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FC: IRS should not control what nonprofits do online --comments
From: Declan McCullagh <declan () well com>
Date: Tue, 13 Feb 2001 20:15:22 -0500
The deadline for comments was today. Below are real comments from a real
nonprofit organization that feared retribution from the IRS. Background:
Speaking of the IRS, some folks are in a tizzy over this today:
TO: United States Internal Revenue Service
FROM: A Concerned Non-Profit Organization
RE: Response to "Request for Comments Regarding Need for
Guidance Clarifying Application of Internal Revenue Code to Use of the
Internet by Exempt Organizations"
Date: February 13, 2001
In response to the "Request for Comment" contained in Announcement
2000-84, we would like to offer guidance and clarity on selected matters
addressed therein. Our answers are provided below. It is our hope that
the Service will consider our responses as it examines, with thoughtful
and informed reflection, all of the implications of crafting a new policy
for Internet usage by charitable organizations.
To what extent are statements made by subscribers to a forum, such as a
listserv or newsgroup, attributable to the exempt organization that
maintains the forum? Does attribution vary depending on the level of
participation of the exempt organization in maintaining the forum?
One of the unique and beneficial services provided by exempt organizations
online is an environment where subscribers and the public can freely
express themselves. Listservs, newsgroups, and message boards provide
free speaking zones where people can exercise their First Amendment rights
without worry of political persecution or other harassment. It would be
unconscionable and unconstitutional for government to restrict the
exercise of free speech by attributing to the host organization statements
made by the public in these free speaking zones.
This is true for two reasons: first, free speech is necessary for a free
society and second, the proposed regulations would place an unreasonable
censorship burden on non-profits.
The Web is, by nature, interconnected, open, and pseudonymous. Because of
interconnectivity, charitable sites might unknowingly link to partisan
political sites. Because of openness, anyone can join discussion or chat
areas and that could lead to unintended calls to political action.
Pseudonymity makes the source of these calls difficult to identify.
Forcing exempt organizations to take responsibility for the acts of
third-party subscribers and the public at large would be to ask them to
institute a policy of censorship so broad that it would lead the
organization to either forego all links or to spend an inordinate amount
of time policing links. This would hamper, if not entirely quash, web
development for this sector.
Think tanks, educational, and religious organizations routinely host
events and forums where citizens can freely voice opinions and engage in
discourse that the organization may neither encourage nor endorse.
Attributing those utterances to the host organization would be tantamount
to attributing the views of ordinary citizens to the local telephone
company, or implicating a television cable company because of views
expressed on public-access programs. Further, imputing partisanship to
host organizations would result in a dramatic decline in expressions of
free speech because organizations would fear that some unrestrained
attendee may make statements putting their status in jeopardy.
Exempt organizations often provide the only avenue for unpopular or
different viewpoints. In their absence, government could not provide an
equally objective environment for the discussion of such viewpoints.
Political and Lobbying
For charitable organizations that have not made an election under section
501(h), what facts and circumstances are relevant in determining whether
lobbying communications made on the Internet are a substantial part of the
For this question, we urge considering technological neutrality and its
benefits. Lobbying communications made in Internet space, pursuant to an
election under 501(h), are indistinguishable from the same speech made in
open air. The frequency and the duration of that speech, or alternatively
the byte size of the same speech made in Internet space, could be factors
in determining whether it constitutes a substantial part of the
Therefore, a principle factor for determining the substantiality of such
communications requires a mere exercise in mathematical conversion rather
than fashioning a new regulatory construct for identical communications
made in Internet space. The most reasonable course of action would be to
avoid technology bias and abstain from fashioning alternative versions of
existing rules in applying them to the exercise of free speech in Net
space on host exempt organizations' web sites.
For these and other reasons, the IRS should abstain from promulgating any
new rules or attempting to fashion alternative versions of existing rules
in applying them to the exercise of free speech on exempt organizations'
web sites. Thank-you for the opportunity to comment on these issues.
This communication reflects the close and personally held opinions of its
authors and not those of the non-profit organization. Furthermore this is
not intended to advance the interests of any specific party, but rather to
illuminate key factors for consideration of each enumerated matter.
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- FC: IRS should not control what nonprofits do online --comments Declan McCullagh (Feb 14)