IRS and Political Discussion - repost

[Malla Pollack]

(This message is being reposted at EV's request with the attachment
included inside the message.)

Another listserv brought to my attention an IRS inquiry that might
interest members of this group. The IRS is considering how to deal
with
the website activities of tax exempt organizations under the complex
rules about (i) taxing such organizations for "lobbying"; (ii)
canceling
exemptions for large amounts of "lobbying"; and (iii) canceling
exemptions for forbidden political activities.  The response date is
Feb. 13, 2001.   The substance of my comments
is that the IRS should interpret its statute in the way least likely
to
deter organizations from creating and maintaining bulletin boards,
listservs, and email update services.  I suggest a few specific calls
under the current IRS regulations, especially not holding comments
posted by users against the exempt organization hosting the site.  If
you would like to sign on to my comment and/or suggest changes, please
contact me off list.  For those who want to look at the IRS material,
The request for comments is Announcement 2000-84 in IRS bulletin no.
2000-42 of Oct. 16, 2000 at page 385.  You can reach it online by
going
to http://www.irs.gov/ choosing "business information" and then
opening
the relevant issue of the IRS Bulletin.

text of my  current draft comment:
                        Draft of Dec. 12, 2000




                                                                        [date]

Internal Revenue Service
1111 Constitutional Ave., N.W.
Washington, D.C. 20224
Attn: Judith E. Kendell, T:EO
*TB/GE-Exempt-2 at irs.gov
                               RE: Announcement 2000-84
                               Request for Comments Regarding Need for
Guidance Clarifying Application
                               of the Internal Revenue Code to Use of
the Internet by Exempt Organizations,
                               Internal Revenue Bulletin 385 (Oct. 16,
2000)

<http://www.irs.gov/bus_info/bullet.html>

Dear Ms. Kendell,
                Thank you for requesting public comments on the
important issue of IRS regulations' impact on the InterNet activities of
exempt organizations.  Additional thanks for allowing comments to be
submitted via InterNet electronic mail.  I salute the IRS for adapting
to modern communications technology.

                "Knowledge will forever govern ignorance"; "[a] popular
government without popular information [] or the means of acquiring it
is but a prologue to a farce or a tragedy or perhaps both."  Letter from
James Madison to W.T. Berry (Aug. 4, 1822), in James Madison, The
Complete Madison 337 (Saul K. Padover ed., 1953).  I strongly urge the
IRS to remember these basic precepts when deciding how to characterize
InterNet activities of exempt organizations.  The InterNet represents
progress, not primarily because it is  new, but primarily because it
allows more persons to access and distribute more information.

                The basic metavalues of the United States strongly
support all administrative agencies, including the IRS, interpreting
their congressional instructions in the way least likely to deter public
discussion and information retrieval on the InterNet. Applying this
policy to the IRS' specific questions yields some clear answers:

1.      Bulletin boards and chat rooms provide  important architecture
allowing public discussion.  To encourage exempt organizations to
fulfill educational objectives, supplying such a forum should not count
against the organization.  An exempt organization, therefore, should not
be charged with any message posted by a chat room or bulletin board
participant.  Only comments by the host site and the host site's
designated moderator, if any, should be charged to the exempt
organization hosting the web site.

2.      Hyperlinks enable location of information sources.  The
inadequacy of search engines is notorious.  All web sites should be
encouraged to provide helpful hyperlinks.  Providing a hyperlink,
therefore, should not constitute lobbying in support of the entity at
the end of the link.  The linking site's description of the linked-to
entity might, however, transform the hyperlink into either political
campaign intervention or lobbying.

3.      Web surfing is pull technology; the surfer must affirmative
decide to move to the destination web site.  Material on an
organization's web site should, therefore, generally be considered
primarily addressed to the host organization's own members.  To rebut
this presumption, the IRS should require a showing that the web site's
host strongly advertised the site in a manner specifically calculated to
encourage the site's use by non-members.  Additionally, actively seeking
hyperlinks to the organization's site from non-affiliated sites might
constitute evidence tending to rebut this presumption.

4.      Because web surfing is pull technology, an organization should
be entitled to assume that its site is visited over whelming by the host
organization's members.  Publication of a webpage by an organization
that has made an election under 501(h), therefore, should be presumed
not to constitute an appearance in the mass media.  The presumption
should not be rebutted merely by evidence that some information of
primary interest to non-members is placed on the site.  An organization
should not be discouraged from providing a public service to nonmembers
who affirmatively choose to visit its web site.

5.      Similarly, absent contrary evidence, an organization should be
entitled to assume that the overwhelming number of persons signing up
for its listserv and email messages are members of the host
organization.  An exempt organization should not be put to the expense
of having to prove the member/non-member status of its listserv and
email correspondents.  The importance of privacy on the InterNet also
counsels allowing this assumption, rather than requiring inquiry into
the recipients' identity.  An organization's emails and listserv
messages, therefore, should be considered an appearance in a mass media
only if the organization has purposefully created an electronic mailing
list primarily composed of nonmembers.

                                Respectfully submitted,


Malla Pollack
Visiting Assoc. Prof. of Law
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at niu.edu