• by Wendy Davis  @wendyndavis, October 15, 2009

Interactive Advertising Bureau CEO Randall Rothenberg has told the Federal Trade Commission that its new guides for bloggers are unconstitutional and should be retracted.

"The new conversational media should be accorded the same rights and freedoms as other communications channels," Rothenberg said in a letter sent to the FTC on Thursday and also published in the Huffington Post.

Rothenberg specifically takes issue with a portion of the new guides for endorsements and testimonials recommending that bloggers should disclose the receipt of free review copies. The FTC's guides do not say that traditional media publications should make similar disclosures.

The IAB chief argues that the double standard violates bloggers' free speech rights and poses an economic threat to small publishers. "Naturally, this expedition from Oceania -- that's the place Big Brother ruled -- should be worrisome to all Americans, and to all viewers, readers, listeners, users, and providers of any communications medium," he writes. "But for the 400 members of the Interactive Advertising Bureau ... the implication that online social media represent a separate class of communications channels with less Constitutional protection than corporate-owned newspapers, radio stations, or cable television networks is of particularly grave concern."

The guides are not in themselves enforceable regulations, but put marketers and bloggers on notice about the type of activity the FTC might consider deceptive. The guides advise bloggers to disclose "material connections" to marketers -- including the receipt of free review copies -- when consumers would be surprised to learn of those connections.

The guides, issued Oct. 5, call for a case-by-case analysis of whether disclosure is required, and say that factors include the product's value -- whether the blogger routinely receives requests to post reviews, and the blogger's readership.

Since their release, the guides have stirred much controversy, with sites like Slate condemning them as a "mad power grab" by the FTC. "Allowing these guidelines to take effect would be like giving the government a no-knock warrant to investigate hundreds of thousands of blogs and hundreds of millions of Facebook, MySpace, and Twitter users for ... saying nice things about goods and services," Slate's Jack Shafer wrote.

But not everyone is condemning the new recommendations. Henry Copeland, CEO of the blog ad network Blogads, says he would like to see writers in online and traditional media disclose freebies. "Just because many traditional publishers have terrible disclosure standards for their travel writers on freebies doesn't mean bloggers should be held to the same low standard," he says.

In the last several days, FTC staff have publicly said the commission intends to target advertisers and not individual bloggers, but critics say the guides in themselves still indicate that publishers and bloggers can be prosecuted.

Mike Zaneis, vice president for public policy at the IAB, adds that many small publishers appear to be in jeopardy. "Any site that does reviews and has message boards is at risk here," he says. "The IAB intends to be the front line for protecting speech online," he adds.

Zaneis says there's no procedural bar to the FTC rescinding the guides. But others question whether that's realistic.

"The tea leaves are very clear here," says Eric Goldman, director of the High Tech Law Institute at Santa Clara University. Goldman, who has argued that portions of the guides aren't lawful, says he thinks the FTC has made it clear it intends to enforce them. "I'd be thrilled if the IAB singlehandedly gets the FTC to reverse itself, but it doesn't seem all that plausible."

Mark Walsh contributed to this report