Over the past year, I have been monitoring a very interesting trend with important ramifications for the future of Internet policy. State Attorneys General (AGs) — often in league with the National Center for Missing and Exploited Children (NCMEC) — have been striking a variety of “voluntary” agreements with various Internet companies that deal with child safety concerns or other online issues. These agreements require the companies involved to take various steps to alter site architecture and functionality, commit to stop certain practices, or take steps to block certain users (ex: predators; escort services) or types of content (ex: child porn; online “discrimination”) altogether.
To begin, let me be very clear about one thing: Some of these activities or types of content warrant a law enforcement response. That is certainly the case with child pornography or predation, for example. However, as I will note down below, there is a legitimate question about whether state officials and a non-profit private organization should be crafting legal or regulatory policies to address such concerns for a global medium like the Internet. Regardless, these agreements are creating a new layer of Internet regulation (almost extra-legal in character) that is worthy of exploration.
First, let me itemize some of these recent “voluntary” agreements between Internet companies and the AGs and/or NCMEC:
- MySpace, Facebook & 49 state AGs: On January 14th, 2008, social networking website operator MySpace.com announced an agreement with 49 state Attorneys General (AGs) aimed at better protecting children online. As part their “Joint Statement on Key Principles of Social Networking Safety,” MySpace promised the AGs it would expand online safety tools, improve education efforts, and expand its cooperation with law enforcement. Facebook entered into a similar agreement with the AGs in May. These agreements came after AGs had relentlessly pushed these social networking sites for over a year to adopt age verification techniques to screen site users. Although mandatory age verification was not part of the final agreements, an Internet Safety Technical Task Force (ISTTF) was formed to study online safety tools, including a review of online identity authentication technology. It was clear when the announcements were made that the AGs were very interested in seeing online age verification pursued.
- Various ISPs and New York AG + NCMEC: In June 2008, New York Attorney General Andrew Cuomo pushed several major ISPs to enter into a Memorandum of Understanding (MOU) with NCMEC to address the dissemination of child pornography online. Under the MOU, the ISPs must use a NCMEC-provided list of URLs supposedly containing child pornographic images to blacklist and block all access to those sites for their users. The agreement also closed off access to Usenet discussion boards on those ISP’s networks.
- Craigslist & California AG + NCMEC: In early November, Craigslist struck an agreement with 40 state AGs as well as NCMEC in which the online classifies operator agreed to take steps to root out certain sexually-themed or “erotic services” listings. See this Ars Technica article for additional details.
- eHarmony & New Jersey AG: Just this past week, the online dating service company eHarmony announced it had struck an agreement with the Attorney General of New Jersey to settle a complaint that a New Jersey resident filed with the state in 2005 alleging that eHarmony violated his rights by not offering a same-sex matching service. The agreement creates some interesting questions, as George Mason University law professor David Bernstein told the Wall Street Journal. The discrimination claim “seems like quite a stretch,” he said, and he said that he is worried it might encourage similar claims. “If you start a dating service for African Americans, do you need one for whites and Latinos? If you have one for Jews, do you need one for Christians and Muslims?” According to the Journal, eHarmony faces a similar discrimination claim in a California court, so we might get answers soon enough.
There are a number of interesting legal and practical questions raised by these agreements:
- “Voluntary” Agreements & the Law: Although typically billed as “voluntary” in nature, it seems highly unlikely that any of the companies involved would have made these concessions without pressure from the state AGs (and sometimes NCMEC) to do so. How binding are these agreements in light of that? Of course, it is unlikely any of the companies involved would (or could) later challenge the validity or scope of these agreements after they had already signed onto them. But what if a free speech or civil liberties group challenged these agreements in court because of their impact on the Internet, online speech, or a certain group of citizens? Would they have a case? Would they even have standing? Where do they have it?
- Precedent & Applicability: Do such agreements constitute precedents that could be applied in other cases or contexts? Could parties not involved in the original agreements — either because they refused or did not yet exist — eventually be covered by them in some fashion? Do these agreements cover services available in the American but hosted entirely overseas?
- Commerce Clause Issues: Do state Attorneys General have the right to impose such quasi-regulatory regimes on an interstate medium like the Internet? Can 50 state AGs impose uniform laws on the Net without any congressional oversight, as was the case in the MySpace and Craigslist agreements? Conversely, what will the impact be of individual state AGs going their own way, as was the case with the eHarmony agreement? If Congress remains silent on the agreements but a group (ex: a civil liberties group) brings a dormant Commerce Clause case, what are their chances of prevailing in court?
- Accountability & Effectiveness: Will anyone in Congress or a federal agency oversee these agreements? How transparent are these agreements when they are brokered behind closed doors or with NCMEC? Does the Freedom of Information Act (FOIA) apply such that records and information can be made public? What is the benchmark of success when different states adopt different legal regimes for the Net?
I’m not saying I have any good answers here; I’m just trying to get the questions on the table and get a discussion going. I would appreciate any input on the matter, especially of the legal variety. It strikes me that we are in somewhat uncharted waters here, at least for the Internet. On the other hand, I’m sure there have been state AG-related “voluntary” agreements struck in other industries and contexts in the past that might provide some insight into what, if anything, happens next.
What I find most interesting about these developments is that the state AGs appear to be gradually accomplishing what Congress has not been able to do over the past dozen years: To impose a comprehensive regulatory structure on the Internet. But that emerging regulatory structure is highly fractured and piecemeal in nature, and that troubles me. I am particularly concerned about the long-term impact of a 50-state patchwork approach to online regulation — both for speech and commerce. It’s not like we’re talking about the regulation of a corner newsstand here, after all. This is the Internet, and localized regulation of this national — actually global — platform makes me more than a bit nervous.
In closing, I want to again reiterate that I do not necessarily oppose intervention in any of these cases. However, to the extent such regulations do need to be imposed and enforced, it may make more sense for the process to be federalized and NCMEC’s role nationalized and administered by the Federal Bureau of Investigation or some branch of the Department of Justice. There needs to be greater transparency and accountability when matters of child pornography or predation are at issue, and NCMEC’s lack of FOIA-ability in this regard is problematic. I think NCMEC is a fine organization that does very important work to help protect children, but it is work that involves criminal activities and the collection of evidence that could be used in criminal court proceedings. In light of that — and in light of the expanded law enforcement powers being granted to NCMEC — I believe the time has come to have a serious conversation about whether those powers should continue to be housed in a private, non-profit organization, or if they should be transfered to a federal law enforcement agency. Of course, there could be serious downsides associated with the nationalization of those powers, which also should be considered.