FTC regulates our speech

The Federal Trade Commission just released rules to regulate product endorsements not just in advertisements but also on blogs. (PDF here; the regs don’t start until page 55.)

It is a monument to unintended consequence, hidden dangers, and dangerous assumptions.

Mind you, I hate one of its apparent targets: Pay Per Post and its ilk, which attempt to co-opt the voice of bloggers. But I hate government regulation of speech more.

And mind you, I am all in favor of transparency; I disclose to a comic fault here. I think that openness is the best fix for questions of trust and advise companies and politicians and certainly governments to become transparent by default as enlightened self-interest. But mandating this for anyone who dares speak online? Foolish.

There are so many bad assumptions inherent in the FTC’s rules.

First, Pay Per Post et al, as I realized late to the game, are not aimed at fooling consumers. Who would read the boring, sycophantic drivel its people write? No, they are aimed at fooling Google and its algorithms. It’s human spam. And it’s Google’s job to regulate that.

Second, the FTC assumes – as media people do – that the internet is a medium. It’s not. It’s a place where people talk. Most people who blog, as Pew found in a survey a few years ago, don’t think they are doing anything remotely connected to journalism. I imagine that virtually no one on Facebook thinks they’re making media. They’re connecting. They’re talking. So for the FTC to go after bloggers and social media – as they explicitly do – is the same as sending a government goon into Denny’s to listen to the conversations in the corner booth and demand that you disclose that your Uncle Vinnie owns the pizzeria whose product you just endorsed.

Insanity and inanity. And danger.

The regulations raise no end of questions. For example: How much do I have disclose? Before I say anything nice about anyone, do I need to list every advertiser I’ve ever had? Every possible business relationship? You think my disclosures are comical now, just wait.

And what about automated ads, such as those from Google? I have been writing nice things about my treatment at Sloan Kettering. This has caused ads to come up on my blog, via Google, from the hospital. Presuming someone clicked on them, I’ve made money from the hospital. Does that taint what I say or me if I don’t disclose the payment? That’s the level of absurdity this can reach.

The regulations are not aimed just as bloggers, of course, but at endorsements of all sorts, including from celebrities and experts. The FTC requires advertisers to continually reconfirm that endorsers are bona fide users of the endorsed product. Do we really believe that Tiger Woods drives a Buick? How will that be policed?

The FTC also concedes that it treats critics at publications differently – less stringently – than bloggers. Don’t they realize that people on travel and gadget and food publications get freebies all the time. I’ve long believed that ethics alone should compel them to disclose. But the FTC doesn’t.

I love this one: The FTC now forbids media advertisers from changing a critic’s opinion in a blurb. Ha! That happened to me constantly when I was a critic. (“Colossal piece of crap” became “Colossal! – Jeff Jarvis, People”.) I even wrote a column in People complaining about an “NBC pinhead” doing this. A few weeks later, my colleague on the launch of Entertainment Weekly, went to Burbank for a business meeting with the network with an exec who identified himself as that pinhead.

Note, by the way, that when I did cover entertainment in Time Inc., conflict came not only from advertisers (Hallmark pulled all its advertising after I dared give Hall of Fame
treacle the reviews it deserved) but also from within the company (the head of HBO wanted me fired and the editors of Time Inc. tried to change my opinions). How the hell could that be regulated? Only by my fighting back, it turned out.

And there is the greatest myth embedded within the FTC’s rules: that the government can and should sanitize the internet for our protection. The internet is the world and the world is messy and I don’t want anyone – not the government, not a newspaper editor – to clean it up for me, for I fear what will go out in the garbage: namely, my rights.

What I now truly dread is that the FTC is holding hearings about journalism on Dec. 1 and 2. As Star-Ledger editor Jim Willse (full disclosure: he hired me a few times) said in my Guardian podcast last month (full disclosure: I work for the Guardian): the words, “we’re from the government, we’re here to help,” should be met with trepidation.

: See also Reason’s take. More comments from others coming soon.

Dan Gillmor sees full employment for First Amendment attorneys.

Steve Garfield’s disclosure is longer than his post. Fit that in Twitter.

Andrew Keen says the regs should include “bent reviewers on Amazon.” Damn, Keen and I are agreeing too much these days.

FTC guy tells blogger to return books after a review. These people have no clue as to reality. Publishers don’t want them back.

Here’s Fortune on the story.

Here‘s the Guardian’s Bobbie Johnson, unsure about the regs. And here‘s Daniel Tunkelang, also debating with himself.

Techdirt points out more absurdities.

Jack Shafer calls the rules the FTC’s mad power grab.

  • earlwallace

    Jeff,

    This article scares me. The FTCi s another Government agency apparently without any power to create law at will according to the Constitution. God Help us.

    earlwallace
    (fan of TWIG}

  • http://www.mattcutts.com/blog/ Matt Cutts

    As a Google engineer who has seen the damage done by fake blogs, sock puppets, and endless scams on the internet, I’m happy to take the opposite position: I think the FTC guidelines will make the web more useful and more trustworthy for consumers. Consumers don’t want to be shilled and they don’t want payola; they want a web that they can trust. The FTC guidelines just say that material connections should be disclosed. From having dealt with these issues over several years, I believe that will be a good thing for the web.

    • http://www.our-hometown.com Stephen Larson

      I agree with Matt. What is wrong with making something illegal that is so clearly wrong?

    • Jeff Jarvis

      I trust you to regulate spam more than the FTC. You are better at it and have more impact

      • http://WealthyBohemian.com Kevin Delaney

        Stephen Larson asks: “What is wrong with making something illegal that is so clearly wrong?”

        “Clearly wrong” — to *you* perhaps. What if others don’t think it’s wrong?

        The government does not exist to legislate your particular notion of morality. The government exists to protect RIGHTS. This includes the freedom of speech: In a free society, you have the right to hold any opinions you want, and you may express your views openly. Others (including the government) may not interfere with your rights — no matter how much anyone else may abhor your views, call you a troublemaker, and even genuinely believe that what you’re saying will cause damage to society at large.

        You don’t like what someone says or writes about? Tough. Exercise discrimination in your life; stop looking to the government to act as your parent. No one has the right to compel a man to “disclose” information he’d prefer not to make public. No one forces anyone to read a blog, or join Twitter, or be somebody’s friend on Facebook. Each of us has to take responsibility for our own lives — which is not to say there isn’t a whole army of bureaucrats in Washington frothing at the mouth to assume this responsibility for us.

    • Jeremy Miner

      Matt,

      I admire your work and agree that a lot needs to be done to make the web a more trustworthy place. The disagreement is over the implementation of the solution. If you really believe that government is the best solution to this problem, the consistent thing for you to do would be to resign from Google (private enterprise) and go work for the FTC (federal government). They could really use a smart person like you.

      Do you feel that you or someone at the FTC with as much experience as you (or less) could be trusted with the astonishing power to exact punishment in the form of confiscating someone’s money for posting something that doesn’t conform to these ambiguous guidelines?

      PS, I want you to stay at Google. I think the private sector is the solution. Not the FTC.

      • http://www.therealestatebloggers.com Tom Royce

        There is another point that Matt does not recognize.

        If Google bans my site, or kicks me out of a program they have, that is the end of it.

        But if the Federal Government comes after me, they have the full force and might to come after me anyway possible. If I get fined and do not pay, they can enforce the fine by using a gun and taking my freedom.

        Add into the equation that now an action that is benign could be criminalized just because a prosecutor or bureaucrat dislikes my political or philosophical stance, you have opened Pandora’s box.

        That is a huge difference.

    • http://chrisg.com Chris Garrett

      You will have to keep doing the job you do Matt, the FTC (as far as I am aware) doesn’t have as wide a jurisdiction as you do ;)

      Only the USA based bloggers will really lose sleep over this, and the fines are too small to stop the serious fraudsters.

      Readers do not need to know where a fake/scam/ripoff/sock puppet blog is hosted, written or run, and dollars go further in many countries outside the USA.

      Anyone *really* think the FTC can make even a dent in the issue?

    • http://www.edrants.com Edward Champion

      Dear Mr. Cutts:

      I am very heartened to learn that you feel this way. I know that we can count on your expertise and candor to disclose to Google consumers every resource that Google has used to display the search results before us. And I’m not just talking about cookies and privacy. Let us be fully transparent in the interest of fulfilling the FTC guidelines. Aside from the list of sponsors who have paid to be embedded in AdSense (with dollar amounts indicating what each party has paid), I trust that when I type a phrase into Google, there will be a corresponding list of all the lattes and meals (brand names are important, along with the precise manner in which Google employees obtained this sustenance, for we want to know precisely what companies have influenced the Google team). We will need to know what every single engineer has consumed on the clock. We will need to know such esoteric details as the precise brand of ping-pong ball batted around in the Google rec room, a full list of every product that Google engineers have ordered from Amazon during a spare moment, and all the mitigating forms of corporate influence that have caused Google to be what it is today. We will require you to name the precise brand of bra that your wife wears — with the price and the cup size clearly listed — along with a full inventory of clothing brand names that your family has purchased thanks to your Google salary. Who was the real estate agent who closed the deal on your home? Your lawyer? Your subcontractors? And can we get these lists of influence for everybody on the Google team? After all, you’re an information man. And I’m sure you can agree that no amount of information is insignificant enough to ensure that Google remains trustworthy for consumers. We want a Google we can trust. Disclose, Mr. Cutts, or you will pay $11,000 per search result.

      Very truly yours,

      Edward Champion

      • http://www.mattcutts.com/blog/ Matt Cutts

        “We will require you to name the precise brand of bra that your wife wears — with the price and the cup size clearly listed…”

        Edward, I believe you do yourself a disservice with this comment. The FTC guidelines concern material connections, not bra sizes. The logical fallacy of attacking a straw man argument (a distorted view of someone else’s position) is beneath you.

        Of course, if your comment was intended as satire, then I would humbly submit that the Smiley Face Act of 2015 will require that all satire be clearly labeled with either a “;)” or the phrase “modest proposal” somewhere in the relevant text. ;)

    • dean wermer

      The FTC guidelines do not use a materiality standard. Indeed, the FTC rejects the notion of materiality. The FTC could have limited the regulations to bloggers with a certain level of readership or revenues, but explicitly did not do so. Similarly, the FTC could have limited the guidelines to bloggers receiving payments/in-kind merchandise where the value of such payments/in-kind merchandise is material to the blogger’s operations (or above a stated threshold), but the FTC also chose not to do so. And as others have noted, the FTC chose not to require disclosure of material connections with mainstream, legacy newspapers, magazines, etc.

      Ultimately, most bloggers where this is remotely even an issue will post boilerplate disclosure. Ubiquitous disclosoure quickly will become meaningless disclosure, and, at the end of the day, the FTC will have accomplished little or nothing, while (i) putting at risk the oridinary citizen who is ignorant of the requirement and (ii) dramatically expanding government regulation of internet content. It’s just a short hop, skip and a jump from this toehold of internet content regulation to more additional content restrictions and mandates.

      I don’t want the government deciding what content is or is not appropriate for me, or, as you might put it, what content is trustworthy. As all but the most ignorant already realize, the internet contains vast amounts of untrustworthy information. So why stop at bloggers and product reviews? Can I really trust a newspaper’s article on politics if the journalist (and indeed most journalists at the paper) is writing favorably about a politician of the same party – indeed a party that the journalist supports with campaign contributions? Why shouldn’t that potential bias, one that involves matters of much more serious public interest, be disclosed? Why is an organization with what the FTC terms “independent editorial responsibility” exempted? Of course, if the editors work for the same organization, they are hardly independent. And let’s not forget, the bias concerns with an MSM organization receiving hundreds of thousands or millions in advertising revenue are substantial and dramatically outweigh any blogger concerns.

      The utopian goal of a trustworthy web is nice, but ultimately requires someone – in your case, the government – making determinations of what is and is not trustworthy, backed up by the police power. I find that scary.

    • Les Nessman

      ” Consumers don’t want to be shilled and they don’t want payola; they want a web that they can trust. ”

      At the cost of free speech or govt censorship or regulations that stifle freedom? No thanks.

      Thanks for telling us what we want. But actually, we want a web that allows us to speak freely, with as little govt censorship or regulation as possible.

      This post mostly is concerned with blogs and people talking to each other; free speech, free expression.
      You are talking about the commercial aspect of the web. Nothing wrong with that, per se, but you can understand if we see your comments as a little self-serving.

      • http://www.wastedcarbon.com Nick

        Yeah! What Les said! I’m with him!!

    • http://WealthyBohemian.com Kevin Delaney

      Matt Cutts says: “Consumers . . . want a web that they can trust.”

      No government agency can make the Internet inherently trustworthy. If you’re pining for the day when you can believe everything you read and see online, you’re living in another dimension.

      Regulatory agencies such as the FTC have only one power: the power to threaten and to punish — in other words, to make life miserable for those whom they determine aren’t doing things right.

      Will the FTC go after a Facebook user who mentions in an update that he loves his new iPod — while failing to “disclose” that he worked for Apple for a few months back in 1993? Probably not. But then, the FTC guidelines are so vague, just about anyone who says anything positive about a product or service could be called on the carpet for violations.

      The FTC had explicitly said it will not issue clearcut guidelines. Instead, they will evaluate siutations on a “case by case basis.” This means that none of us can really know ahead of time whether what we say or write might get us into trouble. What exactly constitutes “disclosure”? What exactly constitutes a “review”?

      The FTC is an unconstitutional and illegal agency. The government has no right to regulate speech — online or off. There’s an old saying: Caveat Emptor. Think for yourself, be a critical-minded person; don’t take at face value everything you read and hear.

    • Paco Wové

      Don’t tell me what I want, jackass.

    • Bob Stein

      Matt’s comment is interesting in that it indicates Google likely has surveyed consumers and has heard enough to know that they want “a web that they can trust.” For the sake of my argument, let’s assume that’s true–both that Google gathered the data, and that the data are accurate.

      It appears to me that Google now has encountered a fork in the road moment faced by many, many other big businesses before it: “now that we’re a massive corporation, is it easier for us to give consumers what they want utilizing our own innovation and expertise, or should we just lean on the feds to do it for us by defining or limiting the rules of the game to better suit our own purposes?”

      Sad to see which direction Google appears to be heading on that road.

  • http://benatlas.com/ Ben Atlas

    I skimmed the post but the claim that blogs are “conversations” is preposterous. Blog that charge money for ads have long been in a broadcasting business. The re-purposed and rapidly scalable celebrity culture long supplanted conversations in the blogosphere. Jeff probably never updated his perception files since the Well. Time to have some unsponsored courage to look the reality in the eye.

  • http://www.siliconvalleywatcher.com/ Tom Foremski

    You don’t have to be a journalist to create “media” but publishing on an open Internet media platform is still publishing and it is certainly media.

    Also, why are you running Google ads if it is creating situations such as the one you described and that cause potential problems or misunderstanding? Is the money worth it?

  • Steve

    Welcome to the pros, bloggers. Those of us in mainstream media — who you love bash — have been living under these rules for decades.

    • http://www.buzzmachine.com Jeff Jarvis

      Oh, come on. No journalist is regulated thusly.

    • Ted Coltman

      Jeff’s right. It’s preposterous to suggest that the MSM are regulated in any such way. If they were, could the sock puppets masquerading as journalists have flourished at WaPo, NBC, NYT, CNN, Faux News, etc. for as long as they have? Oh, I guess maybe they could have, anyway. But still . . .

  • http://madison.imby.info/p/prestonaustin Preston Austin

    I’m not sure I would say there is no problem or no role for government in the solution, but this seems not such a great solution.

    I wish that it focused on disclosure and on more objectively testable thresholds for what should be disclosed via what mechanism. For example I don’t think your disclosure is comical, I think it is honest. I don’t want that signal lost in a noise of defensive disclosures about immaterial stuff that might be used against you.

    Seems like it really should stay out of deciding what can actually be said or done in context of whatever disclosure is required – with potential exceptions that are already well defined such as safety claims, drug effectiveness claims, or messaging to children.

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  • http://www.sterlingediting.com Nicola Griffith

    Good post.

    This is a stunning piece of head-scratchery from the government. It makes me wonder, seriously, how the world keep turning when people who make decisions like this are in charge.

    Shakes head…

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  • http://chasingray.com Colleen

    I’ll weigh in as a book reviewer. What magazine or newspaper has had to return books to the publishers after reviews are written? Do you really think the NYT returns every single book they receive for review? Do you think the publishers want reviewers to return these books – the thousands of books they send out?

    And does keeping an ARC or finished copy really constitute compensation as the FTC intends? I donate most of mine because I don’t want/need them all and I’m sure the publishers don’t want to deal with them. Read Ed Champion’s interview with the FTC today on just this issue. (http://www.edrants.com/interview-with-the-ftcs-richard-cleland/) I don’t run ads, I am not an amazon affiliate but I receive over 1,000 books a year because of my column at Bookslut (and clearly I don’t review or request most of them). I have to read, review and return books now? Really?

    I’d love to know what publishers think of all this – talk about putting a damper on any kind of literary conversation online.

    • Jain Lemos

      I’m a book reviewer, too, and would love to know how this would ever be policed!

      • http://oldgrouch.mee.nu Old Grouch

        “…would love to know how this would ever be policed!”

        SWAT teams. Who will trash your house and take all your stuff “for investigation.” And heaven help you if you don’t have records that prove you sent every book you reviewed back to its publisher.

  • cm

    How do you figure that blogging is not a medium? And I think you even WANT it to be considered a medium.

    On a recent TWIG the three of you were whining that Google News was showing blogs with a “blog” label and that this was deprecating blogs as being lesser than regular news channels. Perhaps you didn’t say that personally but you didn’t object.

    So you want bloggers to be taken seriously like real journos, but without any of the responsibilities and restrictions? Sorry, you don’t get it both ways.

    The actual medium matters nothing. What matters is what you’re doing with the medium. If you’re Facebooking in a closed forum, then that’s private speech. If you’re blogging in public, that’s publishing.

    • http://www.buzzmachine.com Jeff Jarvis

      I said the INTERNET is not a medium for it includes many tools, including Facebook, Twitter, etc.

      Who said I want all bloggers to be taken seriously as journalists? I didn’t. Bloggers didn’t. Link, please.

      Is talking on a street corner publishing, then? Should the government regulate that? I hope not. We have different laws here than you do in New Zealand. I recommend the First Amendment. It has much going for it.

      • cm

        “Who said I want all bloggers to be taken seriously as journalists?”

        TWIG from a few weeks back… Perhaps it was the one while you were under the knife. If so, my bad. The panel were discussing Google News and whining that results were tagging blogs to show they were blogs rather than regular news channels.

        Publishing surely means any time you present stuff intentionally public. A couple of guys privately talking crap at a bar isn’t publishing, but if they stand up on a street corner with a loud haler then perhaps they are.

        IMHO What you’re doing here is publishing with the replies being “letters to the editor”. If this was a closed email group, then that’s not publishing any more than a secret society meeting.

        The real issue here is that if bloggers want to be taken seriously as reliable sources rather than just deprecated as “mere bloggers”, then they need to stand up to the same scrutiny as regular journos.

        I don’t really recommend the First Amendment.. I think it hood-winks/brain-washes people into believing they’re getting freedoms that they don’t really have..

        The First Amendment does not seem to be really working for you:. According to http://www.rsf.org/en-classement794-2008.html anyway (others give similar rankings). Shame it that’s all it can do for you. Sure, you’re beating China and Cuba, but those are probably not the benchmarks you’d like to compare yourselves with.

      • Ittiz

        In reply to cm’s reply: The FTC has no more right to regulate the internet than the FCC has right to regulate cable television. If people say respectable things on the internet they will be respected, but the government doesn’t have the authority to force someone to be respectable on a private computer on a privet network. For the most part the internet is a conglomeration of privately, not publicly owned networks.

    • Les Nessman

      -“The real issue here is that if bloggers want to be taken seriously as reliable sources rather than just deprecated as “mere bloggers”, then they need to stand up to the same scrutiny as regular journos.”-

      I don’t care about being a reliable source. I just want to express my opinions on a blog. So am I exempt? No? Why not?
      I just want to be a hobbyist blogger, I don’t care if anyone visits my site or not; why should I have to ‘stand up to the same scrutiny of regular journos”?

      • http://www.buzzmachine.com Jeff Jarvis

        Hell even regular journos will stand up to less scrutiny.

  • steve

    roughly one year ago, the federal reserve and the treasury came out and repeatedly did “commercials” for all our failed banks saying they were strong (and would be made stronger with the $700B in taxpayer $ pumped into them), should they also have to reveal who they really work for?

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  • Ittiz

    I would think this could be struck down in the courts. Blogs for the most part are on privet servers going through privet networks. For them to regulate it is the same same as them regulating what I can say in my own house while my window is open. I think if you don’t want to hear what I have to say, don’t go near my open window, or for that matter my blog! Where are the founding fathers when we need them!?

  • Todd Billings

    Paid blogging is advertisement. All ads are regulated so take your checks and deal with it.

    • http://www.buzzmachine.com Jeff Jarvis

      This isn’t just about paid blogging (which I also abhor). If you have a business relationship with someone – including receiving free samples – about whom you say something positive, you are at risk.

      • Muiris

        Well then that’s what you should focus your critique on… I think you’re being deliberately disingenuous when you ignore the fact that these regulations aren’t really aimed at someone who says “Oh I’d a nice six-pack of Bud last night” on Facebook, but rather at someone who sticks up a blog post exploring the manufacture process and why they think that gives Bud such clear, crisp taste or whatever.

        (Non-disclosure: I don’t work for A-B or even like Budweiser.)

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  • http://tdhurst.com Tyler Hurst

    What happened to the days when we could regulate ourselves? If someone is spamming GOOGLE, that’s Google’s problem, not the government’s.

    Get off my internet.

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  • http://www.lunawebs.com Shad Vick

    Government intervention is always the best answer. Just look at communist China – the people love it over there. They don’t have to worry about that silly “freedom of speech” stuff. Government filters everything they read and write. You do whatever you’re told and it’s all good. Sorry -couldn’t resist the sarcastic remarks.

    This is scary!! Government overseeing blogs and next your tweets, facebook posts and emails…oh wait – didn’t they try and regulate email already?

    So if Tiger Woods has to say he drive a Buick to follow endorsement guidelines form the FTC – will I have to disclose to my clients that I refer to a certain printer that that printer gives me freebies everynow and then because of my volume? I mean where does it end.

    So the next time I see a plug for a Mac computer on an evening sitcom – will they have to disclose in the credits that they computer was displayed through an endorsement deal? Are the Mac vs. PC commercials now breaking the law due to product slander? Marketing in general has always been about persuading one side regardless of the facts. This is not deceit – just pure opinion emphasizing one’s side.

    I like the good ol’ days of people becoming educated so they can fend for themselves. Remember little house on the prairie? Simple and independent. Not perfect – but character and ethics ruled – not Uncle Sam.

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  • docjohn52

    The majority of you have nothing to fear, unless you run a right-wing blog or talk radio program.

    The power to tax is the power to destroy.

    This is not a slippery slope, this is an avalanche.

    This is a direct opening salvo, on the Internet, and your speaking out against the senate, congress, president, etc.

    By the end of the year, the entire alphabet agency list will be issuing regulations (Laws, taxes and fines, not voted on by any legislative body.

    Make it too expensive to pay the fine, make it too intrusive to blog because you’re busy writing disclaimers.

  • http://alexandraschmidt.com Alex S

    Though journalists may not have been bound by the same rules the FTC is here trying to enforce (and though we may at times have given them more trust than they deserve), it’s undeniable that there’s a difference between the structural code of ethics passed down in newsrooms and the totally unregulated nature of blogs. Jeff, your constant disclosures just illustrate the extremes to which you go to show that you can be trusted to police yourself in this unregulated sphere. But to expect all others to do so voluntarily is beyond naive.

    The real problem with the FTC rules (other than the fact that the government is behind them) is that they use a stick rather than a carrot. I propose a rating system (like Energy Star? Good Housekeeping Seal of Approval? ;) ) that trusted bloggers/online journalists/whatever earn over time. But who’d decide which bloggers deserve the seal? A democratic thing scares me because you know that pesky public, with their dancing cats on YouTube…so beats me as to how this thing would work. Actually, ya know what, forget I mentioned it.

    • Tex Lovera

      “the structural code of ethics passed down in newsrooms”…

      Now THERE’S a howler…

      • Alex S

        Tex, have you ever worked at a publication or broadcast outlet?

      • Tex Lovera

        Alex-

        No need to. Although my comment has painted with a broad brush, so did yours.

        I will note that I have spoken at length with a Pulitzer prize winner (for investigative reporting) regarding goings-on at his former paper. Most interesting the axes the EDITORS there had to grind. One example: going so far as to place classified ads looking for people who had relocated, to find stories of how “bad” things were where they had moved. The resulting “expose” 3 months later was predictably laughable.

        But even without my buddy’s input, a perusal of headlines over the past few years indicates sloppiness at least, bias most likely, and malpractice at worst, among too many in the news biz. At least most bloggers (IMO) don’t pretend to be what they ain’t. And what they are eventually comes out anyway in their own posts.

        Here’s another angle for you: my online paper does not allow comments. There is no way to directly call them out (or pat them on the back) for their stories. And no, I’m not blowing 40 cents to send them snail mail in hopes of getting my letter to the editor printed. Yet bloggers get called out in almost real-time for what they post. And you can tell pretty quick who whitewashes their comments sections.

        Are there good newspaper/TV people out there? Yes there are, and I’ve met a few. I’ve also met a few good bloggers. But you aren’t going to convince me that there’s some “high priesthood” strictly associated with traditional media, passing down ethical commandments on stone tablets.

        (Jeff- apologies for the long reply)

      • Alex S

        Oh I’m not trying to convince you of anything. I simply know, from firsthand experience, that there is a structural code of ethics within newsrooms. That doesn’t mean it’s always carried out — of course it isn’t — but as a reporter I was terrified that if I made a mistake (and all reporters do, even those with the best intentions) my editor would hear about it. There was a code of ethics that we discussed and tried to carry out, and a chain of command that enforced it, or at least tried to. There isn’t any equivalent in the blogosphere, which, again, is why people like Jeff go to the disclosure lengths they do… to show that they are ethical enough to police themselves. I’m not yet convinced that the public serves the same purpose, by calling bloggers out in real time, as an ethics code, but I’m open to the possibility.

        It sounds like you personally have an axe to grind with publications, but just why that is isn’t totally clear — anecdotal headlines you cite and the classified story don’t paint a full picture of where you’re coming from. I wonder…

        BTW, what’s your online paper called?

      • http://powerandcontrol.blogspot.com/ M. Simon

        Well sure there is a structure. I believe Dan Rather nailed it “fake but accurate”.

        Or more accurately “this story does not fit the narrative.”

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  • scott

    This blog is not a conversation. It is a publication. If you let anyone add a new entry then I might agree with your analogy.

    • http://www.buzzmachine.com Jeff Jarvis

      So what you just did is chop liver, then.

      • Tex Lovera

        Jeff-

        +1

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  • http://www.calissaleigh.com Calissa

    As a blogger and writer, reviewer and former acquisitions editor for an online review website, I agree and disagree. (I’m a Libra, go figure. ;) )

    I like that businesses appear to be held accountable if they hire a blogger, and the blogger isn’t exposing their involvement. Blogging companies like PayPerPost have regulated their users into forcing them to expose their relationship already. It was one of the requirements if you use that ad agency.

    I don’t like having to say things on my personal blogs or on Twitter, or watching what I say due to the FTC might come by and say, “Hey, you can’t say that, you need to say this.”

    I know there’s a mix of generations here that are trying to handle the Internet, and some are getting the concept and some aren’t. I think there should be some regulations, clearly, to deal with spam and scams and things like that. There needs to be some sort of order. The wild west of the Internet is still there, but I think the government will sometime be forced to think in new terms when it comes to the Internet, and how to handle it.

    Good post.

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  • fit2post

    “Cash from Clickers”?

  • pst314

    Colleen said everything that needs to be said about the FTC demanding that bloggers return review copies of books, so I’ll just say that this latest outrage is proof that the FTC needs to have its head count slashed drastically.

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  • eaglewingz08

    Why doesn’t the FTC mandate the same rules for newspapers, tv and other media? If the First Amendment applies to the traditional press and would bar these rules from application, the government should have no power to impose them on the internet.

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  • http://leanwood.com/ Crafty Hunter

    At first, I was lukewarmly in support of the FTC action, believing it fairly enough aimed at fraud. In a rare reversal, I now believe the dangers to outweigh the positive qualities. It’s really a pity that the fraudsters are so hard to control without dancing on the edges of slippery slopes.

    I’d still support making it easy to sue someone for materially misrepresenting a quotation. Government-imposed fines are all too often plea bargained away and profit only money-hungry bureaucrats who promptly spend the fines on politically motivated boondoggles.

  • Matt Baker

    I think you’re not seeing the problem the FTC is trying to solve.

    The web is full of fake blogs that claim to tell the stories of happy users of products. Check out weight loss products, male enhancement products, work-at-home systems, and their ilk.

    Those “blogs” are nothing more than ads — untruthful ads — built on WordPress.

    Add in the celebrity endorsements that are fake (like Anna Nicole Smith’s weight loss campaign… when she died, they found the competitor’s products in her home instead of the one she endorsed)… that one campaign cost consumers hundreds of millions of dollars.

    • http://www.buzzmachine.com Jeff Jarvis

      Then use current laws to prosecute fraud.

      • andrew

        These are interpretations of current laws.

  • http://winepeopleblog.com Arthur Johnson

    Great rant, Jeff. I’m linking to it on my own site, because you make the case so eloquently.

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  • http://www.totalvac.com/ TotalVac

    It is not free speech if you are receiving a product or getting compensated. That is not “just talking” like Jeff Jarvis wrote. It is a paid endorsement. Has he not heard of PayPerPost.com or other websites that allow advertisers to pay bloggers to link to them?

  • Bob Walters

    Jeff,

    I might have missed this but, I didn’t see it in your article or your disclosures page…

    Do you receive free samples of any product or service that you write about?

    (I am curious about the defensiveness that has erupted, and this fact seems relevant to your arguments.)

    These regs do *nothing* to hinder the conversations of consumers (on blogs or street corners) that receive product in the normal way. Nor do they influence or bias the conversations of reviewers who have received complementary product.

    They merely require disclosure in the latter case.

    As to the book reviewers…if all reviewers simply state somewhere: “Per industry norms, I get many books gratis from publishers.” Case closed. Compliance – and transparency – achieved.

    Right?

    Bob

    PS – Are commenters now bound as well? Maybe….

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  • http://www.seo-works.com Peter (IMC)

    I don’t understand the big problem. All you have to do is put a disclaimer in your blog in which you state that all products mentioned in the blog are placed there because you have to make some money as well, unless otherwise stated in a post itself.

    That you could actually use to your benefit, especially if you make a habit out of using the same kind of writing language for products you do receive compensation for and products you simply mention because you like them so much.

    You can create a lot of trust this way.

    These kinds of things are very valuable opportunities.

    • http://oldgrouch.mee.nu Old Grouch

      All you have to do is put a disclaimer in your blog in which you state that all products mentioned in the blog are placed there because you have to make some money as well, unless otherwise stated in a post itself.

      You want to bet $11,000/instance that your disclaimer satisfies the feds?

      Didn’t think so…

      • http://www.seo-works.com Peter (IMC)

        Doesn’t matter how you do it. The disclaimer was just a sugestion. If you have to do in a different way so the feds are happy, then you do it that way.

        The point is,… this is a good thing. If you use it right, you can increase the trust value of the site.

      • http://powerandcontrol.blogspot.com/ M. Simon

        But the Feds will not tell you what makes them happy. It is on a case by case basis.

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  • John Doe

    Yeah! What Edward said!

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  • http://www.webpronews.com Rich Ord

    WebProNews has a good discussion happening now in the comments of an article covering both Jeff Jarvis and Matt Cutts viewpoints.

    http://twe.ly/24b

  • Paul Kelly

    Two common arguments on this issue are 1. Freedom of Speech and 2. Government is bad and/or useless.

    1. Freedom of speech is about the right to impart information or ideas via verbal expression. This is very clearly not the same as a private enterprise making a sales pitch to prospective (or more importantly non-prospective) customers. Even if it were the same thing, the right is not absolute but comes with limitations (i.e. hate) so, please come up with something more tangible than freedom of speech.

    2. Government is often, maybe generally ineffective. Better ideas to deliver the same outcome very welcome. Governments exist to protect people, not businesses (who largely do a pretty good job of that, all on their own)

    • http://wyman.us Bob Wyman

      Right… Not everything that takes the form of speech is that “speech” which our constitution protects. There always have been and always should be ways to distinguish acts which are protected from those which are not — whatever their form. The issue should not be *if* distinctions are made but rather what distinctions are made. Free speech is not threatened by making distinctions, it is threatened by making the wrong distinctions.

      bob wyman

  • Jane Doe

    Matt Cutts says: “Consumers . . . want a web that they can trust.”

    Wow.

    What else can Mr. Cutts tell me I want as a consumer?

    In my opinion Mr. Cutts’ assertion that he knows what consumers want is insulting and he should apologize.

    The single thing that might possibly be funny is that, many times, I do not know what I want. Thus, the, apparent, assertion, by Mr. Cutts, that he, and the FTC(U.S. government), knows what I want confuses me even more.

    Maybe I should not be surprised at Mr. Cutts’, though.

    Afterall, Mr. Cutts’ boss, Eric Schmidt, who did not INVENT the Internet, also knows a lot about the Internet and those that use it.

    Mr. Schmidt, who did not invent the Internet, has, reportedly, announced that the Internet(webmasters, bloggers, CONSUMERS, social networkers, U.S. citizens) is “a CESSPOOL”. Almost 1 year, to the day, later Google, in my opinion, continues headlong in its determination to “clean up” all of us sewer dwellers in this “cesspool”. It seems to me that Google has a powerful buddy in the U.S government(FTC) so they just might accomplish their goal.

    Should I thank Mr. Schmidt and Mr. Cutts and Mr. and Mrs. FTC(U.S. government) for, apparently, determining that I, and the majority of my fellow webmasters, bloggers, CONSUMERS, social networkers, and U.S. citizens are all “pieces of c***” in the “cesspool” that is the Internet?

    So, what, the majority of us hardworking webmasters, bloggers, CONSUMERS, social networkers, and U.S. citizens are deserving of nothing save being “wiped out” by the “omnipotent” hand of the FTC(U.S. government) and Google?

    Don’t tell me anything about China, Tibet, Ir**, etcetera.

    Tell me about all the rights I continue to be foolish enough to believe I have as a U.S. citizen.

    In the U.S., despite being on the do not call list, “I” still get numerous calls, on an unlisted number, from all manner of telemarketers to whom I do not want to talk and who are not excepted by the do not call rules.

    How many people realize a telemarketer, in the U.S. system, can CHOOSE to show you (a consumer they are “harassing”) any caller id information they please?

    It is not uncommon for telemarketers I have asked to identify themselves, and to stop calling me, to speak profanity and hang up or, at the least, not remove me from the calling list as I requested.

    What I might want is a telephone line, including cellphone, that I can trust not to have some telemarketer on the other end. Not just any telemarketer, but a telemareketer who, according to the U.S. government’s own published do not call list rules, is prohibited from calling me. A telemarketer who I have asked to stop calling me, but does not.

    And telemarketing is just a “light” example.

    In my opinion, and my considerable experience, the FTC, like most of the U.S. government, is nothing but a license to F*** The Consumer. Substitute “citizens” for Consumer if you like.

    No, I do not believe the FTC is interested in benefiting the majority of average consumers on the Internet. What they, in my opinion, are interested in doing is nailing shut any voice, or mouthpiece, other than their(U.S. gov’t, or those who they appove($$$$$$$$$)) own, in my opinion, thoroughly corrupt one.

    The United States, in my opinion, is a place that gets sicker and sicker, as a direct result of the United States, in my opinion, “dictatorship” and “criminal” ways, with every nanosecond that passes.

    U.S. government mouthpieces talk all about how oppressive and dictator-like certain other governments are. Yet the real oppressive, dictatorship, in my opinion, is right here in the U.S. …to the extent that I think even George Orwell would be aghast.

    Do not be surprised by what you are about to read:

    “The combined profits for the ten drug companies in the Fortune 500 ($35.9 billion) were more than the profits for all the other 490 businesses put together ($33.7 billion) [in 2002]. Over the past two decades the pharmaceutical industry has moved very far from its original high purpose of discovering and producing useful new drugs. Now primarily a marketing machine to sell drugs of dubious benefit, this industry uses its wealth and power to co-opt every institution that might stand in its way, including the US Congress, the FDA, academic medical centers, and the medical profession itself.”
    — Dr. Marcia Angell, former editor in chief of the New England Journal of Medicine

    • Tom

      AMEN!

      Do I need to disclose that Jesus died for my sins and gave me everlasting life when I mention The Bible? Besides the speech issues now we can drag religion into it.

      • http://powerandcontrol.blogspot.com/ M. Simon

        Do I need to mention that Jesus was Jewish? Time to get back to the Old Time religion. If it was good enough for Jesus it is good enough for me.

      • typical Jesus fre**

        I don’t think you do need to mention what you think Jesus was.

        To me, we keep trying to analyze Jesus when, maybe, we should be analyzing ourselves.

        Jesus died for EVERYBODY’s sins.

        …not sure I care what color his skin was; something that, probably, no man or woman alive today knows.

        And, especially, with our extremely finite, and limited, minds we should not care either.

        Every single human being alive now, who does what is required, can get in. Apparently, it may be difficult enough for most of us(human beings) to do the simple required stuff. In order to get it right, we should concentrate on doing just that. …the required stuff.

        No extra points given because your socks are blue, your pants plaid, or your skin purple. No segregation up wherever there is…

        {Now watch somebody ask me to post what the “required stuff” is so they can a**** with me.}

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  • Tom

    what impact will these”rules” have for “freeware” or “open source” software?, if any?

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  • http://madison.imby.info/p/prestonaustin Preston Austin

    Actually finished reading the thing and came back to see lively comments. yay lively comments!

    Jeff added:
    _FTC guy tells blogger to return books after a review. These people have no clue as to reality. Publishers don’t want them back_

    FTC guy might feel awkward asking that the books be burned, but it would accomplish a similar result, it reduces the value and potential for influence of the payment. The books _are_ a payment though, that’s obvious, at minimum recipient has been paid what they would have paid for an (early) copy of the books – probably zero in many cases, probably full cover price or more plus shipping in others. Across a year it adds up the kind of money I might want to hear about.

    What remains in question (and my position) are:
    – if reviewer should disclose that payment (yes if it is individually or cumulatively material, such as all the O’Reilly books in a year going to a developer who also does reviews)
    – if what you can reasonably say in context of that payment should be curtailed (generally no, that’s a very steep and slippery slope)
    – if the gov has a role in deciding any of that (probably, but this effort seems more than a bit mucked up, though not I think quite as badly as folks who feel menaced by it are portraying)

    Clearly onus is on FTC to clarify edge cases in some binding manner, and make actual intent & application apparent and not readily distorted for convenience.

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  • http://www.mutualadvantageupdates.com Kevin Polley

    While this was picked up and discussed by bloggers, headlined at targeting bloggers, I read it as targeting all forms of ‘new media advertising’.

    The lack of defined ‘rules’ and information for these guidelines will affect small business with yet another layer of red tape it can do without. It opens up the doors for potential litigation issues (I didn’t know it was an advert) and new powers could well be abused by the enforcers themselves who read a report or two but have no real concept of how the web works.

    While I understand the need and the sentiment to protect consumers, half baked plans and guides like this sow more seeds of confusion. As it’s already been said above, I’d trust Matt to solve the problem more than I would the FTC.

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  • http://gicharts.blogspot.com Moise Levi

    I enjoyed reading your book. It actually helped me for my blog.
    Last night, Google removed my blog for a few hours.
    Over 50 emails from readers telling me that my blog page “blog removed”.

    I do not blog for money. I have Google ads on my blog (I make peanuts from that)

    I provide free content so that Goolge can sell its ads.
    Like you said, a true win/win scenario

    Main problem with your “Google theory” ; Google is always in “Beta”, so their answer is quite clear ; we are still testing.

    No way to get a clear explanation.

    You have to get on a forum to try to figure out what occured.

    I “only” have over 1500 unique visitors per day (mostly investors), so I am not a “big blogger”. So I decided to Tweet my “incident” and write a post about it …..

    No response from Google, but a lot of emails from my readers.

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  • http://mythospheres.com RichF

    One of the concerns I see with this is part of the FTC phrasing that says, “will be required to clearly disclose the results that consumers can generally expect.”

    If I promote any product, on how to, oh, I don’t know, start a business, lose weight, write a novel, etc., no matter how authoritative or helpful the product may be, what percentage of consumers will actually do it?

    Consumers often buy a product on a lark, or a wish, or a half-hearted New Year’s resolution, etc., and don’t commit themselves to the effort involved.

    This is not just the case with internet marketing. This is a universal tendency of a whole lot of the human race. To require us to say “what results consumers can generally expect” is essentially to require us to say, “this won’t work for you,” because it will only work for those who very seriously apply themselves, and statistically, whoever is buying it at the time is not very likely to be in that 1 or 2% who will.

    I’m all for honesty and transparency in business, government and otherwise, and I believe in government’s ability to help and protect consumers, but only when policy is being made thoughtfully, by folks who are in touch with reality.

    (Whatever happened to thoughtful, reality-based public servants by the way? Just curious.)

  • http://journalistopia.com Danny Sanchez

    Jeff, some interesting footnotes in the document: “As with traditional media, the Commission’s law enforcement activities will continue to focus on advertisers.” (Bottom of Pg. 39) Seems like they’re far less likely to come after individual bloggers than they would the hands that feed some of them.

    Also, another surprising part of the document said that the FTC would hold advertisers accountable for claims made by the blogger. So let’s say Company X pays a blogger to review their skin cream. If the blogger then makes an unsubstantiated claim that the cream, saying perhaps that it cures warts, the advertiser would be on the hook for that statement, even if the advertiser never implied or encouraged that fact to be written.

    Lastly, the rules don’t apply to just blogs. @Shad Vick joked that the government would be regulating tweets next. These guidelines are meant to cover tweets, Facebook updates, message board posts — nearly every form of communication that exists on the web.

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  • http://moderndaypeasants.com/blog Modern Day Peasant

    When will everybody learn that the Government is not their Night In Shining Armor? The little people of the world or the “Peasants” so to speak finally have an outlet to get their message out to the world and possibly earn a living along the way and suddenly there must be full disclosure! People of this country know that there are many websites that are not trustworthy just as they know that there are many newspapers and television stations that are in the back pocket of elitist or goverment organizations. I’m not sure that we want the FTC deciding which Internet content is good for us and which is bad. It seems to me that it may be better for all invloved if we make those decisions on our own.

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  • Nathan

    I totally agree with you Jeff, don’t we have enough government regulation already? Even if that $11,000 fine doesn’t apply on the first offense, it really doesn’t need to be done at all. Leave us alone!
    Nathan

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  • http://www.democraticmedia.org Jeff Chester

    I am afraid Jeff you are failing to keep up with the realities of the digital market. Anyone who follows it with a more nuanced eye understands its being shaped by very power commercial forces. The tracking, targeting and profiling of consumers and citizens by online marketers has led to public concern and government action about privacy across the globe. A more recent disturbing development is the rise of the commercial social media monitoring industry–a new private surveillance system being used to listen in and analyze public conversations; all so we can be influenced by various commercial and political entities.

    The FTC is finally waking up for the need to address consumer problems in the digital marketplace. Thoughtful journalists and others should praise the agency when they do the right thing.

    • http://www.buzzmachine.com Jeff Jarvis

      None of that is in the regulations I am complaining about.

      I think that targeting is good, personally, because it reduces irrelevance and clutter; we need more of it. But that is an entirely different discussion.

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  • RD

    The government ALWAYS finds a way to screw up rules with “good intentions”. The FTC WILL BECOME a function of politicians who want to “nudge” the public towards an action.

    It has only been a few months when the government threw out priority claims on GM and gave it to the unions. In a flash, billions of dollars were stolen by the US government and given to political supporters. This was a political action done “just because they could”.

    I say “VOTE OUT THE SCUM in 2010″. Cut government control, and start restoring freedom to Americans. Life is messy. We’re better off teaching our children how to be skeptical readers and consumers, than to rely on government telling us what’s safe.

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  • http://www.a2sm.com Seth Goldstein

    Jeff,

    I completely agree with you. Though I do think paid post are totally worthless and I’m the farthest from a libertarian, when the government threatens legal action against bloggers about disclosure that just goes too far.

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  • Tracy

    Forced disclosure will be chilling on little-guy discourse. I already self-edit my blog topics to avoid giving the appearance of having sufficient assets to be worth threatening with a lawsuit (I try to appear poor so I don’t get robbed by a thug or a lawyer). I am a damned lot more independent than most reporters at my local paper. That is partly because of my anonymity; I’m not afraid to let the liars “have it” with both barrels. Often, my posts expand on the dearth of actual information in “professional” news reports. If I say I like Peet’s coffee, do I have to disclose that I got a free cup of coffee 15 years ago? Haul me off to jail then, because I don’t remember what I was doing 15 years ago.

    Nebulous laws just give powerful enemies some rope to hang you with, while leaving the general public powerless to demand equal and fair enforcement. I make powerful enemies with my blog, because I speak the truth.

    As a reader of blogs, I independently verify important facts. I do the same with paid news with a dedicated editorial staff. I don’t need the FTC to protect my silly little brain from believing everything I read. That’s my silly little brain’s job.

    If Google supports this regulatory stupidity, Google can go to h-e-double-hockey-sticks. It is possible to write a search algorithm that filters out bogus content. It is possible to include a “flag this” link in search results and parse the result against a more stringent algorithm. It is possible for search users to use their little pea brains to disregard bad results. I know the concept of consumer responsibility is politically incorrect, but subjecting unpaid private citizens to complex regulations when they use their right to free speech on the internet is going a tad far.

    I make not one red cent off my blog, but google advertises there, which makes it a commercial, money-making venture for google but not for me. My blog is a bulletin board, a place for me to offer thought-provoking information and ideas and for others to read, respond, or move on. Why am I being held to a higher journalistic standard than the hacks at the paid newspapers? Because I don’t have a lobbyist and a lawyer. When the standard for who to pick on, regulate, and restrict becomes “the little guy is the easiest target,” that’s not too many steps away from totalitarianism. The best blog ever posted was the Constitution. Government regulators ought to read it, know it, and obey it. I do.

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  • http://blog.evolutioncoop.com Netvalar

    I am all for the reason and purpose of these guidelines. Especially as the primary focus is on advertisers not bloggers. However how many complaints does it take to start an investigation? How much of your time as a blogger will be wasted by this investigation? Oh and lets not forget this is the internet so how many enemies does it take to make hundreds of complaints? I will answer that last very easily it only takes pissing off 1 person.

    This is the age of word of mouth. How many music fans are part of a street team? How often do they receive free swag? And now you tell me that all street team members have to disclose this in their limited character tweets?

    But hey I have the answer. Everyone who receives free swag once they no longer need it for reviews or whatever. Then they need to send it to the FTC via COD. If the govt. says we can’t keep it well then instead of me paying to send it back let them.

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  • http://www.governmentgrantsseeker.com Grant

    You know, the definition of fascism is government joining forces with corporations. The latest round of this started with the Fed taking power of our money supply. Our laws clearly state that all direct (versus excise) taxes must be apportioned appropriately. The money the Fed collects via the income tax is NOT apportioned at all!

    Fed, FTC, both have to go!

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  • http://www.ABDPromotions.com Steve

    This type of fine reminds me of the strategy the Federal Communications Commission used to bully its opponents. Rarely used against everyday media outlets, it was brutally levied against radio broadcasters who dared to push boundaries and question its authority. Imagine waking up and finding you have been fined $495,000 for an alleged infraction.

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  • http://www.10thdegree.com/ Jackie

    I agree with the fact that people mainly use blogs to connect; however a lot of webmasters also use them to rank for SEO terms. I think most consumers are smart and savvy enough to distinguish between an authentic post and a spam post. We don’t need our hands held by the government/FTC as if we are a bunch of toddlers. It’s ridiculous.

  • http://www.screwmachine-parts.net screw machine parts

    SO bad.The FTCi s another Government agency apparently without any power to create law at will according to the Constitution.

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