Online Child Safety

[Based on forthcoming article in the Minnesota Journal of Law, Science & Technology, Vol. 14 Issue 1, Winter 2013, http://mjlst.umn.edu]

I hope everyone caught these recent articles by two of my favorite journalists, Kashmir Hill (“Do We Overestimate The Internet’s Danger For Kids?”) and Larry Magid (“Putting Techno-Panics into Perspective.”) In these and other essays, Hill and Magid do a nice job discussing how society responds to new Internet risks while also explaining how those risks are often blown out of proportion to begin with.

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I highly recommend this important new study on “Why Parents Help Their Children Lie to Facebook about Age: Unintended Consequences of the Children’s Online Privacy Protection Act” by danah boyd of New York University, Eszter Hargittai from Northwestern University, Jason Schultz from University of California, Berkeley, and John Palfrey from Harvard University. COPPA is a complicated and somewhat open-ended law and regulatory regime. COPPA requires that commercial operators of websites and services obtain “verifiable parental consent” before collecting, disclosing, or using “personal information” (name, contact inform­ation) of children under the age of 13 if either their website or service (or “portion thereof”) is “directed at children” or they have actual knowledge that they are collecting personal information from a child.

The new study, which surveyed over 1,000 parents of children between the ages of 10 and 14, reveals that, despite the best of intentions, COPPA is having many unintended costs and consequences:

Although many sites restrict access to children, our data show that many parents knowingly allow their children to lie about their age — in fact, often help them to do so — in order to gain access to age–restricted sites in violation of those sites’ ToS. This is especially true for general–audience social media sites and communication services such as Facebook, Gmail, and Skype, which allow children to connect with peers, classmates, and family members for educational, social, or familial reasons.

The authors conclude that “COPPA inadvertently undermines parents’ ability to make choices and protect their children’s data” and that their results “have significant implications for policy–makers, particularly in light of ongoing discussions surrounding COPPA and other age–based privacy laws.” Indeed, this paper could really shake up the debate over online kids’ privacy regulation. I will have more analysis of the paper in my weekly Forbes column this weekend.

Additional reading for COPPA background and current controversies: Berin Szoka & Adam Thierer, “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” (May 21, 2009); and Adam Thierer, “Kids, Privacy, Free Speech & the Internet: Finding the Right Balance,” (August 12, 2011).

TechFreedom, in association with the Family Online Safety Institute (FOSI), will host a lunch panel with a number of leading experts to discuss the FTC’s recently-proposed revisions to the Children’s Online Privacy Protection Act (COPPA). Opening remarks will be delivered by the Federal Trade Commission’s Phyllis Marcus, a Senior Staff Attorney at the Division of Advertising Practices. Afterwards, the panel will discuss the FTC’s proposals and what they mean for children, parents, Internet companies and innovation.

FOSI CEO Stephen Balkam will serve as master of ceremonies. The panel will be moderated by Berin Szoka, President of TechFreedom, and will include:

The event will take place at the Top of the Hill Banquet and Conference Center at the Reserve Officers Association (One Constitution Ave NE, Washington DC 20002) on Wednesday, October 12 from 12:30 to 2:30pm, and include a complimentary lunch. Space is limited so please click here to register.

In addition, you can let everyone else know you’ll be coming or watching the livestream (page will be updated when event begins) by joining the Facebook event page.

You can also keep up with the event by following the Twitter discussion at the #COPPA hashtag.

A year ago, I filed a joint amicus brief with the Electronic Frontier Foundation urging the Supreme Court to overturn California’s paternalistic law on the dangerous grounds that videogame depictions of violence constituted “obscenity” unprotected by the First Amendment. Fortunately, we won. Thus, the First Amendment protects all media, while parents have a variety of tools available to them to limit what content their kids can consume, or games they can play.

But in case you’re wondering what the world might look like had the decision gone the other way, check out the contrast between the US version of Maroon 5′s hit song “Misery” and the UK version. First, here’s the (raucous and sexy) US version:

Now, here’s the UK version, where the sexually suggestive parts remain (kids love that stuff) but all the “violent” parts have been replaced with, or covered by, ridiculous cartoon images. Really, it’s just too funny. The best part is where the knife she uses to stab the gaps between his fingers on the table has been replaced with a cartoon ice cream cone. Don’t try that at home, kids—you’ll make a chocolatey mess! Continue reading →

Hot-tempered police offers, pushover judges, and vague laws make for a dangerous combination. In July, a controversy erupted in Renton, Washington (a Seattle suburb) when the town’s police department launched a legal assault on an anonymous YouTube user for merely uploading a few sarcastic videos poking fun at the department’s scandals.

In an op-ed in The Seattle Times, Nicole Ciandella and I explain what happened in Renton and discuss the saga’s implications for constitutional rights in the digital age:

According to Washington state law, a person is guilty of criminal “cyberstalking” if he makes an electronic communication using lewd or indecent language with the intent to embarrass another person. In other words, a Washingtonian who creates a raunchy email message, blog post or Web video to embarrass a foe isn’t just playing dirty; he’s technically breaking the law. One YouTube user recently learned this lesson the hard way.

Last month, the scandal-ridden Renton Police Department launched a criminal cyberstalking investigation against a YouTube user known only as “MrFuddlesticks.” The user had uploaded a series of lewd, animated videos poking fun at recent allegations of wrongdoing by Renton police officers. In one video, a character talks about his civilian superior’s lack of law-enforcement experience; in another, characters discuss the impropriety of a police officer who slept with a murder suspect.

Even though none of MrFuddlesticks’ videos mention the city of Renton or any police officers by name, Renton police managed to convince a county judge to issue a warrant to compel Google, YouTube’s parent company, to disclose identifying information about MrFuddlesticks’ accounts, including credit-card details and even contents of Gmail messages.

You can read the rest of the essay here. (For more on the controversy, see Jacob Sullum at Reason’s Hit & Run; also see Mike Masnick at Techdirt. For an exploration of the case’s constitutional implications, see Eugene Volokh at The Volokh Conspiracy.)

Here on the TLF, we’ve repeatedly cautioned lawmakers about the dangers of criminalizing cyberstalking  (1234). Back in 2006, CNET’s Declan McCullagh explained why all Internet users should be worried about vague, overbroad cyberstalking laws. As the troubling actions of Renton’s finest illustrate, the potential for such laws to be abused is very real. Let’s hope lawmakers in Washington and in the numerous other states with cyberstalking laws on the books take a hard look at their laws.

 

My latest Mercatus Center white paper is entitled “Kids, Privacy, Free Speech & the Internet: Finding The Right Balance.” From the intro:

Concerns about children’s privacy are an important part of [the ongoing privacy debate]. The Children’s Online Privacy Protection Act of 1998 (COPPA) already mandates certain online-privacy protections for children under the age of 13. The goal of COPPA was to enhance parents’ involvement in their children’s online activities and better safeguard kids’ personal information online. The FTC is currently considering an expansion of COPPA, and lawmakers in the House of Representatives introduced legislation that would expand COPPA and apply additional FIPPS regulations to teenagers. Some state-based measures also propose expanding COPPA

While well-intentioned, efforts to expand privacy regulation along these lines would cause a number of unintended consequences of both a legal and economic nature. In particular, expanding COPPA raises thorny issues about online free speech and anonymity. Ironically, it might also require that more information about individuals be collected to enforce the law’s parental-consent provisions. There are better ways to protect the privacy of children online than imposing burdensome new regulatory mandates on the Internet and online consumers. Education, empowerment, and targeted enforcement of unfair and deceptive practice policies represent the better way forward.

The paper can be downloaded on SSRN, Scribd, or directly from the Mercatus website at the link above.

The Senate Judiciary Committee will hold a hearing on March 2 entitled “Helping Law Enforcement Find Missing Children.” While this is just about the most popular topic for a hearing one could imagine, and I’m as much in favor of finding missing children as anyone, I’m a little concerned to see Sen. Klobuchar presiding over a hearing that could lead to new proposals for Internet regulation. As a former prosecutor, it certainly makes sense for her to have taken over Judiciary’s Subcommittee on Administrative Oversight and the Courts. But she’s engaged in blatant fear-mongering about online child safety in the past, so I think it’s fair to say that anyone listening to this hearing should take it with at least a grain of salt—especially if the hearing calls for new mandates for internet intermediaries to address a supposed “crisis.”

Last summer, as I noted, the Senator sent an angry letter to Facebook demanding the site require “a prominent safety button or link on the profile pages of users under the age of 18″ that included the following:

Recent research has shown that one in four American teenagers have been victims of a cyber predator.

The letter didn’t actually cite anything, so it’s not clear what research she was relying on, as I noted:

The 25% statistic is particularly incendiary, suggesting a nationwide cyber-predation crisis—perhaps leading the public to believe 8 or 9 million teens have been lured into sexual encounters offline. Perhaps the Senator considers every cyber-bully a cyber predator—which might get to the 25% number. But there are two serious problem with that moral equivalence.

First, to equate child predation with peer bullying is to engage in a dangerous game of defining deviancy down. Predation and bullying are radically different things. The first (sexual abuse) is a clear and heinous crime that can lead to long-term psychological damage. The second might be a crime in certain circumstances, but generally not.  And it is even less likely to be a crime when it occurs among young peers, which research shows constitutes the vast majority of cases. As Adam Thierer and I noted in our Congressional testimony last year, there are legitimate concerns about cyberbullying, but it’s something best dealt with by parents and schools rather than prosecutors (like Klobuchar in her pre-Senate career).

I went on to cite summaries of the statistics on actual child predation rates—not even close to Sen. Klobuchar’s figure. If she had made these unsubstantiated claims in an academic paper, she would have been roundly criticized by her peers in the “reality-based community.” Yet in Congress, a willingness to sensationalize seems to have little consequence—other than a promotion to a larger bully pulpit from which to harangue. With her experience, she could be an an excellent Chairman and leader on these issues.  I only hope it starts with a commitment to accuracy, lest unsubstantiated concerns about child safety lead to bad policy-making while real and substantiated concerns are under-emphasized.


FTC Chairman says will probe Apple in-app purchases for marketing practices: http://wapo.st/fX3uWnless than a minute ago via TweetDeck


*The Washington Post’s* [Cecilia Kang](http://voices.washingtonpost.com/posttech/2011/02/ftc_chairman_to_probe_apple_ip.html) reports that the FTC will probe Apple for in-app purchases marketing practices. According to Kang,

>FTC Chairman Jon Leibowitz wrote in a letter to Rep. Ed Markey (D-Mass.) that the practice of “in-app purchases” for certain applications on Apple iPhones, iPads and iPods raised concerns that consumers may not fully understand the ramifications of those charges. *The Washington Post* wrote about hefty charges amassed by children using Apple device games that public interest groups said should not be included in software geared for children. Some parents said their children didn’t understand the difference between real and pretend purchases for items such as $99 barrels of Smurfberries on the Capcom Interactive game Smurfs Village.

I’ll skip the question of whether it’s the proper role of the federal government to be a surrogate parent to children given iPhones by their real parents. Instead I’ll simply say that I don’t know how much easier we can expect Apple to make it for parents to supervise their children.

- **Passwords** All purchases on iOS devices require the user to enter a password before it can be completed. Don’t give your child the password and you don’t have to worry about charges.

- **Allowances** If you do want to allow your child to make purchases, but what to set some limits, Apple makes it easy to create an [iTunes allowance](http://support.apple.com/kb/ht2105) account that allows a parent to specify an amount that is added to a child’s account each month. Once the child uses the amount, he can’t spend any more.

What more do we want Apple to do?

Some Sense on Sexting

by on February 10, 2011 · 10 comments

Bucking a trend seen in other states, Texas lawmakers are taking steps to separate teen “sexting,” the sending and receiving sexually explicit photos via cell phone or email, from child pornography.

A bill proposed by State Sen. Kirk Watson of Austin, and backed by Texas State Attorney General Greg Abbott, would classify sexting as a Class C misdemeanor for first time violators under 18. Under current law, sexting is a Class C felony carrying penalties of two to 10 years in prison, a fine up to $10,000 and lifelong registration as a sex offender.

The Lone Star State deserves credit for taking a sensible approach to addressing what is without doubt stupid behavior that comes with serious consequences, but is far from the predation that child pornography laws are intended to target.

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Recent media attention has resurrected the notion that criminal background checks for online dating sites are helpful and should even be required by law. Sunday’s front page article in the New York Times described how companies selling background checks can “unmask Mr. or Ms. Wrong.” And today’s Good Morning America featured a segment called “Online Dating: Are you Flirting with a Felon?”

I was interviewed by both the Times and Good Morning America to say that these background checks are superficial, create a false sense of security, and that government should never mandate these for online dating sites. First of all, I should say that I’m personally involved in this issue. I met my wife on Match.com. We didn’t screen each other, at least not for a criminal past. I remember doing a simple search on her screen name however, and for a while thinking she could be someone who she wasn’t, though.

But for fun, I did a postmortem background check on myself, just to see what my now wife would have seen. First, I went to Intelius and spent $58 (warning: there’s a constant barrage of confusing upsells) to see criminal, civil judgment, property, name, telephone and social networking data. The result: nothing harmful thankfully! But also nothing particularly helpful, either. And the report included a family member that isn’t, and left out my brother that is. Then I went to MyMatchChecker and ordered the basic level screening (the two most expansive products–“Getting Serious” and “All About Me”–require social security numbers, which I doubt most people will not learn about the other until they actually get married). The site made it easy to not include all relevant info, and I didn’t, so there’s a delay on my check. But let’s assume it’s all good too (ahem).

So would my wife have used the absence of a negative history to assume I was a good person? Well, she shouldn’t have. Although these criminal screenings can help in some situations, they still have some serious shortcomings. They result in false negatives when criminal records don’t appear or may not include felony arrests that were plead down to misdemeanors.

And these sort of criminal screenings are not very inclusive–at all. Continue reading →