Audit, Compliance and Risk Blog

Clean Water Act Rulemaking Violated Limits On Publicity And Propaganda

Posted by Jon Elliott on Wed, Feb 03, 2016

In May 2015, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) completed a decade-spanning joint rulemaking, and issued new definitions of “waters of the United States” that are subject to these agencies’ regulatory authority (under the Clean Water Act (CWA) and related federal laws) (I wrote about these rules here). These rules parse ambiguities in several US Supreme Court decisions to re-establish predictable controls over water-affecting actions.

The rulemaking was highly publicized, including intense efforts by EPA and the Corps to solicit public involvement and comments. The agencies made unprecedented use of social media, including Twitter, Facebook, YouTube, and Thunderclap. These included encouragement to recipients to re-post the EPA information to others. When issuing the final rules, the agencies reported that they had conducted more than 400 public meetings and received more than one million public comments (many through social media).

These publicity efforts were also caught up in intense partisan political sparring between the Republican-led Congress against high profile (Democratic) Obama administration environmental initiatives. In part to restrict support building efforts, the 2014 federal budget prohibited expenditures “for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.” Republicans subsequently charged that the EPA and Corps efforts violated these restrictions, adding those charges to efforts to repeal the new rules. The agencies have defended themselves with claims that their efforts amounted to authorized use of publicity and media to develop or promote their own policies.

Senator James Inhofe, Chairman of the Committee on Environment and Public Works, requested the Government Accountability Office (GAO, an independent research and reporting entity under Congressional authority) to investigate this disputed issue, and offer a formal opinion whether agency efforts violated the budgetary restrictions. On December 14, GAO issued its formal reply concluding that some of EPA’s efforts had indeed violated the restrictions. Although EPA had never directly invited the public to comment to Congress or to lawmakers, some of EPA’s postings provided hyperlinks to advocacy group pages that did so; for example, EPA provided links to Natural Resources Defense Council (NRDC) and Surfrider Foundation webpages that took positions on the issues and encouraged viewers to provide responses to Congress. In addition, other advocates had reposted the EPA information along with their own messages including encouragement to political action. GAO concluded that these links did violate restrictions.

As of this writing, EPA had acknowledged but rejected GAO’s conclusions. However, practitioners are cautioning agencies and non-governmental advocates to review their use of hyperlinks to consider whether “secondhand” advocacy or informational campaigns are attributable to the original source. For EPA and other agencies these considerations will affect use of appropriated funds, and for others they will affect use of hyperlinks in political contexts.

Self-Assessment Checklist

Does my organization routinely provide information via social media?

If so, does this information include advocacy as well as factual statements or advertisements?

If so, does the organization have policies or approaches to inclusion of hyperlinks to third parties in its postings, and to inclusions of hyperlinks to its postings by third parties?

Where Can I Go For More Information? Read More

Tags: Environmental, EHS, EPA, Internet

Internet Law: Copyright and the Everchanging World of Digital Technology

Posted by Steve Imparl on Wed, Dec 03, 2014

Despite the pervasive Internet slogan that states, “Information wants to be free,” legal protection for copyrighted works online is thriving, even though the Internet may facilitate copying and access to information. Yet many people continue to misunderstand—or choose to ignore—copyright issues, especially in areas where recent technology is involved.

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Tags: Corporate Governance, Business & Legal, Internet, Intellectual Property

Internet Law: New Top-level Domains and Trademark Law

Posted by STP Editorial Team on Wed, Sep 10, 2014

Since 1998, generic top-level domain names (gTLDs) have been managed by the Internet Corporation for Assigned Names and Numbers (ICANN). Some of the more well-known gTLDs include:

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Tags: Corporate Governance, Business & Legal, Internet, Intellectual Property

CASL: CRTC Getting More Than 1000 Complaints A Day

Posted by Nelson Bennett on Wed, Jul 30, 2014

In the run-up to the 2015 federal election, Canadian business owners may start getting unsolicited emails from political parties inviting them to fundraising dinners. The ones that come from the Conservative Party of Canada may be especially aggravating. After all, it was a Conservative government that brought in Canada’s Anti-Spam Legislation (CASL)—a law that is costing Canadian businesses millions to implement but that few believe will put any kind of dent in phishing scams and spam.

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Tags: Corporate Governance, Business & Legal, Internet, Canadian

Internet Law: New Anti-Spam Legislation Won’t Stop Most Spam

Posted by Nelson Bennett on Fri, Jul 04, 2014

Expect little relief from flood of unwanted electronic messages, experts say.

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Tags: Corporate Governance, Business & Legal, Training, Internet

Internet Law: The Ifs, Ands and Buts of New Anti-Spam Legislation

Posted by Nelson Bennett on Fri, Jun 20, 2014

Knowing CASL’s exemptions is key to learning how it applies to your business.

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Tags: Corporate Governance, Business & Legal, International, Training, Internet

New Anti-Spam Laws Affect Virtually Every Business in Canada

Posted by Nelson Bennett on Wed, Jun 11, 2014

New anti-spam regulations that go into effect July 1 will do more than prevent spamming within Canada by Canadian businesses. Canada’s Anti-Spam Law (CASL) is a catch-all net that covers all forms of electronic messaging, from email and newsletters to social media and software downloads. Businesses that don’t comply face fines of up to $10 million.

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Tags: Corporate Governance, Business & Legal, International, Internet, Canadian

Email Notice and Due Diligence Under the Uniform Commercial Code

Posted by Steve Imparl on Tue, Jan 07, 2014

When a business or person is responsible for providing notice to another business or making that business aware of something, they must follow certain guidelines in conveying the information (e.g., sending it by registered mail on or before the required date), in order to show due diligence. Section 1-202(f) of the Uniform Commercial Code (U.C.C.) defines “due diligence” and “the exercise of due diligence” broadly. The U.C.C.’s requirements for “due diligence” include:

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Tags: Corporate Governance, Business & Legal, Employer Best Practices, Internet

Employment Law: Is E-Verify Even Better?

Posted by Jon Elliott on Wed, Dec 11, 2013

Employers in the United States must verify that new hires are eligible to work in the U.S. This responsibility was created by the Immigration Reform and Control Act (IRCA) of 1986, which drafted employers—on pain of being prosecuted themselves—into partnership with the federal government to deny job opportunities to unauthorized workers. Employers' compliance responsibilities are based on use of the I-9 Form ("Employment Eligibility Verification") issued by U.S. Citizenship and Immigration Services (USCIS). As information technology develops, USCIS has expanded electronic reporting and data management tools, the most important of which is called E-Verify. Both I-9's and E-Verify continue to evolve, and have received recent revisions.

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Tags: Corporate Governance, Business & Legal, Employer Best Practices, Employee Rights, Workplace violence, Internet

Internet Law: FTC Updates Children’s Online Privacy Rule

Posted by Steve Imparl on Fri, Feb 15, 2013

For many years, under the authority of the Children’s Online Privacy Protection Act (COPPA), the Federal Trade Commission has imposed special regulations on websites and online services that are either directed to children under 13 or whose owners or operators have actual knowledge that they are collecting personal information from children under age 13. On December 19, 2012, the FTC announced final, major changes to the COPPA Rule in response to advances in technology and internet use that have occurred since the COPPA Rule was first enacted.

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Tags: Business & Legal, Internet, Intellectual Property