited, can forward submissions and the news outlet decides in its own right what to edit and whether or not to publish them . . . .  Thus, it appears that AOL, acting like other news outlets, is attempting to fulfill its responsibility as an online publisher of news, including information concerning public policy.

Id. at 3 (see Attachment 2).

[65]  The Commission has already found the news exemption applicable to an on-line information provider (Bloomberg) in Advisory Opinion 1996-16.  As discussed more fully below, however, the Commission noted that Bloomberg already performed press functions in other media prior to introducing its Internet news service. See also 64 Fed. Reg. at 60,365 (1999) (to be codified at 11 C.F.R. pt. 100), available at 1999 WL 999075 (requesting comments on how the “news story exemption” should be applied to the Internet and asking questions such as whether it makes a difference if the site owner also produces a broadcast or print publication and whether a site should be treated as a periodical publication if the owner regularly updates the site).

[66]  Advisory Opinion 1980-90; see also Advisory Opinion 1999-17 (The Commission explained that the legislative history of the press exemption demonstrates Congress’ intention “to preserve the traditional role of the press with respect to campaigns:  . . . .  ‘Thus, [the exemption] assures the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns.’”) (quoting H.R. Rep. No. 93-1239, 93d Cong., 2d Sess. at 4 (1974)).

[67]  Advisory Opinion 1996-16 (citing FEC Advisory Opinion 1982-44).

[68]  Id.

[69]  Enforcement Matter Under Review 3657 (acknowledging that cable providers were “facilities” within the meaning of the press exemption); see also FEC v. Multimedia Cablevision, Inc., No. 94-1520-MLB (D. Kan. 1995) (upholding the FEC’s conclusions).  The FEC ultimately voted to close the matter before the Tenth Circuit Court of Appeals ruled on Multimedia’s appeal, causing the appellate court to vacate the district court decision as moot.

[70]  11 C.F.R. § 100.8(b)(2) (1999).

[71]  Id. § 100.7(b)(2).

[72]  See Advisory Opinion 1996-16.

[73]  Advisory Opinion 1996-16.

[74]  See, e.g., Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 668 (1990) (citing the exemption’s legislative history, which describes the statute as “assur[ing] the unfettered right of the . . . media to cover and comment on political campaigns”).

[75]  See Reader’s Digest Ass’n v. FEC, 509 F. Supp. 1210, 1214 (S.D.N.Y. 1981) (noting that the press exemption exempts “those kinds of distributions that fall broadly within the press entity’s legitimate press function”).

[76]  Section 230(c)(1) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c)(1). 

[77]  Zeran v. America Online, 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998).

[78]  Id. at 328-29.

[79]  Id. at 331 (internal citations omitted).

[80]  Id. at 332. 

[81]  Id. at 331.

[82]  Id. at 333.

[83]  Id.

[84]  47 U.S.C. § 230(c) (1999).

[85]  Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998); see also Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998); Aquino v. Electriciti, Inc., 26 Media L. Rep. (BNA) 1032 (Cal. Super. Ct. 1997); Doe v. America Online, Inc., 718 So. 2d 385 (4^th Fla. Dist. Ct. App. 1998), review granted, 729 So. 2d 390 (Fla. Apr. 12, 1999); Lunney v. Prodigy Serv. Co., 683 N.Y.S.2d 557 (N.Y. App. Div. 2d Dep’t 1998).