To: Hon. David Patterson, Governor, State of New York
From: Adam Thierer, life-long gamer and Senior Fellow at the Progress & Freedom Foundation
Date: July 17, 2008
Re: That video game bill (A. 11717/ S. 6401) you have been asked to sign
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Dear Gov. Patterson:
I write today to ask a few questions about a measure that is currently sitting on your desk awaiting your signature. The measure (A. 11717/ S. 6401), which recently passed through the New York legislature, proposes a new regulatory regime for video games. It would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry.
As a life-long gamer—and now the parent of two young gamers—this is a subject I care deeply about. I also come at this topic from an academic perspective as someone who analyzes the intersection of child safety concerns and free speech issues surrounding various types of media and communications technologies. I am the author of a frequently-updated book, Parental Controls & Online Child Safety: A Survey of Tools & Methods, which provides a comprehensive look at the many tools and methods on the market today that can help parents deal with concerns about objectionable media content.
But mostly I write you today from the perspective of someone who just enjoys games. Actually, let me clarify that: I am utterly infatuated with video games. Gaming has been a life-long passion of mine and something I have enjoyed with friends and family since I owned my very first PONG and Atari 2600 systems in the 1970s. Since then, I have owned virtually every major video game console sold in the United States. Even today, as I approach 40 years of age, I find myself sitting down many nights to enjoy games with my son and daughter on the Xbox 360 and Sony PS3 consoles that we have in our home.
Like millions of other Americans, gaming is now fully integrated into the fabric of my life and the lives of my children. It has become one of the most enjoyable media experiences for my generation and the generation of kids that we are raising. And, although I am certain that the New York legislature had the best of intentions in mind when passing this bill, I believe I speak for a great number of those other American gamers when I say that the measure on your desk is somewhat of an insult to our intelligence. Let me explain by raising a few questions about this bill, which I will argue is unnecessary, unworkable, and unconstitutional:
• Why does this bill impose mandatory labeling requirements when all video games sold at retail are already clearly rated and labeled? The bill demands that every game bear labels describing its content, but such a labeling scheme already exists. As any parent or game buyer can tell you, every video game container has detailed content descriptors on the cover that clearly tell you what you can expect to see or hear in the game. These ratings and labels, which are created and enforced by the Entertainment Software Rating Board (ESRB), are highly specialized. The ESRB applies seven different rating symbols and over 30 different content descriptors to every game it rates. Since the New York bill is particularly concerned about the labeling of violent content, you should be aware that the ESRB has over a dozen descriptors just for violent forms of content. That makes it perfectly clear to the parent if the game contains merely “mild violence” or “cartoon violence” or, at the other extreme, “intense violence” or “sexual violence.”
Does the New York legislature imagine that parents are unaware of these ratings or labels? Frankly, I don’t see how anyone could miss them. Again, they are on every game box and can be found online via the ESRB’s website or other gaming sites and media watchdog sites. And survey data shows that parents are aware of these labels. Surveys by Peter D. Hart Research Associates reveal that 89% of American parents of children who play video games are aware of the ESRB ratings and that 85% consult the ratings regularly when buying games for their families. And those numbers have risen every year for the past decade. The Federal Trade Commission has also praised the industry for those ratings and descriptors and for the industry’s efforts to make the public more aware of them.
In light of these facts, why does the New York legislature believe any additional labeling requirements are necessary?
• Why does this bill require mandatory parental controls when every gaming console already includes them? The bill also requires that every new video game console be equipped with technology that can allow parents to block access to certain video game content. Well, Governor, I have good news to report… those tools already exist! Every new console (Microsoft Xbox 360, Sony PS3, and Nintendo Wii) recognizes the ESRB’s digitally embedded ratings in games and offers blocking tools that allow parents to prevent games rated above a certain designation from being played on the system. These tools are quite sophisticated, and parents can even employ additional controls to block online purchases and interactive chat while their kids are gaming.
Again, does the New York legislature imagine that parents are unaware of these controls? That’s equally hard to fathom in light of how easy it is to find and set up these controls. Moreover, the industry has spent a great deal of time and money promoting these controls and making the public aware of them.
• Isn’t the New York legislature aware of the fact that parents spend good money on consoles and games? In my book on Parental Controls & Online Child Safety, I note that the ultimate parental control tool is the “power of the purse” that parents can exercise when their kids come to them asking for money for new media titles or technologies. Although this isn’t a fact that the video game likes to advertise about itself, one of the reasons that its ratings and parental controls have been so much more effective than the systems that preceded them is because the price tag is so much higher than other media! New consoles cost hundreds of dollars, and most new game titles retail for $40 to $60.
Few parents would blindly hand their children that sort of money and leave their kids free to purchase whatever they desire. Thus, when kids ask for gaming consoles or game titles that cost that much, it creates a heightened sense of interest or concern by parents about what it is that their child is consuming. Again, in light of this fact, why does the New York legislature feel it must act in loco parentis?
• Why an “advisory council” just for video games? The bill also calls for a 16-member “Advisory Council on Interactive Media and Youth Violence” that would study whether there is a relationship between gaming and youth violence. It’s tough to be against anyone “studying” anything, but one wonders if the body would become a politicized mess with endless in-fighting about a topic that has already been exhaustively researched and debated in other venues. Moreover, if we are simply hoping for still more “study” of this issue, let’s not forget that some of the nation’s finest universities reside in the State of New York! Why not just let one of them convene events or task forces to study this issue?
More importantly, why is it that video games are being singled-out for oversight by a state-run commission when other media providers have no similar overseers? Why not an advisory council for books, for example? After all, they can be checked out of any library free-of-charge, and there are plenty of titles in most libraries that include violent themes.
Finally, what sort of authority does this advisory council possess? Will it become a taxpayer-supported platform for anti-gaming activism that is masqueraded as social science? Will it seek to compel game developers to self-censor content that many in the gaming public demand? Will the focus and powers of this advisory entity grow over time? What is to prevent that from happening?
• Isn’t the New York legislature aware that federal oversight already takes place? For over a decade, the Federal Trade Commission has been monitoring the video game industry’s practices. The FTC has also issued a reoccurring report, Marketing Violent Entertainment to Children, which surveys the marketing and advertising practices of major media sectors. As mentioned, the video game industry has been praised by the FTC for its improved efforts to curb underage access to objectionable materials. Why, then, is state-level regulation necessary? And will New York’s effort spawn additional state-based “oversight” efforts leading to a patchwork of conflicting state standards or expectations about game content or game industry behavior?
• Do we really need another constitutional catfight? This measure will almost certainly be litigated. A dozen federal courts have ruled that video game content represents constitutionally protected speech and that efforts to regulate that speech will be subjected to strict scrutiny. The concerns I have raised above each present an issue or angle that could be challenged in court. So, get ready for another lengthy, unnecessary legal battle. The state will likely lose and then also be on the hook for the industry’s attorney’s fees. Which begs a final question…
• Aren’t there better ways to spend the money? Every dollar spent by both industry and government litigating these issues is a dollar that could have been spent on something else. Similarly, every dollar spent by the advisory council is a dollar that could have been spent elsewhere. Here’s an idea: Instead of wasting the money on litigation and advisory councils that will accomplish nothing, how about a commitment by both industry and government to redouble their efforts to make consumers more aware of the excellent parental controls and labeling system already at their disposal?
In recent years, the game industry has been partnering with federal and state lawmakers to run public service announcements of that variety. And the industry has also stepped up the production and dissemination of promotional materials to build awareness of parental control tools. The more of that the better. That is the constructive, constitutional solution. Education—not regulation—is the path forward.
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Gov. Patterson, I do hope you will take these facts under consideration as you sit down to contemplate signing this measure. Countless gamers, and even gaming parents, are growing tired of the seemingly endless witch hunt surrounding video games. The moral panic and rush to regulate on this front is all too reminiscent of past battles over comic books, rock-and-roll music, cinema, and so on. If we learned anything from those episodes it is this: Moral panics and regulatory responses are never the best way to respond to concerns about objectionable content or child safety.
Instead, we must be willing to talk to our kids in an open, understanding and loving fashion about the realities of this world, including the distasteful bits. And, to the extent curbs on underage consumption of potentially objectionable media are necessary, that process should be driven by voluntary, not compulsory, efforts. That includes industry self-regulation, voluntary content labeling efforts, a variety of parental control tools, and education and awareness-building initiatives. Most importantly, we should trust parents to do the job of rearing their children and not expect the State of New York to serve as our national nanny.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.