California – Technology Liberation Front https://techliberation.com Keeping politicians' hands off the Net & everything else related to technology Thu, 03 Apr 2025 23:20:10 +0000 en-US hourly 1 6772528 6 Ways Conservatives Betray Their First Principles with Online Child Safety Regulations https://techliberation.com/2022/09/20/6-ways-conservatives-betray-their-first-principles-with-online-child-safety-regulations/ https://techliberation.com/2022/09/20/6-ways-conservatives-betray-their-first-principles-with-online-child-safety-regulations/#comments Tue, 20 Sep 2022 19:42:00 +0000 https://techliberation.com/?p=77048

I’ve been floating around in conservative policy circles for 30 years and I have spent much of that time covering media policy and child safety issues. My time in conservative circles began in 1992 with a 9-year stint at the Heritage Foundation, where I launched the organization’s policy efforts on media regulation, the Internet, and digital technology. Meanwhile, my work on child safety has spanned 4 think tanks, multiple blue ribbon child safety commissions, countless essays, dozens of filings and testimonies, and even a multi-edition book.

During this three-decade run, I’ve tried my hardest to find balanced ways of addressing some of the legitimate concerns that many conservatives have about kids, media content, and online safety issues. Raising kids is the hardest job in the world. My daughter and son are now off at college, but the last twenty years of helping them figure out how to navigate the world and all the challenges it poses was filled with difficulties. This was especially true because my daughter and son faced completely different challenges when it came to media content and online interactions. Simply put, there is no one-size-fits-all playbook when it comes to raising kids or addressing concerns about healthy media interactions.

Something Must Be Done!

My personal approach, as I summarized in my book on these issues, was to first and foremost do everything in my power to (a) keep an open mind about new media content and platforms, and (b) ensure an open line of ongoing communication with my kids about the issues they might be facing. Shutting down conversation or calling for others to come in and save the day were the worst two options, in my opinion. As I summarized in my book, “At the end of the day, there is simply no substitute for talking to our children in an open, loving, and understanding fashion about the realities of-this world, including the more distasteful bits.” This was my Parental Prime Directive, if you will. I just always wanted to make sure that my kids felt like they could talk to me about their issues, no matter how varied, horrible, or heart-breaking those problems might be.

When talking with other parents through the years, I’ve heard about their own unique concerns and struggles. Every family faces different challenges because no two kids or situations are alike. Moreover, the challenges can feel overwhelming in our modern world of information abundance, which is flush with ubiquitous communications and media options. Sometimes these parental frustrations can fester and grow into a sort of rage until you finally hear folks utter that famous phrase: Something must be done! And that “something” is often some sort of government regulation “for the children.”

Again, I get it. When all your best efforts to help or protect your kids don’t seem to work according to plan, it’s only natural to call for help. But there are very serious problems associated with calling on government for that help. When legislators and regulators are asked to play the role of National Nanny, it comes with all the same baggage that accompanies many other efforts by the government to intervene in our lives or control what people or organizations can say or do.

Conservative Contradictions

These are particularly sensitive issues for many conservatives, both because conservatives tend to have more heightened concerns about media content and online safety issues, and also because the steps they often recommend to address these issues can quickly come into conflict with their own first principles.

Let me run through six ways that support for media content controls and child safety regulations can sometimes run afoul of conservative principles.

1) It’s a rejection of personal responsibility

Again, I understand all too well how hard parenting can be. But that does not mean we should abdicate our parental responsibilities to the State. Conservatives have spent decades fighting government when it comes to broken schools and the supposed brainwashing many kids get in them. The rallying cry of conservatives has long been: Let us have a greater say in how we raise and educate our children because the State is failing us or betraying our values.

Thus, when conservatives suggest that the State should be making decisions for us as it pertains to anything the government says is a “child safety” issue, there is some serious cognitive dissonance going on there. In his humorous Devil’s Dictionary, Ambrose Bierce jokingly defined responsibility as, “A detachable burden easily shifted to the shoulders of God, Fate, Fortune, Luck or one’s neighbor. In the days of astrology it was customary to unload it upon a star.” For parental responsibility to actually mean something, it has to be more than a “detachable burden” that we unload upon government.

2) It’s an embrace of the administrative state & arbitrary rule by unelected bureaucrats

Beyond the classroom, conservatives have long been concerned about the specter of massive administrative agencies and armies of unelected bureaucrats controlling our lives from the shadows. I’ve spent decades working with conservative organizations and scholars trying to get the administrative state under some control to scale back its enormous power, arbitrary edicts, and costly burdens. Over-criminalization has become such a problem that, according to the Heritage Foundation, “regulatory offenses… have proliferated to the point that, literally, nobody knows how many federal criminal regulations exist today.” We’re all criminals of some sort in the eyes of the modern regulatory state.

Yet, when conservatives advocate the expansion of the administrative state through new “online safety” regulations, they are just making the over-criminalization problem worse, including by treating our own children as guilty parties for simply trying to access the primary media platforms of their generation and interact with their friends there. For example, calls to ban all teens from social media until they’re 18 would result in the most massive “forbidden fruit” nightmare in American history, with every teen suddenly becoming a criminal actor and working together to tunnel around bans using the same sort of VPNs and evasion technologies people in China and other repressive nations use to get around over-bearing speech policies. [See: “Again, We Should Not Ban All Teens from Social Media”]

Needless to say, all this regulation and bureaucratic empowerment would have massive negative externalities for online freedom more generally as the era of “permissionless innovation” is replaced by a new age of permission-slip regulation.

3) It’s a rejection of the First Amendment & free speech rights

Conservatives have spent many decades pushing for greater First Amendment-based freedoms as it pertains to religious liberty and or organizational/corporate speech issues. Thus, when conservatives seek to undermine free speech principles and jurisprudence in the name of child safety, it could undo everything conservatives have been fighting to accomplish in those other contexts.

Conservatives are understandably upset with some social media platforms for being too over-zealous with certain types of speech takedowns or de-platformings. But two wrongs don’t make a right, and they should not be calling on Big Government to be imposing its own editorial judgments in place of private actors. [See: “The Great Deplatforming of 2021“ and “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer.“]

4) It’s a rejection of property rights and freedom more generally

Related to the previous two points, conservatives have long upheld the sanctity of property rights in many different contexts. This includes the property rights that private establishments enjoy under the Constitution to generally decide how to structure their operations, who they will do business with, and how they will do so. Private organizations and religious institutions possess not only free speech rights in this regard, but property and contractual rights, too.

But when it comes to “child safety” mandates, some conservatives would toss all this out the window and undermine those rights, replacing them with burdensome regulatory mandates that tell private parties how to conduct their affairs. Again, there’s a lot of cognitive dissonance going on here and it could have serious blowback for conservatives when the property / contractual rights of other people or organizations are undermined on similar grounds.

5) It’s an embrace of frivolous lawsuits & the trial lawyers that bring them

The last time I checked, trial lawyers were not exactly the most conservative-friendly constituency. For many decades, conservatives have looked to advance tort reform, limit junk science and frivolous lawsuits, and make sure that the courts don’t engage in excessive judicial activism.

Unfortunately, many of the child safety regulations being proposed today would empower the regulatory state and trial lawyers at the same time. Many of the bills being floated open the door to open-ended litigation and potentially punishing liability for private platforms — and not just against deep-pocketed “Big Tech” companies. The fact is, once conservatives open the litigation floodgates based on amorphous accusations of potential online safety harms, they will be empowering the tort bar (one of the biggest supporters of the Democratic Party, no less) to launch a legal jihad against any and every media platform out there. Good luck putting that genie back in the bottle once you unleash it.

6) It’s an embrace of the same moral panic arguments your parents leveled against you

How quickly we forget the accusations our own parents and others leveled against us as children. Remember when video games were going to make us a lost generation of murderous youth? Or when rap and rock-and-roll music were going to send us straight to hell? Today, those kids are all grown up and trying to tell us that they are fine but it’s this latest generation that is doomed. It’s just an endless generational cycle of moral panics. [See: “Why Do We Always Sell the Next Generation Short?” and “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics”] Today’s conservatives need to remember that they, too, were once kids and somehow muddled through to adulthood.

The “3-E” Approach Is the Better Answer

At this point, some of the people who’ve read this far are screaming at the screen: “So, are you saying we should just do nothing!?”

Absolutely not. But it is important that we consider less onerous and more practical ways to address these challenging issues without falling prey to Big Government gimmicks that would undermine other important principles. We should start by acknowledging that there are no easy fixes or silver-bullet solutions. The plain truth of the matter is that the best solutions here can seem messy and unsatisfying to many because they require enormous ongoing efforts to mentor and assist our kids at a far deeper level than some folks are comfortable with.

For example, it is just insanely uncomfortable to have to speak with your kids about online bullying or harassment, pornography, violence in movies and games, hate speech, and so on. And I haven’t even mentioned the hardest things to talk to kids about: The daily news of the real world: wars, violence, tragic accidents, famines, etc. Honestly, the hardest conversations I’ve had to have with my kids were those about school shootings. By comparison, many other discussions about online content and interactions were much easier. To the extent that we’re attempting to measure and address negative media affects, I firmly believe that there a few things in this world more horrifying to kids — or harder to talk with them about — than the first 10 minutes of what’s on cable news each hour of the day.

Regardless, whether we’re talking about the potential “harms” or mass media or online content, we cannot pretend there exists a simple solution to any of it. Here’s the better approach.

I recently authored a study for the American Enterprise Institute on, “Governing Emerging Technology in an Age of Policy Fragmentation and Disequilibrium.” It was my attempt to sketch out a flexible, pragmatic, bottom-up set of governance principles for modern technology platforms and issues. In that report, I noted how “[t]he First Amendment constitutes a particularly high barrier to the use of hard law in the United States,” and that court challenges were likely to continue to block many of the regulatory efforts being floated today, just as been the case countless times before in recent decades. Thus, we need to have backup approaches to online safety beyond one-size-fits-all regulatory Hail Mary passes.

I have described that backup plan as the “3-E” approach or “layered approach” to online safety:

  • Empowerment of parents: Parental controls cannot solve all the world’s problems. It’s better to view them as helpful speed bumps or emergency alerts for when things are going badly for your child. In the old days, we placed a lot of faith in filtering, and that still has a role along with other tools that help place some reasonable limits not only on content but also overall consumption. But the best types of parental empowerment are those that force conversations between parents and kids by allowing reasonable monitoring to happen that is scaled by age (as in more limits for younger kids until they are gradually relaxed over time). And other carrot-and-stick tools and approaches are incredibly useful in helping parents place smart limits on youth activity and overall consumption.
  • Education of youth: Education is the strategy with the most lasting impact for online safety. Education and digital literacy provide skills and wisdom that can last a lifetime. Specifically, education can help teach both kids (and adults!) how to behave in — or respond to — a wide variety of situations. Building resiliency and encouraging healthy interactions is the goal.
  • Enforcement of existing laws: There are many sensible and straightforward laws already in place that address more concrete types of harm and harassment. And we have lots of laws pertaining to fraud and unfair and deceptive practices. Sometimes these rules can be challenging (and time-consuming) to enforce, but they constitute an existing backstop that can handle most worst-case scenarios when other less-restrictive steps fall short. And we should certainly tap these existing remedies before advancing unworkable new regulatory regimes.

I noted in my AEI study that, between 2000 and 2010, six major online-safety task forces or blue-ribbon commissions were formed to study online-safety issues and consider what should be done to address them. Each of them recommended some variant of the “3-E” approach as they encouraged a variety of best practices, educational approaches, and technological-empowerment solutions to address various safety concerns. Self-regulatory codes, private content-rating systems, and a wide variety of different parental-control technologies all proliferated during this period. Many multi-stakeholder initiatives and other organizations were also formed to address governance issues collaboratively. There are countless groups doing important work on this front today, including my old friends at the Family Online Safety Institute (FOSI) among many others.

These organizations push for a layered approach to online safety and work closely with educators, child development experts, and other academics and activists to find workable solutions to new online safety challenges as they arise. Their work is never done, and at times it can feel overwhelming. But, again, it’s the nature of the task at hand. We all must work together to continuously devise new and better approaches to addressing these challenges, because they will be endless. But let’s please not expect that we can unload these responsibilities on government and expect regulators to somehow handle it for us.

Do the Ends Justify the Means When it Comes to Media & Content Control?

I could be wasting my breath here because I’ve been attempting to appeal to conservative principles that may be rapidly disappearing from the modern conservative movement. Donald Trump radically disrupted everything in American politics, but especially the Republican Party. Many so-called national conservatives now live by Trump’s central operating principle: The ends justify the means. The ends are “owning the libs” in any way possible. And “the libs” include not only anyone on the Left of the political spectrum, but even those individuals and institutions that Trumpian conservatives believe are “the enemy” and controlled by “liberal interests.” By their definition, this now includes virtually all large media and technology companies and platforms. Thus, when we turn to the means, it’s increasingly the case that just about anything goes — including many traditional conservative principles.

To see how far we’ve come, recall what President Ronald Reagan said 35 years ago when vetoing an effort to reinstate the Fairness Doctrine. “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and compe­tition that the First Amendment sought to guarantee,” he said. At the time, President Reagan was confronted with some of the same arguments we hear today about media being too biased or conservatives not getting a fair shake. But he called upon his fellow conservatives to reject the idea that Big Government was the solution to such problems.

Unfortunately, Mr. Trump and some of his most loyal followers and even some major conservative groups today have largely given up on this logic and instead embraced regulation. While Trumpian conservatives love to decry everyone they oppose as “communists,” ironically it is this same group that is embracing a sort of communications collectivism as it pertains to modern media control. In the Trumpian worldview, media and tech platforms are useful only to the extent they carry out the will of the party — or at least the man on top of it.

These national conservatives have made a horrible miscalculation. Feeling aggrieved by Big Tech “bias,” or just feeling overwhelmed by things they don’t like about online platforms, they’ve decided that two wrongs make a right. In reality, two political wrongs never make a right, but they almost always combine to make government a lot bigger and more powerful.

It’s an incredibly naïve gamble almost certainly destined to fail, but they should ask themselves what it means if it works. This endless ratcheting effect will result in comprehensive state control of most channels of communications and information dissemination. Is this a game that you really think you can play better than the Lefties?

I’ll close by returning to one of Reagan’s favorite jokes. He always used to say that, “The nine most terrifying words in the English language are: I’m from the government and I’m here to help.” I would suggest that an even scarier version of that line would be, “We’re from the government and we’re here to help you parent your kids.”

Don’t let it be you uttering that line.

______________

Additional Reading

· Adam Thierer, “Again, We Should Not Ban All Teens from Social Media”

· Adam Thierer, “Why Do We Always Sell the Next Generation Short?”

· Adam Thierer, “The Classical Liberal Approach to Digital Media Free Speech Issues”

· Adam Thierer, “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics”

· Adam Thierer, “Left and right take aim at Big Tech — and the First Amendment“

· Adam Thierer, “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“

· Adam Thierer, “Ongoing Series: Moral Panics / Techno-Panics”

· Adam Thierer, “No Goldilocks Formula for Content Moderation in Social Media or the Metaverse, But Algorithms Still Help”

· Adam Thierer, “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“

· Adam Thierer, “Conservatives & Common Carriage: Contradictions & Challenges“

· Adam Thierer, “The Great Deplatforming of 2021“

· Adam Thierer, “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“

· Adam Thierer, “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“

· Adam Thierer, “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“

· Adam Thierer, “Sen. Hawley’s Moral Panic Over Social Media“

· Adam Thierer, “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“

· Adam Thierer, “The Surprising Ideological Origins of Trump’s Communications Collectivism“

· Adam Thierer, Parental Controls & Online Child Protection: A Survey of Tools and Methods (2009).

]]> https://techliberation.com/2022/09/20/6-ways-conservatives-betray-their-first-principles-with-online-child-safety-regulations/feed/ 3 77048 Running List of My Research on AI, ML & Robotics Policy https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/ https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/#respond Fri, 29 Jul 2022 12:51:54 +0000 https://techliberation.com/?p=77020

[last updated 4/3/2025 – Check my Medium page for latest posts]

This a running list of all the essays and reports I’ve already rolled out on the governance of artificial intelligence (AI), machine learning (ML), and robotics. Why have I decided to spend so much time on this issue? Because this will become the most important technological revolution of our lifetimes. Every segment of the economy will be touched in some fashion by AI, ML, robotics, and the power of computational science. It should be equally clear that public policy will be radically transformed along the way.

Eventually, all policy will involve AI policy and computational considerations. As AI “eats the world,” it eats the world of public policy along with it. The stakes here are profound for individuals, economies, and nations. As a result, AI policy will be the most important technology policy fight of the next decade, and perhaps next quarter century. Those who are passionate about the freedom to innovate need to prepare to meet the challenge as proposals to regulate AI proliferate.

There are many socio-technical concerns surrounding algorithmic systems that deserve serious consideration and appropriate governance steps to ensure that these systems are beneficial to society. However, there is an equally compelling public interest in ensuring that AI innovations are developed and made widely available to help improve human well-being across many dimensions. And that’s the case that I’ll be dedicating my life to making in coming years.

Here’s the list of what I’ve done so far. I will continue to update this as new material is released:

2025

2024

2023

2022

2021 (and earlier)

]]> https://techliberation.com/2022/07/29/running-list-of-my-research-on-ai-ml-robotics-policy/feed/ 0 77020 San Francisco, Entrepreneurs & the Cost of Doing Business https://techliberation.com/2019/10/24/san-francisco-entrepreneurs-the-cost-of-doing-business/ https://techliberation.com/2019/10/24/san-francisco-entrepreneurs-the-cost-of-doing-business/#comments Thu, 24 Oct 2019 20:26:19 +0000 https://techliberation.com/?p=76624

2019 Doing Business North America Report CoverOne of the keys to improving the standard of living for citizens is to make sure it isn’t too difficult for them to form new businesses or find good jobs. Unfortunately, some governments make that process harder than it should be. San Francisco serves as a prime example. An important new report just out from Arizona State University proves that.

“Doing Business North America,” is a wide-ranging comparison of six types of business regulations in Canada, Mexico and the United States. The almost 200-page report was released by the Center for the Study of Economic Liberty, a joint endeavor of the W. P. Carey School of Business and the School of Civic and Economic Thought and Leadership. The effort was spearheaded by my old colleague Stephen Slivinski and a team of other scholars and students at the Center.

The report is a major undertaking that examines how 115 North American cities rank overall, as measured by six categories: starting a business, employing workers, getting electricity, registering property, paying taxes, and resolving insolvency. Among all U.S. cities, San Francisco ranks dead last with a score of 59.04 out of a 100. Of the 115 cities evaluated in Canada, Mexico, and the U.S., San Fran ranked 77th. By comparison, Oklahoma City ranked first in overall ease of doing business with a score of 85.22.

Shockingly, things appear ready to get a lot worse for the citizens of San Francisco. In my latest column for the American Institute for Economic Research, I discuss the city’s newly proposed Office of Emerging Technology.  This new bureaucracy, which would be within the city’s public works department, would impose a new permitting system on anyone looking to launch new technologies that might somehow use public rights-of-way, such as sidewalks and roads. Innovators who fail to pursue and receive the appropriate permission slips will face civil and criminal penalties.

As I note in my column, this new permitting office “would discourage entrepreneurial efforts, consumer choice, and new employment opportunities,” because:

Whenever bureaucrats are in charge of an innovation-by-permission-slip regime, a line will form to get permits on the best terms possible. Whoever is the most clever and well-connected will get access first. Scrappy start-ups won’t have the resources to play the lobbying game or navigate the costly and complicated permitting system. Innovation will suffer.

Citizens respond to incentives and when laws and regulations raise the cost of doing business it stifles the entrepreneurial spirit. The problem with our ever-expanding “permission society,” as Goldwater Institute attorney Timothy Sandefur describes it in his latest book, is that “when told that they will have to undergo expensive and time-consuming permit processes before being allowed to pursue a new idea, many simply give up without trying.”

Or, they relocate. As I note in my column,

Innovation arbitrage is a phenomenon that the city should be worried about. It refers to the movement of ideas, innovations, or operations to jurisdictions that provide a legal and regulatory environment more hospitable to entrepreneurial activity. Innovation arbitrage is becoming easier in the Internet Age than it was in the past. Many cities and states are experiencing an outflow of talent because of onerous policy regimes that prioritize red tape and vague notions of the public interest over worker opportunities and consumer choice. If San Fran’s new anti-innovation office is established, it wouldn’t be surprising to see many firms and individuals relocate to areas with greater freedom to experiment.

It may already be happening for other reasons. For example, Stripe, one of the world’s most valuable startups, is apparently considering moving out of the city. According to the San Francisco Chronicle, “The payments processing company, valued at $35 billion, is considering moving about 10 miles away to South San Francisco, said two people familiar with the company’s potential plans.” Apparently, Stripe is considering the move due largely to the lack of available office space and the seeming unwillingness of the City to address chronic office and housing shortages.

So, if you add together burdensome permitting processes, high costs of housing and office space, and high taxes (with new ones being proposed all the time), you get a recipe for economic stagnation and a lowered standard of living for your citizenry. What makes this particularly sad in San Francisco’s case is that the city is, at once, brimming with entrepreneurial potential but also chock full of serious social problems. Economic opportunity can be part of the solution to some of those problems, but opportunities of entrepreneurial dynamism won’t happen so long as the city makes it so costly to form new businesses and pursue new jobs. Hopefully, San Francisco and other cities learn this lesson and relax burdens to innovation and new business formation.

]]> https://techliberation.com/2019/10/24/san-francisco-entrepreneurs-the-cost-of-doing-business/feed/ 1 76624 Explaining the California Privacy Rights and Enforcement Act of 2020 https://techliberation.com/2019/10/02/explaining-the-california-privacy-rights-and-enforcement-act-of-2020/ https://techliberation.com/2019/10/02/explaining-the-california-privacy-rights-and-enforcement-act-of-2020/#comments Wed, 02 Oct 2019 16:41:26 +0000 https://techliberation.com/?p=76610

California’s recently enacted digital privacy legislation, the “California Consumer Privacy Act,” may be getting a sequel in the form of an initiative called the “California Privacy Rights and Enforcement Act of 2020.” While the fallout of CCPA has yet to be seen, since the Act does not go into effect until next year and the regulations governing its application have yet to be finalized, CPREA promises to double-down on its approach by creating yet more largely superfluous – and hugely expensive – digital “rights”.

How did we get here? Well, CCPA, the original, was the brainchild of a wealthy real estate investor named Alastair Mactaggart who, inspired by a cocktail party conversation, used California’s initiative process as a cudgel to get the full attention of the legislature in Sacramento. The body was given an ultimatum, negotiate and pass privacy legislation or Mactaggart would place his creation on the ballot.

Instead of running the risk of complicating a 2018 midterm ballot in which Democrats were slated to make huge gains, the Democratic super-majorities in Sacramento chose to pass comprehensive privacy legislation in a matter of days, thereby utterly transforming the way in which digital commerce occurs in the Golden State. Unsurprisingly, the result of doing so was that California became subject to a technically unworkable mess of regulation that necessitated an entire year of subsequent legislative work to it clean-up.

Now, in the wake of that saga, and in spite of a largely successful campaign in the state capital, Mactaggart has grown weary of the legislative process and crafted another initiative to expand and refine the vision of privacy that he would like to impose on America’s most populous state. Only, this time, it appears that he has no intention of working through the legislative process. This time, Mactaggart is going to be a one-man policy decider.

As released, the initiative is equal parts privacy extremism and cynical-politics. Substantively, some will find elements to applaud in the CPREA, between prohibitions on the use of behavioral advertising and reputational risk assessment (all of which are deserving of their own critiques), but the operational structure of the CPREA is nothing short of disastrous. Here are some of the worst bits:

  • Amendments (Section 24) – this section would effectively prevent California from changing its approach to privacy without another initiative, and may even prevent the sort of subsequent legislative clean-up that was necessary to make CCPA at all workable in the first place. A straightforward lesson in exactly what happens when such provisions are passed is available in the form of 1988’s Proposition 103, which has a similar provision that has effectively prevented innovation in California’s insurance market. Wonder why property insurance premiums are skyrocketing in the wake of the state’s fires and why there has been no appreciable development in the auto insurance sector? Look no further than this clause.

  • California Privacy Protection Agency (Section 23) – to enforce the Act, the CPREA creates a new government agency with the power to audit firm’s approaches to security and to fine them, in the amount of $2,500 per/unwitting-transgression, should they be found in violation. While pointless (why have an Attorney General anyway?), that’s not entirely  unusual. What is problematic is that the new agency’s entire existence would be funded directly by fines instead of the general fund, thereby creating an incentive to use broadly defined powers to search for violations to sustain its very existence. What’s more, the suggested statute of limitations in the Act is long, the right to cure is curtailed, and the agency is directed to fund – annually – consumer groups to “promote and protect consumer privacy”. All of this represents a devil’s cocktail of bad incentives for regulatory overreach.

  • Duties of Businesses that Collect Personal Information (Section 4) – new business-side duties in the CPREA will lead to compliance headaches without achieving clear benefits for consumers. For instance, the Act includes an obligation to maintain “reasonable security,” a standard without definition, but readily enforceable by a fine-inclined agency. Similarly troubling, the definition of “personal information” included in the Act likely encompasses a person’s likeness. Which, in consort with the Act’s other requirements, means that when a Californian walks into a brick-and-mortar retailer using security cameras, the Act would require firms to provide them with notice. In effect, this requirement will function as an enforcement trap. The only good to come of it will be the resulting boom in the state’s sign making industry as notices proliferate in a manner that makes Proposition 65’s utterly pointless chemical warnings appear reasonable.

Fortunately, there is time yet for the CPREA to be fought off. Californians, and industry within the state, could see to the direct electoral defeat of CPREA and/or the passage of another initiative designed to more directly remedy consumer harms. Doing so will require not only clear communication about the costs of CCPA and CPREA alike, but also a recognition that voters do want to see something, anything, done related to privacy. Give them a moderate alternative and a reason to choose it, and Mactaggart’s status as de facto state privacy administrator may come to an end.

]]> https://techliberation.com/2019/10/02/explaining-the-california-privacy-rights-and-enforcement-act-of-2020/feed/ 2 76610 The Problem of Patchwork Privacy https://techliberation.com/2018/08/15/the-problem-of-patchwork-privacy/ https://techliberation.com/2018/08/15/the-problem-of-patchwork-privacy/#comments Wed, 15 Aug 2018 15:43:18 +0000 https://techliberation.com/?p=76345

There are a growing number of voices raising concerns about privacy rights and data security in the wake of news of data breaches and potential influence. The European Union (EU) recently adopted the heavily restrictive General Data Privacy Rule (GDPR) that favors individual privacy over innovation or the right to speak. While there has been some discussion of potential federal legislation related to data privacy, none of these attempts has truly gained traction beyond existing special protections for vulnerable users (like children) or specific information (like that of healthcare and finances). Some states, notably including California, are attempting to solve this perceived problem of data privacy on their own, but often are creating bigger problems and passing potentially unconstitutional and often poorly drafted solutions.

All states have at least minimal data breach laws and the quality of such laws both in effectiveness and impact on innovation varies. Normally states work as “laboratories of democracy” and are able to test out different regulatory schemes for new technologies with less demosclerosis than the federal process. Similarly, they are better able to account for different preferences in tradeoffs, and in some cases, they are more able to remove barriers to entry by reforming existing areas of law like licensure or products liability to accommodate a new technology. In areas like autonomous vehicles, telemedicine, and drone policy states are often leading the way to embrace these new technologies. However, a new trend in some states to formally regulate the Internet through laws aimed at data privacy or net neutrality to achieve what they perceive as failures of the federal government to act ignores the potential damage to the permissionless federal policy that made the Internet what it is today.

California has passed the California Consumer Privacy Act (CCPA) and other states are likely to follow suit. Unfortunately, these type of statutes are likely to impact innovation in a misguided attempt to correct issues with data privacy. However, these statutes could reach far beyond state borders and illustrate the potential risks of a fifty-state privacy patchwork.

These laws will likely lead to a problem in identifying what entities are covered by the privacy legislation. California’s recent CCPA defines those who are required to comply so ambiguously that a reasonable interpretation would imply the law applies so long as a single user is a resident of California whether they are accessing the website from California or not and no matter if the website purposefully avails itself of California or not.

State laws also unintentionally make it more difficult for small, local companies to compete with Internet giants. Large companies like Google and Facebook can afford the cost of additional compliance but it is more difficult for smaller and mid-size companies to cover such costs. As a result, if they are able to comply they often are more limited in their ability to fund future innovation as they instead invest resources in compliance. In a world of state based privacy laws, it’s inevitable that some would impose contradictory standards and as a result might actually make it worse rather than better as companies pick and choose which states to comply with. What is already playing out in Europe where small and mid-size companies are choosing to exit the market rather spend the cost in complying with new restrictions could play out for states with more restrictive data requirements. And it’s not just fledging startups that have difficulty, the L.A. Times and Chicago Tribune have been unavailable to Europeans since GDPR became effective as they had not completed compliance by the May deadline. In some cases companies have founded it easier to block or exclude effected users than to comply with onerous data restrictions.

In some cases, states making exceptions for companies below a certain number of user also may discourage investment at a certain point. For example the CCPA kicks in at 50,000 users. As a result there is a large marginal costs for gaining 50,001 st user as compliance with the standards are immediately required. This might lead to caps on certain newer platforms or encourage innovators to look for loopholes to avoid the high cost of compliance early on.

But even if states were able to create a sort of interstate compact that created an effectively uniform state level set of privacy laws, it would still be an inappropriate use of federalism for the state to govern data privacy due to its de facto impact on interstate commerce and the First Amendment.

The Internet by its very nature transcends states borders and any state laws aimed at impacting privacy are likely to have national and global impact. This is not what is intended by federalism and not just the case for states like California with a significant amount of tech companies. If there are 50 different state laws than new online intermediaries will have  develop 50 different compliance policies or the most restrictive state will become the de facto standard for everyone left in the industry. As Jeff Kosseff points out, a world of 50 variations of the same privacy law based on users would require out-of-state content creators would likely require significant changes to their existing systems and place an undue burden on content creators and users.

Additionally, there are legitimate concerns about the First Amendment rights to share information that may be in conflict with the way privacy rights are enforced under proposed laws. Requiring otherwise lawful content to be removed silences the speaker. For example, if a friend posts a picture from a party that includes you and you ask all your data be removed is that data yours or your friends. To remove the data would silence a speaker and value one individual’s right to privacy over another’s right to speak. In some cases it seems such tradeoffs could be reasonable such as speech that is not just merely offensive but causes clear harm to the person it is about such as revenge porn, but in many cases it is far less clear. Unfortunately when faced with the crippling potential sanctions of such laws, many companies take a remove first question second approach as has been seen with copyright under the Digital Millennium Copyright Act (DMCA).

While there is a growing voice for data privacy, there seems to be little willingness on the part of consumers or regulators to make such tradeoffs. The so called “privacy paradox” where people do not undertake the necessary actions to match with their stated desire for increased data privacy and many willingly admit they prefer the convenience they receive in exchange for their data. If action on data privacy is necessary, it should occur at a federal level to avoid the patchwork problems that would result from inconsistent state laws. Any law must be narrowly tailored to respect the First Amendment rights of both users and platforms. We also must be aware of the tradeoffs that we are making between innovation and privacy when we see calls for a US GDPR. At the same time we should be concerned that as a result of the heavy burden of compliance with GDPR, a more regulated Internet where only those who can afford to comply survive may replace the permissionless start-up American driven version.

While federal preemption may be needed to address a patchwork of state privacy laws, we should be cautious and seek to avoid the mistakes of GDPR type privacy laws that place a value on individual privacy above innovation and knowledge sharing. Simple steps in providing more transparent information and requirements for notification are more likely to allow individuals to make the privacy choices that best fit their needs.

A privacy patchwork of state based “solutions” is likely to create more problems than it solves. The real solutions to our current dilemmas will come from conversations about how we balance the rewards of innovation with individual preferences for privacy.

]]> https://techliberation.com/2018/08/15/the-problem-of-patchwork-privacy/feed/ 2 76345 Should California Rule the Internet? https://techliberation.com/2013/10/08/should-california-rule-the-internet/ https://techliberation.com/2013/10/08/should-california-rule-the-internet/#comments Tue, 08 Oct 2013 15:21:52 +0000 http://techliberation.com/?p=73648

Michelle Quinn of Politico was kind enough to call me a few days ago and ask for comment for her story about “California Driving Internet Privacy Policy.” Quinn’s article offers an excellent overview of how the Golden State is gradually taking on a greater regulatory role for the Net, at least as it pertains to matters of online privacy. She opens by noting that:

With the federal government and technology policy shut down in Washington, California is steaming ahead with a series of online privacy laws that will have broad implications for Internet companies and consumers.In recent weeks, Democratic Gov. Jerry Brown has signed a litany of privacy-related legislation, including measures to create an “eraser button” for teens, outlaw online “revenge porn” and make Internet companies explain how they respond to consumer Do Not Track requests. The burst of activity is another sign that the Golden State — home to Google, Facebook and many of the world’s largest tech companies — is setting the agenda for Internet regulation at a time when the White House and Congress are moving at a much more glacial pace.

When she asked me how I felt about this, I noted that: “California seems like it is willing to declare the Internet its own private fiefdom and rule it with its own privacy fist.”  And, no matter how well intentioned any of these new California policies may be, the ends most certainly do not justify the means.

As I noted in a January essay here on “The Perils of Parochial Privacy Policies,” such state-based meddling with the Internet and globally-interconnected networks and platforms raises profound constitutional issues. It threatens the free flow of commerce and speech. Even if it is the case that some of us may, at times, want some forms of commerce and speech limited by state action, I would very much hope that we could agree that having 50 states creating their own State Privacy Offices or State Data Protection Bureaus would probably not be a wise move. This is exactly the sort of thing that the Commerce Clause was put in place to protect against when interstate commerce is on the line. And it is also the sort of thing that might even be preemptable under the First Amendment since some speech issues are in play here. And I’m not even getting into the wisdom of some of the individual policies that California is pursing, many of which are highly impractical and likely extremely costly.

I hope that all those folks who say they really care about “Internet freedom” will make a stand against what California is doing here. But something leads me to believe that, once again, selective morality will enter the picture simply because of the sensitive and highly emotional nature of all online privacy and child safety issues. But, again, the ends do not justify the means. The Internet does not belong to California and they should not be allowed to make it their own regulatory fiefdom.

]]> https://techliberation.com/2013/10/08/should-california-rule-the-internet/feed/ 4 73648 California Eraser Button Passes https://techliberation.com/2013/09/26/california-eraser-button-passes/ https://techliberation.com/2013/09/26/california-eraser-button-passes/#comments Thu, 26 Sep 2013 14:32:09 +0000 http://techliberation.com/?p=73572

California’s continuing effort to make the Internet their own digital fiefdom continued this week with Gov. Jerry Brown signed legislation that creates an online “Eraser Button” just for minors. The law isn’t quite as sweeping as the seriously misguided “right to be forgotten” notion I’ve critique here (1, 2, 3, 4) and elsewhere (5, 6) before. In any event, the new California law will:

require the operator of an Internet Web site, online service, online application, or mobile application to permit a minor, who is a registered user of the operator’s Internet Web site, online service, online application, or mobile application, to remove, or to request and obtain removal of, content or information posted on the operator’s Internet Web site, service, or application by the minor, unless the content or information was posted by a 3rd party, any other provision of state or federal law requires the operator or 3rd party to maintain the content or information, or the operator anonymizes the content or information. The bill would require the operator to provide notice to a minor that the minor may remove the content or information, as specified.

As always, the very best of intentions motivate this proposal. There’s no doubt that some digital footprints left online by minors could come back to haunt them in the future, and that concern for their future reputation and privacy is the primary motivation for the measure. Alas, noble-minded laws like these often lead to many unintended consequences, and even some thorny constitutional issues. I’d be hard-pressed to do a better job of itemizing those potential problems than Eric Goldman, of Santa Clara University School of Law, and Stephen Balkam, Founder and CEO of the Family Online Safety Institute, have done in recent essays on the issue.

Goldman’s latest essay in Forbes argues that “California’s New ‘Online Eraser’ Law Should Be Erased” and meticulously documents the many problems with the law. “The law is riddled with ambiguities,” Goldman argues, including the fact that:

First, it may not be clear when a website/app is “directed” to teens rather than adults. The federal law protecting kids’ privacy (Children’s Online Privacy Protection Act, or COPPA) only applies to pre-teens, so this will be a new legal analysis for most websites and apps. Second, the law is unclear about when the minor can exercise the removal right. Must the choice be made while the user is still a minor, or can a centenarian decide to remove posts that are over 8 decades old? I think the more natural reading of the statute is that the removal right only applies while the user is still a minor. If that’s right, the law would counterproductively require kids to make an “adult” decision (what content do they want to stand behind for the rest of their lives) when they are still kids. Third, the removal right doesn’t apply if the kids were paid or received “other consideration” for their content. What does “other consideration” mean in this context? If the marketing and distribution inherently provided by a user-generated content (UGC) website is enough, the law will almost never apply. Perhaps we’ll see websites/apps offering nominal compensation to users to bypass the law.

Goldman also notes that it is unclear why California should even have the right to be regulating the Internet in this fashion. It is his opinion that, “states categorically lack authority to regulate the Internet because the Internet is a borderless electronic network, and websites/apps typically cannot make their electronic packets honor state borders.” I’ve been moving in that direction for the past decade myself since patchwork policies for the Internet — regardless of the issue — can really muck up the free flow of both speech and commerce. I teased out my own concerns about this in my January essay on “The Perils of Parochial Privacy Policies” and argued that the a world of “50 state Internet Bureaus isn’t likely to help the digital economy or serve the long-term interests of consumers.”  Sadly, some privacy advocates seem to be cheering on this sort of parochial regulation anyway without thinking through those consequences. They are probably just happy to have another privacy law on the books, but as I always try to point out not just in this context but also in debates over online child safety, cybersecurity, and digital copyright protection, the ends rarely justify the means. I just don’t understand why more people who care about true Internet freedom aren’t railing against these stepped-up state efforts (especially the flurry of California activity) and calling it out for the threat that it is.

In an essay over on LinkedIn entitled, “Let’s Delete The ‘Eraser Button,'” Stephen Balkam points out another mystery about the new California law: “It’s unclear why this law was even proposed when there exists a range of robust reporting mechanism across the Internet landscape.” Indeed, in this particular case it seems like much of the law is redundant and unnecessary. “What this bill should have been about is education and awareness, about taking responsibility for our actions and using the tools that already exist across the social media landscape,” Balkam says. “Here are three key actions that can already be taken:

Delete – you can take down or delete postings, comments and photos that you have put up on Facebook, Twitter, YouTube and most of the other platforms. Report – anyone can report abusive comments or inappropriate content by others about you or other people and, in many cases, have them removed. Request – you can ask that you be untagged from a photo or that a posting or photo be removed that has been uploaded by someone else. In addition there are in-line privacy settings on many of the leading social media sites, so that you or your teen can choose who sees what.”

Balkam is exactly right. The tools are already there; it’s the education and awareness that are lacking. As I have pointed out countless times here before, there is no need for preemptive regulatory approaches when less-restrictive and potentially equally effective remedies already exist. We just need to do a better job informing users about the existence of those tools and methods and then explain how to take advantage of them. Just adding more layers of law — especially parochial regulation — is not going to make that happen magically. Worse yet, in the process, such laws open the barn door to far more creative and meddlesome forms of state-based Internet regulation that should concern us all.

And now for the really interesting question that I have no answer to: Will anyone step up and challenge this law in court?

]]> https://techliberation.com/2013/09/26/california-eraser-button-passes/feed/ 2 73572 On Mandating “Simplified” Privacy Policies https://techliberation.com/2013/02/08/on-mandating-simplified-privacy-policies/ https://techliberation.com/2013/02/08/on-mandating-simplified-privacy-policies/#comments Fri, 08 Feb 2013 15:35:16 +0000 http://techliberation.com/?p=43659

Via a Twitter post this morning, privacy lawyer Stephen Kline (@steph3n) brings to my attention this new California bill that “would require the privacy policy [of a commercial Web site or online service] to be no more than 100 words, be written in clear and concise language, be written at no greater than an 8th grade reading level, and to include a statement indicating whether the personally identifiable information may be sold or shared with others, and if so, how and with whom the information may be shared.”

I’ve always been interested in efforts — both on the online safety and digital privacy fronts — to push for “simplified” disclosure policies and empowerment tools. Generally speaking, increased notice and simplified transparency in these and others contexts is a good norm that companies should be following. However, as I point out in a forthcoming law review article in the Harvard Journal of Law & Public Policy, we need to ask ourselves whether the highly litigious nature of America’s legal culture will allow for truly “simplified” privacy policies. As I note in the article, by its very nature, “simplification” likely entails less specificity about the legal duties and obligations of either party. Consequently, some companies will rightly fear that a move toward more simplified privacy policies could open them up to greater legal liability. If policymakers persist in the effort to force the simplification of privacy policies, therefore, they may need to extend some sort of safe harbor provision to site operators for a clearly worded privacy policy that is later subject to litigation because of its lack of specificity. If not, site operators will find themselves in a “damned if you do, damned if you don’t” position: Satisfying regulators’ desire for simplicity will open them up to attacks by those eager to exploit the lack of specificity inherent in a simplified privacy policy.

Another issue to consider comes down to simple bureaucratic sloth: Mandatory “simplification” efforts means a team of bureaucrats somewhere in this world — in this case in Sacramento, California, I guess — will have to become code cops. Websites and apps will suddenly become subject to a new regulatory regime and all that it entails. So, even if those enterprising trial lawyers don’t get online innovators first, the bureaucrats could make their lives miserable with reams of red tape over time (especially because it would be silly to think that this sort of meddling with end with “simplification” mandates.) That could mean a lot less “permissionless innovation” and many more “Mother May, I?” permissioned proceedings instead.

Further, do we really want such Internet mandates to spring from the state-level? As I noted in my recent essay on “The Perils of Parochial Privacy Policies,” such state-based Internet meddling — even when well-intentioned — could quickly become a confusing morass of over-lapping, contradictory rules. Fifty different state Internet Bureaus aren’t likely to help the digital economy or serve the long-term interests of consumers. It could also open the door to potential Net-meddling on other fronts (online free speech, copyright, cybersecurity, online authentication, etc.) If “simplified” policies can be mandated at the state level for privacy, why not everything else? So, some degree of preemption may be in order here. If the movement of digitized bits across the Net isn’t “interstate commerce,” then I don’t know what is.

Just as an aside, it’s worth pointing out that simply because consumers do not necessarily read or understand every word of a company’s privacy policy does not mean that “market failure” exists. In my forthcoming Harvard Journal piece I discuss how disclosure policies or labeling systems work in other contexts and note that it is highly unlikely that consumers read or fully understand every proviso contained in the stacks of paper placed in front of them when they sign home mortgages, life insurance policies, or car loans and warranties. Such documents are full of incomprehensible provisions and stipulations, even though regulations govern many of these contracts. In these cases, I could argue that consumers face far more “risk” than they face by not fully comprehending online privacy policies. But life goes on. Consumers will never be perfectly informed in these or other contexts because they are busy with other things. In a similar way, a certain amount of “rational ignorance” about privacy policies should be expected.

Let me close by reiterating that increased notice and transparency in privacy and data collection/use policies is generally a good operational norm. But not every smart norm makes a smart law, and in this case there are some thorny unintended consequences that must be considered when policymakers propose “simplifying” privacy policies via state-based regulatory mandates.

[On a related note, my colleague Jerry Brito brought to my attention this interesting 2011 NPR piece on “Why Are Credit Card Agreements So Long?]

]]> https://techliberation.com/2013/02/08/on-mandating-simplified-privacy-policies/feed/ 624 43659 The Perils of Parochial Privacy Policies https://techliberation.com/2013/01/11/the-perils-of-parochial-privacy-policies/ https://techliberation.com/2013/01/11/the-perils-of-parochial-privacy-policies/#comments Fri, 11 Jan 2013 19:32:52 +0000 http://techliberation.com/?p=43425

Here’s a thought experiment. Let’s say you believe the Internet economy needs more regulation to guard against potential privacy violations or what you regard as excessive data aggregation. Further, you believe that no amount of self-regulation, social norms, market pressure, education, empowerment, or anything else could possibly substitute for regulation. I know there are a lot of people out there today who feel this way. Regardless of the merits of such claims, here’s my question for you: Do the ends (enhanced privacy protections) justify any means (regulation at any and every level of government)? For example, what would you think about having all 50 states creating their own Privacy Offices or Data Protection Bureaus that issued regulations or recommendations about Internet best practices?

What got me thinking about this was this new blog post by Parker Higgins of EFF, “California Attorney General Releases Mobile Privacy Recommendations.” In the essay, Higgins showers praise on California Attorney General Kamala D. Harris, who just released a document (“Privacy on the Go“) that lays out a long set of privacy “best practices” for mobile app developers. Higgins writes:

EFF applauds this important step forward, and congratulates the California Attorney General on a thorough and clearly written explanation of the importance of mobile privacy and how developers can deliver. It’s true that as technology changes, the specific needs and guidelines for companies will need to adapt. We could well see a time when these principles do not adequately protect the rights and needs of consumers. However, right now these principles represent a huge step forward — going beyond existing law in a way that improves transparency, accountability, and choice for users of mobile devices.

Regardless of the merits of the principles and recommendations contained in that report — and I agree that many of them are quite sensible best practices that industry should be following — I can’t help but wonder whether it is wise for EFF to be cheering on state-based Internet meddling so openly. OK, so I can hear the primary objection: It’s not regulation; it’s just a set of recommendations! Well, yes and no. What AG Harris is doing here is an exercise in soft power or regulatory nudging. It’s a variation of what Tim Wu calls the “agency threats” model of regulating without any formal regulation being promulgated. (Wu enthusiastically endorses such exercises in arbitrary soft power). Or it’s what Randy Picker refers to a “non-law law,” which we are seeing more and more of on this front through the use of “best practice” reports or other agency guidance. And this is happening against the backdrop of a gradual expansion of formal privacy law in the state, such as the the California Online Privacy Protection Act (OPPA). Moreover, the state also has its own Office of Privacy Protection and AG Harris recently announced the creation of a Privacy Enforcement and Protection Unit in the Calif. Department of Justice.  Last year, she also brokered a Joint Statement of Principles that was adopted by the leading operators of mobile application platforms “to help bring mobile apps in compliance with the California Online Privacy Protection Act.”

Thus, when the AG announces a new set of best practices and strongly suggests industry should be following them, there’s an implied “or else!” threat that hangs like a quasi-regulatory Sword of Damocles over the collective necks of everyone in this sector. Regardless of how you feel about such “administrative arm-twisting,” I would hope we could agree that there is some theoretical limit to efficient state-based regulation of a network that is national or global in scope, such as the Internet. And yet that’s the perilous path we’re heading down if more states begin to mimic AG Harris and the state of California.

I can’t help but think that if AG Harris was issuing best practices on almost any other Internet policy issue — online free speech, copyright, cybersecurity, online authentication, etc. — that EFF would be (rightly) screaming bloody murder or at least raising some tough questions about the potentially slippery slope of increased state-based Internet meddling. But because there’s a bit of selective morality at work here — EFF welcomes more privacy regulation but opposes most other forms of information control — they are willing to turn a blind eye to the danger of a parochial patchwork of Internet policies in the privacy context.

Perhaps such nudging ends in California and doesn’t spread more broadly across the U.S.  But that’s a pretty big risk. I hope EFF and others give more thought to what they are sanctioning here. 50 state Internet Bureaus isn’t likely to help the digital economy or serve the long-term interests of consumers.

Further Reading

]]> https://techliberation.com/2013/01/11/the-perils-of-parochial-privacy-policies/feed/ 6 43425 A Response to Leland Yee & James Steyer on What Motivated Video Game Decision https://techliberation.com/2011/06/28/a-response-to-leland-yee-james-steyer-on-what-motivated-video-game-decision/ https://techliberation.com/2011/06/28/a-response-to-leland-yee-james-steyer-on-what-motivated-video-game-decision/#comments Tue, 28 Jun 2011 19:02:04 +0000 http://techliberation.com/?p=37533

Yesterday’s 7-2 decision in Brown v. EMA [summaries here from me + Berin Szoka] was one of those historic First Amendment rulings that tends to bring out passions in people. You either loved it or hated it. But it’s sad to see some critics on the losing end of the case declaring that only greed could have possibly motivated the Court’s decision.

For example, California Senator Leland Yee, the author of the law that the Supreme Court struck down yesterday, obviously wasn’t happy about the outcome of the case. Neither was James Steyer, CEO of the advocacy group Common Sense Media, who has been a vociferous advocate of the California law and measures like it. What they had to say in response to the decision, however, was outlandish and juvenile. In essence, they both claimed that the Supreme Court only struck down the law to make video game developers and retailers happy.

“Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children,” Leland Yee said in a post on his website yesterday. “As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.” Jim Steyer reached a similar conclusion: “Today’s decision is a disappointing one for parents, educators, and all who care about kids,” he said. “Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected, but we will continue to fight for the best interests of kids and families.”

Mr. Yee and Mr. Steyer seem to be under the impression that the Court and supporters of its ruling in Brown cannot possibly care about children and that something sinister motivates our passion about the victory. Apparently we’re all just apparently in it to make video game industry fat cats and retailing giants happy! That’s a truly insulting position for Mr. Yee and Mr. Steyer to adopt. Perhaps it is just because they are sore about the outcome in the case that are adopting such rhetorical tactics. Regardless, I think they do themselves, their constituencies, and the public a great injustice by suggesting that only greed could possibly be motivating the outcome in this case.

Why is it so hard for Mr. Yee and Mr. Steyer to believe that many of us — like the majority writing for the Court in Brown — believe that video games represent valuable, constitutionally protected speech and that laws like those in California are an affront to First Amendment rights we cherish? What Mr. Yee and Mr. Steyer are asking us to believe is that all those average gamers and free speech advocates who lined up behind the video game industry and merchants who brought this case did so only out of a concern about the welfare of those companies.  Preposterous!  Anyone who knows anything about game industry politics knows that some rather serious tensions exist between gamers, game developers, and game retailers.

Incidentally, it’s particular silly for Mr. Yee to single out Wal-Mart in his comment yesterday since Wal-Mart actually goes to great lengths to keep “Mature”-rated games out of the hands of minors who might try to purchase them on their own. But I could care less about how much money Wal-Mart, any other retailer, or any video game developer makes from selling games. That’s the last thing on the mind of most First Amendment supporters when they praise this decision and it’s ridiculous that Mr. Yee and Mr. Steyer would list it as the primary motivation of the Court or supporters of the decision.

And then there’s Mr. Steyer’s comment that “today’s decision is a disappointing one for parents, educators, and all who care about kids.”  Utterly insulting tripe. Millions of parents like me “care about kids” passionately and devote most of our lives to raising them properly. I understand you want to help us do that, but you are not helping when you insult the very people you say your organization exists to support.

I have repeatedly praised Common Sense Media here and elsewhere for many of the outstanding services and information they provide to parents. My wife and I regularly consult CSM’s excellent movie and video game summaries before we let our kids consume certain titles. It was also my great privilege to serve on a blue ribbon online child safety task force that CSM created and co-sponsored.

But when Mr. Steyer veers into this sort of hysterical ‘you’re-either-for-these-laws-or-you’re-against-children’ sort of lunacy, it really makes me question whether I should frequent his organization’s website anymore or have any further interaction with this group. While I appreciate CSM’s efforts to empower parents with more and better information about the content our families consume, it is insulting in the extreme for Mr. Steyer to suggest that you can’t “care about kids” and also care about the First Amendment.

Like the majority of the justices on the Court, I support limits on how our government controls speech because we live in a nation that cherishes freedom of expression and personal responsibility.  We should not expect Uncle Sam to act as a national nanny and make subjective determinations about what is best for our families. As Catherine Ross, a professor at George Washington University Law School, noted in a nice Washington Post oped, “By rejecting this radical path, the justices [in Brown] protected our children by preserving our liberty.”

Quite right.  I’m proud the Supreme Court sided with freedom yesterday and against the sort of nannyism from above that Mr. Steyer and Mr. Yee apparently favor and equate with “caring about kids.”  These men obviously don’t take First Amendment rights quite as seriously as some of the rest of us. But shame on them for claiming that just because many of us (or the Courts) do take these rights and responsibilities seriously that it somehow means we don’t care about our children or that we only believe these things in order to make corporations happy.

]]> https://techliberation.com/2011/06/28/a-response-to-leland-yee-james-steyer-on-what-motivated-video-game-decision/feed/ 4 37533 More on California’s New Net Regulations https://techliberation.com/2011/05/23/more-on-californias-new-net-regulations/ https://techliberation.com/2011/05/23/more-on-californias-new-net-regulations/#comments Mon, 23 May 2011 19:42:30 +0000 http://techliberation.com/?p=36960

As Sonia Arrison mentioned here on Friday, the State of California is currently considering legislation that could, in the name of enhancing online privacy, impose burdensome new regulatory mandates on the Internet. Sonia has a nice column at TechNewsWorld discussing this. I also wrote about the same issue in my Forbes column this week, which is entitled, “The State of California Versus the Internet.” Specifically, I discuss SB 242, “The Social Networking Privacy Act,” and SB761, the so-called Do Not Track bill, and argue that: “What unifies these two measures is a general lack of understanding about the way the Internet and digital technology work. Both measures fail to appreciate the global nature of the Internet and would raise a host of unintended consequences.”

While the best of intentions drive these measures, they will be complicated to enforce in practice and could have a devastating impact on the California economy in the process. “If California wants to reestablish itself as the home of high-tech innovation,” I argue, “it needs to realize heavy-handed Net controls are not the ticket to either economic progress or job-creation.” Moreover, “These laws could be challenged in court since state-based regulation of the Internet raise constitutional issues. The Commerce Clause of the Constitution was designed to block the sort of parochial burdens on interstate commerce that these measures would establish.”

Jump over to Forbes to read the rest. Let’s hope California policymakers realize what a mistake they are making before it’s too late. If they don’t, Congress will need to preempt this regulation of interstate commerce if it’s not immediately challenged in Court and overturned.

]]> https://techliberation.com/2011/05/23/more-on-californias-new-net-regulations/feed/ 1 36960 Like the Terminator, Video Game Censorship Efforts Just Won’t Die https://techliberation.com/2009/07/07/like-the-terminator-video-game-censorship-efforts-just-wont-die/ https://techliberation.com/2009/07/07/like-the-terminator-video-game-censorship-efforts-just-wont-die/#comments Tue, 07 Jul 2009 18:10:43 +0000 http://techliberation.com/?p=19194

Terminator

He Wants to Terminate Your First Amendment Rights

Robert Corn-Revere, a partner with the law firm of Davis Wright Tremaine and one of America’s greatest living defenders of the First Amendment, has a new essay up on the Media Institute website entitled “The Terminator Cometh.” Corn-Revere takes on the former Terminator himself, California Gov. Arnold Schwarzenegger, who along with other Calif. lawmakers, has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional. (More background in my previous post here). California’s decision to appeal the law up to the Supreme Court [petition is here] sets up a potential historic First Amendment decision (if they Court agrees to take the case, that is). Corn-Revere points out why this case is so important:

In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that “excessively violent” material — whatever that may be –“deserves no constitutional protection.” It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to “reasonable inferences” and “legislative judgments.”

BCR

The John Connor of Your First Amendment Freedoms

In other words, Corn-Revere notes, “the state is asking the Court simply to lower the bar so that protected speech may be regulated based on legislative whim.” He continues:

Thus, like the Terminator, no matter how many times you kill it, the government drive that motivates these laws keeps on going and going until it achieves its programmed goal. If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.

Corn-Revere is right. The ramifications of this case could be profound. As I pointed out in my previous essay on this case:

California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century’s worth of First Amendment jurisprudence. The State wants the Court to equate violent media content with sexual content, which in certain limited cases can be regulated if deemed “obscene” or “harmful to minors” (”HTM”).   If you thought that business was messy and hopelessly arbitrary, just wait till we let the Federal Communications Commission or state regulators open this new Pandora’s Box of content regulation and go after “excessively violent” content.
I’ve sorted through some of those thorny issues before (1, 2, 3, 4, 5, 6) and there’s just no getting around the fact that it is remarkably difficult to come up with any sort of workable test for what counts as “excessively violent” media content.  And that may be one of the reasons that the courts have historically steered clear of bringing violent content under the HTM standard.
]]> https://techliberation.com/2009/07/07/like-the-terminator-video-game-censorship-efforts-just-wont-die/feed/ 3 19194 Calif. Appeals Video Game Decision to Supremes; What if They Take It? https://techliberation.com/2009/05/21/calif-appeals-video-game-decision-to-supremes-what-if-they-take-it/ https://techliberation.com/2009/05/21/calif-appeals-video-game-decision-to-supremes-what-if-they-take-it/#comments Thu, 21 May 2009 18:25:56 +0000 http://techliberation.com/?p=18439

Supreme CourtCalifornia has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional.  [Game Politics.com has complete coverage, and there’s more over at Ars and USA Today’s Game Hunters blog.]

Brief background: In late February, the Ninth Circuit upheld an August 2007 ruling by a California district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here], which struck down a California law, passed in October 2005 (A.B.1179), which would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.  After being challenged by the Video Software Dealers Association and the Entertainment Software Association and, the district court blocked the law arguing that it violated both the First and Fourteenth Amendments to the federal Constitution.

California’s decision to appeal the law up to the Supreme Court [petition is here] sets up a potential historic First Amendment decision (if they Court agrees to take the case, that is).  California is asking the Court to consider two questions:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?
2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century’s worth of First Amendment jurisprudence.

The State wants the Court to equate violent media content with sexual content, which in certain limited cases can be regulated if deemed “obscene” or “harmful to minors” (“HTM”).   If you thought that business was messy and hopelessly arbitrary, just wait till we let the Federal Communications Commission or state regulators open this new Pandora’s Box of content regulation and go after “excessively violent” content.

I’ve sorted through some of those thorny issues before (1, 2, 3, 4, 5, 6) and there’s just no getting around the fact that it is remarkably difficult to come up with any sort of workable test for what counts as “excessively violent” media content.  And that may be one of the reasons that the courts have historically steered clear of bringing violent content under the HTM standard. As EFF noted in a filing to the FCC this week:

speech can only acquire HTM status as a result of sexual content. Courts have repeatedly held that nonsexual depictions of violence are not covered by the HTM doctrine and are just as constitutionally protected for minors (against state action) as they are for adults. A series of court decisions, for example, has repeatedly invalidated state attempts to regulate minors’ access to violent video games.

I’m not an expert at reading legal tea leaves, but I really would be shocked if the Supreme Court took this case because I doubt they are eager to “unsettle” this relatively settled body of law and bring about a First Amendment revolution in the process.

The full text of the California appeal follows below.

Calif Appeal of VDSA Case to Supreme Court http://d.scribd.com/ScribdViewer.swf?document_id=15694645&access_key=key-1kpkxx35dnffdodp2g81&page=1&version=1&viewMode=

]]> https://techliberation.com/2009/05/21/calif-appeals-video-game-decision-to-supremes-what-if-they-take-it/feed/ 13 18439 Will VSDA v. Schwarzenegger Be First Major Supreme Court Video Game Case? https://techliberation.com/2009/02/22/will-vsda-v-schwarzenegger-be-first-major-supreme-court-video-game-case/ https://techliberation.com/2009/02/22/will-vsda-v-schwarzenegger-be-first-major-supreme-court-video-game-case/#comments Sun, 22 Feb 2009 18:06:10 +0000 http://techliberation.com/?p=16980

ArnoldThis week, the Ninth Circuit Court of Appeals struck down a California video game statute as unconstitutional, holding that it violated both the First and Fourteenth Amendments to the federal Constitution.  The California law, which passed in October 2005 (A.B.1179), would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.  It was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association and, in August of 2007, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. The Ninth Circuit heard the state’s challenge to the injunction last year and handed down it’s decision this week [decision here] holding the statute unconstitutional. The key passage:

We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York , 390 U.S. 629 (1968). Applying strict scrutiny, we  hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.

The law’s lead sponsor, California Sen. Leland Yee, is encouraging the state to appeal the law to the Supreme Court.  No word yet from Gov. Schwarzenegger whether the state will pursue that course of action. If they do, this will become the first major First Amendment case regarding video game speech that our nation’s highest court will consider.  The video game industry has racked up an uninterrupted string of First Amendment victories, so it would be quite shocking if the Supreme Court took up this case and then held differently.  It would also be shocking in light of the many Internet-related free speech decisions that the Court has handed down since the mid-90s, which all favored greater First Amendment freedoms.  But you never know.

]]> https://techliberation.com/2009/02/22/will-vsda-v-schwarzenegger-be-first-major-supreme-court-video-game-case/feed/ 18 16980 Video Game Censorship Heading to Supreme Court? https://techliberation.com/2008/10/29/video-game-censorship-heading-to-supreme-court/ https://techliberation.com/2008/10/29/video-game-censorship-heading-to-supreme-court/#comments Thu, 30 Oct 2008 03:05:42 +0000 http://techliberation.com/?p=13640

Supreme Court GamePolitics.com reports that there are strong signs the protracted legal battle over video game regulation in California might soon be headed to the Supreme Court. The ongoing battle deals with a California law passed in October 2005 (A.B.1179), which would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.

The law was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association.  In August of last year, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. And today in Sacramento, a 3-judge panel of the 9th U.S. Circuit Court of Appeals held a hearing in to hear additional arguments about the law. The San Jose Mercury News reports that judges seemed skeptical about the State’s effort to overturn the lower court ruling and get the law enforced:

While the 9th Circuit judges did lend some support to the state, they were generally skeptical the law can survive. “What you are asking us to do is go where no one has gone before,” Judge Consuelo Callahan said to the state’s lawyer. “Admittedly, they are disgusting. But aren’t you just trying to be the thought police?”

The judges also realize that every other state or circuit court that has considered the constitutionality of similar video games laws has found them unconstitutional. As I noted in my piece last year on the California law, the current legal score is “Gamers 11, Censors 0.”  If the Ninth Circuit does keep the injunction in place and California appeals the law up to the Supreme Court as some predict, we could be in for a historic First Amendemt case, and the first to deal with video game speech. Stay tuned!

]]> https://techliberation.com/2008/10/29/video-game-censorship-heading-to-supreme-court/feed/ 21 13640 True Cost of Video Game Censorship (continued) https://techliberation.com/2008/08/05/true-cost-of-video-game-censorship-continued/ https://techliberation.com/2008/08/05/true-cost-of-video-game-censorship-continued/#comments Tue, 05 Aug 2008 19:41:42 +0000 http://techliberation.com/?p=11692

In my July essay on “Understanding The True Cost of Video Game Censorship Efforts,” I pointed out how outrageous it was that politicians continue to burn money on fruitless regulatory measures that are destined to be struck down as unconstitutional. I argued that the nearly $2 million in legal fees and expenses recovered by the video game industry after winning its legal cases against various governments could have been spent much better by public policy makers:

That $2 million in recovered legal fees could have been plowed into educational efforts to help explain to parents how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal. Moreover, that $2 million in recovered industry legal fees does not account for the resources that state and local officials put into these regulatory efforts. So, we are talking about a much greater deadweight loss for society and taxpayers.

Well, that opportunity cost / deadweight loss grew even higher today when the state of California reimbursed the Entertainment Software Association (ESA) $282,794 for attorney’s fees after losing a recent legal battle in the case Video Software Dealers Association v. Schwarzenegger. The ESA sent out a press release about the case today that dramatically points out the opportunity cost of such regulation:

The ESA noted that this payment comes at an especially troubling time for the state, calling to mind other pressing budgetary and legislative priorities and issues, including: * California is currently facing a $15-billion budget gap * More than 10,000 California state employees were laid off last week in light of the budget crisis * Governor Schwarzenegger is seeking to cut wages for nearly 200,000 state employees * The state already cut 10 percent to its Medicaid reimbursement rate and deferred payments to vendors “Caregivers are not well-served by court battles and legal fees. Rather, they would have been far better off if state officials worked together with our industry to raise awareness about video game ratings and the parental controls available on all new game consoles — both of which help ensure that the games children play are parent-approved.”

Indeed. And yet, the video game censorship bandwagon rolls on. Will it never end?

]]> https://techliberation.com/2008/08/05/true-cost-of-video-game-censorship-continued/feed/ 13 11692 Google, California’s Privacy Policy Law & Our Sci-Fi Future https://techliberation.com/2008/06/04/google-californias-privacy-policy-law-our-sci-fi-future/ https://techliberation.com/2008/06/04/google-californias-privacy-policy-law-our-sci-fi-future/#comments Wed, 04 Jun 2008 20:58:45 +0000 http://techliberation.com/?p=10877

As Jim has mentioned, Google stands accused of violating a California law that requires a website operator to “conspicuously post” a link to its privacy policy on its “home page or first significant page after entering the Web site” with the word “Privacy” in a larger font than the rest of the page’s text.

Are we not fortunate to have state laws that make it possible for customers to actually find website privacy policies? With all the billions of documents floating out there in the dark and mysterious pipes and tubes of the so-called “Internet,” how on earth would any simple user ever find the Google privacy policy if Google were not required by law to include an obvious link to that policy on its homepage? Some modern-day da Vinci would have to invent a technology that could magically index every single webpage in existence and let users find—or “search,” to use a classic science-fiction term—for that particular webpage by typing the words “Google privacy policy” and clicking a button.

Until such fantastic Jules Verne-style technologies are developed in some distant century, it is obviouslyvital that each and every state government develop its own requirement as to how website operators—especially those that purport to offer fantastic-but-as-yet-clearly-impossible “search” services—must clutter their websites’ homepages with links to information that no user could ever possibly find on his or her own with today’s crude technology.

Of course, even if such “search engines” (to coin an unlikely phrase) actually existed, the burden on consumers of typing seventeen (17!) letters—plus two (2) spaces and perhaps even two (2) more quotation marks for a total of up to twenty-one (21!) agonizing-to-type characters—would have to be reduced dramatically through some additional innovation or Esperanto-like simplification of the English language before we could reasonably expect that average consumers might be able to find privacy policies on their own without the benefit of California’s enlightened net-paternalism.

Let us only hope that California will protect Internet users all over the planet from the myriad other horrors of poor website design and organization—and that every other state will do the same. Given still-unconfirmed rumors that website operators are increasingly beginning to serve customers from multiple states—and, in some extreme cases, even multiple countries—it is, of course, possible that conflicting state laws might create some difficulty for certain website operators, who could be forced to create state-specific versions of their webpages in the face of conflicting state laws, each with different links and disclaimers in varying font sizes and perhaps even colors. Nonetheless, when it comes to making privacy policies accessible, “we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, in order to assure the survival and the success of liberty privacy.” President Kennedy, himself a dreamer about new frontiers, would have settled for nothing less.

Sacramento, the world looks to you now more than ever to lead us to a brighter future where any information a user could ever want is just a click away.

]]> https://techliberation.com/2008/06/04/google-californias-privacy-policy-law-our-sci-fi-future/feed/ 12 10877