Topics: Social Media

Cause of Action asks court to stop FTC abuse of FOIA fee waiver authority

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Beltway Confidential,Opinion,Mark Tapscott,Morning Examiner,FTC,Cause of Action,First Amendment,Social Media,FOIA

How do the federal courts define who is a legitimate "representative of the news media"? According to the United States Court of Appeals for the District of Columbia, that's "any person or organization which regularly publishes or disseminates information to the public."

But does a nonprofit watchdog group that advocates and litigates on behalf of the public's right to know what the government is doing also qualify as a representative of the news media?

That's the issue at the heart of yet another federal legal case that sheds disturbing new light on how things are in "the most transparent administration in history."

Not so transparent FTC

The Federal Trade Commission is like all other federal departments and agencies subject to the Freedom of Information Act in having great discretion in how it administers that law.

That discretion, however, creates countless opportunities for federal bureaucrats to use the law to conceal abuses such as bias in its administration.

Cause of Action ran into such bias two years ago when the FTC denied its request for a fee waiver as a news media representative on the watchdog group's FOIA for documents on the agency's policy regarding social media and blogger advertising.

FTC screwed up

In an appeal filed Monday in the D.C. appeals court, Cause of Action argued that the FTC got it completely wrong because the courts ruled in 2003 that the Electronic Privacy Information Center, another nonprofit government watchdog, qualified as a news representative.

Cause of Action also noted in its Monday filing that the Open Government Act of 2007 mandated that federal agencies and courts include "alternative media" as representatives of the news media.

It would appear that a nonprofit watchdog group like Cause of Action or EPIC would qualify under the 2007 law, but federal courts have yet to decide that question. That means the Cause of Action appeal represents "issues of first impression."

Why it matters

Four years ago, the FTC claimed authority to regulate advertising on social media and blogger sites via its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."

Cause of Action obtained evidence in 2011 that the FTC was "unfairly and inequitably enforcing the Guides based on requestors' political views, and infringing free speech rights."

In other words, the FTC was using the FOIA to conceal its illegal bias in regulating commercial speech on social media and blogs.

Keep an eye on this case because nobody wants federal bureaucrats deciding what is permissible speech and what isn't on the Internet.

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