Yesterday up on Capitol Hill, I hosted a very interesting discussion about “Next-Generation Parental Controls & Child Safety Efforts.”  I thought I’d provide a quick recap here for those who couldn’t attend. [Note: audio of the event will be up shortly at the link above and transcript is in the works.] The event featured Steve Crown, Vice President and Deputy General Counsel of Microsoft Corporation’s Entertainment & Devices Division; Dane Snowden, Vice President of External & State Affairs of CTIA – The Wireless Association; and Stephen Balkam, Chief Executive Officer of Family Online Safety Institute.

Steve Crown of Microsoft kicked the show off with a terrific overview of some the current and next-generation parental control tools and awareness efforts that Microsoft is deploying to help empower parents and keep kids safer both online and in gaming environments. Crown outlined Microsoft’s 5-prong strategy regarding how they have approached these issues on the gaming front, and I think it represents an excellent model of how sensible industry self-regulation and “best practices” can go a long way toward addressing concerns that many parents and policymakers have. The five strategies Crown outlined were: (1) Respect both the freedom of game creators and freedom of choice for game consumers; (2) empower parents with ratings, tools, and information; (3) use independent ratings (like the ESRB) to label content; (4) require all games be rated before they can be used on a platform so that parents can implement blocking controls; and (5) respect regional laws and rating systems in different parts of the globe.

In my book on Parental Controls & Online Child Safety: A Survey of Tools & Methods, I’ve documented many of the empowerment tools that Microsoft has deployed in recent years to make this empowerment vision a reality. One of the most important things MS does on its XBox 360 console is to provide an immediate “out-of-the-box” prompt for parents to set up parental controls and establish other limitations on online chat, spending, or Internet access. Microsoft announced another cool new feature in November 2007, the “Family Timer.” It lets parents limit how and when children play games on the console. This is similar to the time management tools Microsoft offers in its Vista operating system for PCs.  Incidentally, my wife has asked me to start using the Family Timer on our XBox — not for our kids, but for me!  This particular 40-year-old man is still a big kid at heart.

Crown also stressed the importance of “deep cooperation and coordination” when it comes to making parental empowerment a reality.  For example, when announcing the Family Timer, Microsoft also launched a new awareness campaign in conjunction with the Parent Teacher Association (PTA) referred to as the “Is Your Family Set?” campaign At the same time, Microsoft and the PTA also rolled out a new “P.A.C.T.” agreement form that parents and their children could sign to reach an agreement on acceptable video game usage in the home.

To bring all these efforts together and give parents a sort of “one-stop shop” for all these gaming tools and information, in early 2009, Microsoft launched a new portal, “Get Game Smart.com.”  The GetGameSmart site provides instructions and video tutorials about how to set up parental controls and family settings, tips and advice from child safety experts, a frequent newsletter, and much more.

Again, “cooperation and coordination” was central to the Get Game Smart effort, with over 15 partners being involved. Moreover, Crown pointed out, cooperation and coordination has also been essential to the efforts of Microsoft and others in the gaming industry when it comes to “point of sale” awareness-building about game ratings.  Obviously, game developers and console makers can’t have staff on hand at every store where games or consoles might be sold. Consequently, it often falls to sales clerks and others in retail stores to convey ratings info.  Luckily, because of the partnerships that have been struck between various stakeholders all along the food chain, public awareness and use of ratings has grown rapidly. Microsoft, the ESRB, and others in the gaming industry have worked with retailers like Best Buy, WalMart, and many online vendors to make sure relevant ratings information is used at the point of sale to inform parents or limit underage access to games rated for more mature audiences.

The chart below illustrates the dramatic increase in ratings use and awareness since 1999 — from 49% awareness in 1999 to 86% by 2008.  That’s an incredible success story in terms of how industry self-regulation and best practices can go all long way toward addressing the concerns of parents and policymakers without denying the public access to a broad range of games for all ages.

Also on hand at our Hill event yesterday was Dane Snowden of the CTIA – The Wireless Association. Snowden also stressed the importance of partnerships and coordination among many diverse players to build awareness about parental controls and online safety in the mobile context. Snowden pointed out that there are well over 600 different mobile communications devices on the market today, which makes devising controls a daunting task. But both the wireless industry and independent vendors are responding with a wave of new integrated tools and add-on services that can help parents control handset use and online interactions.

For example, beginning in November 2005, CTIA unveiled new “Wireless Carrier Content Guidelines” that industry members would follow “to proactively provide tools and controls to manage wireless content offered by the carriers or available via Internet-enabled wireless devices.  According to an April 2009 filing by CTIA to the FCC, the guidelines work as follows:

Under these guidelines, participating carriers agree to develop content classification standards and educate consumers about the meaning of the chosen categories and ratings. The Notice describes the bifurcation in these content classification guidelines between “Carrier Content” and content available from other sources. The guidelines for Carrier Content cover materials that are available through a carrier’s managed content portal as well as third-party materials for which customers may be billed directly by their wireless carrier. These materials are divided into “Generally Accessible Carrier Content,” which is available to all consumers, and “Restricted Carrier Content,” which is not available to wireless users under 18 years of age without specific parental authorization.

Many major wireless carriers have already announced their plans or policies regarding such content or developed family tools to help parents protect their children. Market leaders AT&T (“SmartLimits” and “Media Net”),Verizon Wireless (“Family Locator”), T-Mobile (“Web Guard”), and Sprint (“Net Safety“) already have excellent parental control services and websites up and running.

Dane Snowden also noted that a vibrant marketplace of independent parental control tools is now thriving on many platforms, including Apple iTunes apps and Windows Mobile apps. Thus, just as was the case in the traditional PC world, we can expect to see parental control tools integrated within networks and devices and then also on top of networks and devices. That’s the best of both worlds since it gives parents a lot of flexibility and options.

Finally, my old friend Stephen Balkam of Family Online Safety Institute placed all these developments in a broader historical context. He believes we are finally seeing a shift from a “fear-based approach” to online safety toward a “fact-based approach.” Balkam cited the early fears and techno-panics that motivated misguided and ultimately unconstitutional laws such as the Communications Decency Act of 1996 and the Child Online Protection Act of 1998. He also pointed out just how irrelevant such laws would have been even if they had remained on the books in light of the recent rise of problems like cyberbullying and “sexting.”

To address such concerns, Balkam stressed the importance of media literacy and digital citizenship and the need for a “Web 3.0” approach along the lines of what Anne Collier and Larry Magid have outlined in their work on the issue. Balkam also put in a plug for the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047), which was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that would be administered by the Department of Justice.  Balkam argued, and I agree, that such education and counseling-based approaches represent the better approach to a “criminalization” solution.

In closing, I think the 3 key take-aways from yesterday’s discussion were:

1. Cooperation and coordination are essential when devising parental control solutions and trying to build awareness of them.
2. Additional parental empowerment tools are great, but focusing on striking the right balance is crucial.  Parental empowerment tools must be both sophisticated and simple to use at the same time.
3. Education is absolutely essential in every child safety context. Whether it’s potentially objectionable content or unwanted forms of communications, we must talk to our kids and better prepare them for life in the Digital Age.  The best “parental control” is parental interaction and ongoing conversation with our kids.

The new Maine law I blogged about on Sunday is much worse than I thought based on my initial reading. If allowed to stand, it would constitute a sweeping age verification mandate introduced through the back door of “child protection.”

The law, which goes into effect in September, would extend the approach of the Children’s Online Privacy Protection Act (COPPA) of 1998 by requiring “verifiable parental consent” before the collection of kids “personal information” about kids, not just those under 13, but also adolescents age 13-17.  Unlike other state-level proposals in New Jersey, Illinois, Georgia and North Carolina, Maine’s “COPPA 2.0” law would also cover health information, but would only govern the collection and use of  data for marketing purposes (while the FTC has interpreted COPPA to cover to essentially any capability for communicating personal information among users).

But the Maine law would go much further than these proposals or COPPA itself by banning transfer or use of such data in anything other than de-identified, aggregate form. Still I took some comfort in the fact that the Maine law, unlike COPPA or these other proposals, lacked the second of COPPA’s two prongs: (i) collection from kids and (ii) collection on sites that are directed at kids. It’s because of the second prong that COPPA applies not only when a site operator knows that it’s collecting information from kids (or merely allowing them to share information with other users), but also when the operator’s site is (like, say, Club Penguin) targeted to kids in terms of its subject matter, branding, interface, etc. Because I initially concluded that the Maine law would apply only to knowing collection, I supposed that it would be less likely to require age verification of all users, as other COPPA 2.0 proposals would—something that would be unlikely to survive a First Amendment challenge based on the harm to online anonymity.

But I was quite wrong. During the PFF Capitol Hill briefing Adam and I held on Monday, Jim Halpert, one of our panelists, noted that the bill imposed “strict liability.” When I re-read the law, two small provisions with enormous consequences jumped out at me.  First, this section:

Unlawful collection. It is unlawful for a person to knowingly collect or receive health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent of that minor’s parent or legal guardian.

The knowledge requirement above pertains to whether the collection is done “knowingly,” not whether the operator “has actual knowledge that it is collecting personal information from a child” (COPPA’s language). It’s possible that the Maine legislature meant to require that operators know that they’re collecting information from kids, not merely that the collection is intentional and not inadvertent, but if so, they either didn’t read COPPA or don’t understand statutory drafting.

But even if operators could be held liable if they had actual knowledge that they were collecting personal or health information without parental consent, the other operative language of the bill has no knowledge requirement at all. Thus, if an operator truly had no idea it was collecting information from a kid—kids commonly lie about their age to gain access to age-restricted sites—the operator would still be strictly liable for transferring or using that data under the other operative provisions of the law:

Unlawful use. A person may not sell, offer for sale or otherwise transfer to another person health-related information or personal information about a minor if that information: A. Was unlawfully collected pursuant to subsection 1; B. Individually identifies the minor; or C. Will be used… for the purpose of marketing a product or service to that minor or promoting any course of action for the minor relating to a product.

Thus, the only way affected site operators ( e.g., anyone who asks for user’s names as part of a profile and also uses personal information in marketing) could protect themselves under the law would be to age verify all users. Thus, the Maine law is, like other COPPA 2.0 proposals, simply an age verification mandate imposed on all adult users of sites with increasingly prevalent social networking functionality dressed up as a child protection measure. Again, unlike other COPPA 2.0 proposals, the Maine law would not apply to all sites that collect personal information for marketing purposes, but for those that do, it would have the same consequence as other COPPA 2.0 proposals.  As we argue in our paper (p.24), COPPA 2.0 proposals in general are very likely to be struck down on the same grounds as the Child Online Protection Act (COPA), COPPA’s evil twin sister, which would have required age verification for all content deemed “harmful to minors” and which the courts have struck down as blatantly unconstitutional.

Although one might argue that the Maine law does less harm to speech because it applies only to sites that collect and use/transfer data for marketing purposes, while COPPA’s reach is far broader, the Dormant Commerce Clause argument against the law would also probably succeed: the law unduly burdens interstate commerce by imposing Maine’s standards on the rest of the country. Under the law’s strict liability regime, efforts to geo-target users in Maine (themselves a significant burden on website operators) would not protect out-of-state site operators from liability for collecting data from some users in Maine because geo-targeting is necessarily imperfect.

But wait; there’s more! Other COPPA 2.0 proposals would have this consequence because they would apply either to all social networking sites with a certain functionality (Illinois) or to collection of information through sites “directed at” adolescents (New Jersey), which could apply to sites used by large numbers of adults. But for most sites, such laws would only apply where the operator had “actual knowledge” that the user was a kid, thus recognizing (for those sites) that perfect age verification is impossible and that some kids will inevitably circumvent any age verification system imposed. By contrast, the Maine law would hold sites liable for “predatory marketing” for every collection, use, or transfer of a kid’s personal information whether or not the operator knew (or even had reason to know) that they were collecting information from kids at a rate of $10-20k for the first offense and $20k+ (with no upper bound at all) for each subsequent offense. Since offense here could mean each individual act of collection, and since large social networking websites have tens of millions of users, operators might theoretically be subject to fines in the hundreds of billions of dollars!

If this law survives constitutional challenge, I’ll eat the HTML in which this post is written! More likely, the legislature will back down at the first whiff of a legal challenge and go back to finding other, less obviously unconstitutional ways to impress their constituents with how much they care about “Protecting the Children” (or how little they care about free speech or know about how the Internet works).

In an earlier post, I mentioned an important new online child safety task force report that has just been released from the “Point Smart. Click Safe.” Blue Ribbon Working Group. It’s a great report and I encourage you to read the whole thing. It was my great pleasure to serve on this task force, and as we started finalizing our conclusions and recommendations, I started thinking about how much of what we were finding and recommending was consistent with what past online safety task forces had also concluded.

By way of background, over the past decade, five major online safety task forces or blue ribbon commissions have been convened to study online safety issues. Two of these task forces were convened in the United States and issued reports in 2000 (“COPA Commission”) and 2002 (“Thornburgh Commission“). Another was commissioned by the British government in 2007 and issued in a major report in March 2008 (“Byron Review“). Finally, two additional online safety task forces were formed in the U.S. in 2008 and concluded their work, respectively, in January (“Internet Safety Technical Task Force“) and July (“Point Smart. Click Safe.“) of 2009. [And yet another task force — the Online Safety Technology Working Group — was recently formed and has now gotten underway.]

In a new PFF white paper, ” Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” I walk through a chronological summary of each of these past task forces [click on covers of each report below to read them in their entirety] and highlight some of the similar themes and recommendations from them.

Altogether, these five task forces heard from hundreds of experts and produced thousands of pages of testimony and reports on a wide variety of issues related to online child safety. While each of these task forces had different origins and unique membership, what is striking about them is the general unanimity of their conclusions. Among the common themes or recommendations of these five task forces:

• Education is the primary solution to most online child safety concerns. These task forces consistently stressed the importance of media literacy, awareness-building efforts, public service announcements, targeted intervention techniques, and better mentoring and parenting strategies.
• There is no single “silver-bullet” solution or technological “quick-fix” to child safety concerns. That is especially the case in light of the rapid pace of change in the digital world.
• Empowering parents and guardians with a diverse array of tools, however, can help families, caretakers, and schools to exercise more control over online content and communications.
• Technological tools and parental controls are most effective as part of a “layered” approach to child safety that views them as one of many strategies or solutions.
• The best technical control measures are those that work in tandem with educational strategies and approaches to better guide and mentor children to make wise choices. Thus, technical solutions can supplement, but can never supplant, the educational and mentoring role.
• Industry should formulate best practices and self-regulatory systems to empower users with more information and tools so they can make appropriate decisions for themselves and their families. And those best practices, which often take the form of an industry code of conduct or default control settings, should constantly be refined to take into account new social concerns, cultural norms, and technological developments.
• Government should avoid inflexible, top-down technological mandates. Instead, policymakers should focus on encouraging collaborative, multifaceted, multi-stakeholder initiatives and approaches to enhance online safety. Additional resources for education and awareness-building efforts are also crucial. Finally, governments should ensure appropriate penalties are in place to punish serious crimes against children and also make sure law enforcement agencies have adequate resources to police crimes and punish wrong-doers.

The consistency of these findings from those five previous task forces is important and it should guide future discussions among policymakers, the press, and the general public regarding online child safety.  As I note in the paper, the findings are particularly relevant today since Congress and the Obama Administration — including 3 federal agencies (NTIA, FCC, & FTC) are actively studying these issues. So, in light of all that, I hope this short paper can shed some light on the collective wisdom of the past task forces. While more study of online child safety issues is always welcome — including additional task forces or working groups if policymakers deem them necessary — thanks to the work of these five task forces, we now have better vision of what is needed to address online safety concerns.

Five Online Safety Task Forces Agree [PFF – Adam Thierer] http://d.scribd.com/ScribdViewer.swf?document_id=17181137&access_key=key-z6cxfgrjkqaqtxbix&page=1&version=1&viewMode=

It appears that the long legal saga of the Child Online Protection Act of 1998 (COPA) has finally come to a close. This morning, according to AP, the U.S. Supreme Court rejected the government’s latest request to revive the law, which was stuck down as an unconstitutional violation of the First Amendment by lower courts and never went into effect.

COPA was an effort by Congress to modify the Communications Decency Act of 1996 (CDA) in response to the Supreme Court’s decision in Reno v. ACLU finding that the CDA was unconstitutionally over-broad. COPA sought to narrow the scope of regulation and protect minors from sexual material on the Internet by making it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. Although narrower than the CDA, COPA was immediately challenged and also blocked by lower courts because it was still too sweeping in effect. Moreover, the courts found there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

Following the initial challenge, COPA then became the subject of an epic, decade-long legal battle that finally concluded today when the U.S. Supreme Court refused to revisit the law. COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal today, lower court rulings stand and COPA will remain unconstitutional and unenforceable.

The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

While COPA is now dead and buried, it would be foolish to think this is the end of efforts to legislate on this front. Although it remains unclear what the legislative response will look like during a time of Democratic rule, I am certain that legislation will be floated in short order (i.e., “Son of COPA”) to try to get around the constitutional issues and regulate objectionable online content. If legislators were smart, they’d avoid legally risky solutions like more centralized filtering mandates or age verification requirements. They’d be on safer ground to consider going the subsidy route and finding a way to get parental control tools in the hands of more families and institutions. I’m not saying that I favor such subsidies, merely that such an approach would almostly certainly pass legal muster and probably wouldn’t even be challenged in court. They might also consider more public education / PSA-driven approached to online safety. Those approaches may end up finding more support in a Democratic Congress and administration anyway.

[More coverage at NYT, Reuters, CNet and Ars.]

This week, I have been up at Harvard University participating in another meeting of the Internet Safety Technical Task Force (ISTTF), of which I am a member. The ISTTF was organized earlier this year pursuant to an agreement between 49 state attorneys general (AGs) and social networking giant MySpace.com. A group of experts from academia, non-profit organizations, and industry were appointed to the Task Force, which is charged with evaluating the market for online child safety tools and methods and issuing a report on the matter to the AGs at the end of this year.  ISTTF members have been meeting privately and publicly in both Cambridge, MA and Washington, D.C. The Task Force has been very ably chaired by John Palfrey, co-director of Harvard’s Berkman Center for Internet & Society.

Although the ISTTF is looking at a wide variety of tools and methods associated with online child protection (ex: filters, monitoring tools, educational campaigns, etc.), many of the AGs who crafted the agreement with MySpace that led to the Task Force’s formation have made it clear that they are most interested in having the ISTTF evaluate age verification / online verification technologies.  In fact, at the start of this week’s session at Harvard Law School, AGs Martha Coakely of Massachusetts and Richard Blumenthal of Connecticut both spoke and made it abundantly clear they expect the Task Force to develop age and identify-verification tools for social networking sites (SNS). AG Blumenthal said we need to deal with “the dangers of anonymity” and repeated his standard line about online age verification: “If we can put a man on the moon, we can make the Internet safe.”  [Of course, putting a man on the moon took hundreds of billions of dollars and a decade to accomplish, but never mind that fact! Moreover, one could also argue that if we can put a man on the moon we can cure hunger, AIDS, and the common cold, but some things are obviously easier said than done. Finally, putting a man on the moon didn’t require all Americans or their kids to give up their anonymity or privacy rights in order to accomplish the feat!]

On many occasions here before, I have outlined various questions and reservations about proposals to mandate online age verification.  Last year, I also published a lengthy white paper on the issue and hosted a lively debate on Capitol Hill [transcript here] about this.  I also have discussed age verification in my book on parental controls and online child safety. [Braden Cox also talked about his experiences up at Harvard this week here, and CNet’s Chris Soghoian had a brutal assessment of this week’s proposals on his “Surveillance State” blog.]

In this essay, I will discuss the new fault lines in the debate over online age verification and outline where I think we are heading next on this front.  I will argue:

• There is now widespread understanding that it is extraordinarily difficult to verify the ages and identities of minors online using the methods we typically use to verify adults. Because of this, age verification proponents are increasingly proposing two alternative models of verifying kids before they go online or visit SNS…
• First, for those who continue to believe that we must do whatever we can to verify kids themselves, schools and school records are increasingly being viewed as the primary mechanism to facilitate that. This raises two serious questions: Do we want schools to serve as DMVs for our children? And, do we want more school records or information about our kids being accessed or put online?
• Second, for those who are uncomfortable with the idea of verifying kids or using schools, or school records, to accomplish that task, parental permission-based forms of authentication are becoming the preferred regulatory approach. Under this scheme, which might build upon the regulatory model found in the Children’s Online Privacy Protection Act of 1998 (COPPA), parents or guardians would be verified somehow and then would vouch for their children before they were allowed on a SNS, however defined.  But how do we establish a clear link between parents and kids?  And will parents be willing to surrender a great deal more information (about themselves and their kids) before their kids can go online? And, is it sensible to use a law that was meant to protect the privacy and personal information of children to potentially gather a great deal more information about them, and their parents?
• It remains very unclear how either of those two verification methods would make children safer online. Indeed, that could actually make kids less safe by compromising their personal information and creating a false sense of security online for them and their parents.
• It is highly unlikely the Internet Safety Technical Task Force will be able to reach consensus on this complicated, controversial issue. A small camp will likely flock to the sort of proposals mentioned above. Another, larger camp (including me) will flock to education-based approaches to child safety as well increased reliance on other parental empowerment tools and strategies, industry self-regulatory efforts, social norms, and better intervention strategies for troubled youth. But the age verification debate will go on and, as was the case over the past two years, the legal battleground will be state capitals across America, with AGs likely pushing for age verification mandates regardless of what the Task Force concludes.

Continue reading if you are interested in the details.

How We Could Verify Kids, and Why We Should Not Do It

Let’s assume that we want to achieve AG Blumenthal’s “man-on-the-moon” dream of verifying all kids before they go online. How would we do it?  There are really only two solutions: (1) full-blown national ID cards for kids, or (2) tapping school records about kids to somehow age-verify kids (sort of a “National ID card-Lite” scheme).

National ID Cards for Kids

The first scheme is fairly straightforward, but incredibly frightening to those of us who care about civil liberties. Basically, government could demand that all minors be issued the equivalent of a domestic passport or a national ID card. After all, minors aged 14 to 17 are already required to obtain a passport before they travel overseas. Minors under 14 must have both parents or legal guardians appear together to vouch for the child when applying for a passport. Conceivably, government could simply extend this model to incorporate a domestic identification requirement. Once the youngster had been issued such a domestic passport, it could be requested by others — including social networking sites — as proof of age. Sites could cross-reference a government national ID database to verify identity.

Clearly, however, imposing such a solution domestically would raise serious privacy concerns because it would require the collection, retention and processing of sensitive information about children.  Adults are not required to carry such a domestic passport or national ID card, so why should children? Indeed, all the same privacy concerns related to national ID cards for adults would be amplified with children because, as a society, we generally take extra precautions to protect the privacy of minors and their personal information. And a national ID card for kids would need to include a great deal of information about themselves to allow the card to be used by third parties online as an age-verifying tool. Government would need to issue an age-verified identity, user name, and password to every child.

Particularly concerning is the fact that a national ID card for children would require the creation of more government databases and bureaucracy. The potential for “mission creep” then enters the picture in that more tracking of children by government (and others) becomes possible. What other uses might there be for such information? We don’t know, and we probably don’t want to find out.

The costs of setting up and enforcing such a system would be substantial and must also be considered. Although the cost of digital storage continues to fall, we’re talking about potentially massive digital databases here. But the more important cost factor is the human time and effort that would go into  collecting, processing, and organizing such records and databases.

For those reasons, a government-issued ID card or age verification scheme for kids is a nonstarter. It would raise grave privacy concerns, induce public paranoia, probably encourage a great deal of evasion, and require significant government expenditure to enforce. Moreover, a national ID card would do little to prevent youngsters from visiting offshore sites.

Using the Schools to Help Verify Kids

So, let’s work from the assumption that National ID cards for kids is not going to fly as an online identity authentication solution.  The only other realistic scheme would involve getting the schools involved in the process.  Why?  Because to paraphrase Willy Sutton: “That’s where the data is.”  Schools have more information about our children than probably every other institution or organization combined.  They have very detailed records about kids, their ages and much more, which makes schools a logical candidate for participation in a possible age verification system for minors.  But involving schools in any age verification scheme would raise serious privacy concerns and administrative problems.

Depending on how the scheme worked, the administrative burdens imposed on schools could be significant. Someone at each school would have to be in charge of answering phones calls and e-mails from potentially hundreds of website operators looking to age-verify minors. Who will be liable if things go wrong? The school? The school district? An employee in the school’s administrative department who accidentally releases thousands of digital records? And will schools receive the additional funding needed to administer whatever scheme is mandated?

Moreover, if schools are required to create more accessible databases containing personal information about minors, who else besides social networking websites would be given access? Data breaches would become a real concern for both students and schools alike. Such a scheme could run up against federal or state laws. For example, the Family Education Rights and Privacy Act of 1974 makes it illegal to release school records without written permission from parents. Both parents and government officials have long demanded that access to school records be tightly guarded because, as a society, we take the privacy of our children very seriously.

Thus, serious questions remain about the wisdom and practicality of roping the schools into the age verification process. Most schools and school districts are already over-burdened with federal and state mandates and probably wouldn’t like the sound of additional mandates of this variety.  But what if a technology vendor could serve as the middleman and facilitate the easy transfer of some basic data about kids from the school system in an effort to provide digital credentials? That’s probably where we are heading.  Even the most vociferous advocates of age verification for minors must realize how absolutely radioactive this issue could become since school records about our kids are in play here.  Identity theft concerns are already running at an all-time high in our country and the thought of being required to surrender more info about our kids in this environment is not going to go over well with many parents.

But, again, what if we could keep to a minimum the amount of data being transferred about the child to the vendor or the SNS?  Perhaps at the beginning of each school year when a minor is registering they could be given a “secure” digital token or ID number that only associated a grade year (i.e., “sophomore”) with their name, and little or no additional info was included in that token in order to minimize the threat of identity theft or privacy violations.  Of course, the fewer pieces of information contained in that token or credential, the less likely it will be a credible verification tool, or the more likely it is it will be easy to forge or defeat (especially by kids themselves).

Regardless, whether we like it or not — and I do not like it one bit — schools are now at the center of the online age verification debate. It will be very interesting to hear what the educational community itself has to say about this development going forward.  Incidentally, no one from the educational community was present at Harvard this week as these proposals were flying.  Something tells me that school administrators and educational officials aren’t going to look too kindly on proposals that would turn them into the equivalent of a DMV for kids.

How about Parental Permission Slips for Online Verification?

Another potential way to go about online verification is to avoid verifying the kids directly and instead just verify parents (or guardians) and then get them to vouch for their children.  Some age verification advocates are now calling for such parental consent-based forms of child verification.  Specifically, they are now attempting to drive regulation through the prism of the Children’s Online Privacy Protection Act (COPPA) of 1998.

By way of background, COPPA required websites that marketed to children under the age of 13 to get “verifiable parental consent” before allowing children access to their sites. Generally speaking, the goal was to make sure that such websites were not collecting personal information about children without getting parental permission. The Federal Trade Commission (FTC), which is responsible for enforcing COPPA, adopted a sliding scale approach to obtaining parental consent. The sliding scale approach allows website operators to use a mix of the methods to comply with the law, including print-and-fax forms, follow-up phone calls and e-mails, and credit card authorizations. The FTC also authorized four “safe harbor” programs operated by private companies that help website operators comply with COPPA.

In a February 2007 report to Congress about the status of the COPPA and its enforcement, the FTC said that no changes to COPPA were necessary at this time because it had “been effective in helping to protect the privacy and safety of young children online.” In discussing the effectiveness of the parental consent methods, however, the agency also said that “none of these mechanisms is foolproof” and that “age verification technologies have not kept pace with other developments, and are not currently available as a substitute for other screening mechanisms.” This seems to imply that the FTC does not regard COPPA’s parental consent methods as the equivalent of perfect age verification.

Nonetheless, what should be evident here is that COPPA’s parental consent framework could serve as a vehicle for pushing through greater regulation of all social networking sites, not just those sites geared toward kids under 13.   Indeed, we have already seen that proposed at the state level.  For example, in the debate that took place over age verification in the North Carolina statehouse last summer, a parental permission-based verification proposal supported by North Carolina Attorney General Roy Cooper was billed as a way to strengthen and expand the COPPA framework.  (Never mind the fact that COPPA is a federal statute, or that the state of North Carolina is likely barred from regulating Internet speech and commerce thanks to the First Amendment and the Commerce Clause of the Constitution!)

In other words, future age verification mandates could arrive in the form of COPPA amendments, or at least cite COPPA’s regulatory framework as precedent.  Specifically, the proposal would be to: (a) extend COPPA’s coverage to kids up to the age of 18 and then (b) broaden the range of SNS sites that are covered by its parental consent requirements.

There are many problems associated with such a proposal, and I will get to some of them in a moment. But here’s the more interesting question that few have asked: Is COPPA really working?  It is very much unclear to me that COPPA actually works as billed, but to the extent it does, it is likely because of the very limited scale and nature of the operations it covers.  As I have said in my past writing on the issue, there is a direct relationship between the size of a site and the likelihood of success in attempting to verify its users / members. Of course, that is hardly surprising.  But let’s get a little more concrete about why that is important.  Here are the two reasons that I believe the COPPA / parental consent regime has generally worked so far, or at least hasn’t failed miserably:

(1) Many smaller sites charge a fee for admission; and

(2) The functionality of those sites is usually tightly limited. They are closed, walled gardens.

Regarding the first point: Obviously, the more a site charges for access, the more likely it is that the parent / guardian pays attention to what their kid is doing.  Of course, that doesn’t mean a bad guy couldn’t still get into those “verified” environments under false pretenses.  And there’s the problem of minors with access to credit cards.  Moreover, even assuming credit cards worked as an age verification method, there is the more practical question of whether lawmakers have the guts to mandate that every social networking site in the land start charging admission for access.  Since almost all SNSs are free-of-charge today, that is not going to be a very popular mandate!

Nonetheless, for very small, niche-oriented social networking sites geared toward younger kids, credit cards and fees are part of the reason people think COPPA has “worked.”  In essence, it acts as a bit of a roadblock or hassle thrown in the way of access, and that gets parents thinking and talking to the kids about those sites. That is the argument put forward by Denise Tayloe of Privo, one of the four FTC-approved COPPA safe harbor providers.   Ironically, Tayloe has noted that one of the problems associated with the current COPPA regime is that “Children quickly learned to lie about their age in order to gain access to the interactive features on their favorite sites. As a result,” she notes, “databases have become tainted with inaccurate information and chaos seems to be king where COPPA is concerned,” she says.

Despite these problems, Tayloe argues that COPPA serves an important role.  Even though “there is no perfect solution” and it is not possible to completely “stop a child from lying and putting themselves at risk,” Tayloe believes that COPPA “provides a platform to educate parents and kids about privacy.”  Of course, providing a platform to educate parents and kids about online privacy or safety is very important, but it is not necessarily synonymous with strict age verification.  And we don’t really have any idea what level of parent-child interaction COPPA incentivizes.  More importantly, we don’t really have any good data regarding the accuracy of claims made pursuant to COPPA’s requirements regarding the relationship between parents and the kids seeking access to the site.  How many people (kids or adults) were able to gain access under false pretenses? We don’t know.

Nonetheless, the operating assumption here is that by creating an added economic hurdle or barrier to entry (in the form of the hassle of filling out paperwork or forms), COPPA gets some parents (perhaps most?) to put more thought into what their kids are doing online, and that somehow improves online safety in larger scheme of things.  The problem is that that does not necessarily mean that their kids are operating in perfectly “secure” or “verified” environments.  The danger is that – to the extent some “bad guys” are getting on those sites under false pretenses – kids and parents may fall prey to a false sense of security after they are told the site is COPPA-verified.  Of course, COPPA wasn’t put on the books to keep “bad guys” away from kids online; it was about keeping site operators from collecting personal information about kids.

The second reason COPPA has “worked” to a limited degree is that SNS sites geared toward younger kids tightly limit functionality.  In essence, the site administrators “cripple” the sort of functionality we find in SNS sites geared toward older kids.  That fact alone makes these sites far less likely to be subject to fraudulent entry or dangerous interactions.   If I am an older teen or a pervert, why would I ever want to gain access to a site that has nothing more than drop-down menus and a few buttons to click on when interacting with others?  Thus, the primary reason that kids are likely safer in those environments has almost nothing to do with COPPA’s parental consent mechanisms and almost everything to do with the fact that most of the sites it covers are tightly controlled walled gardens with very limited functionality.

With these facts in mind, let’s gets back to the ultimate question: What would happen if we tried to apply COPPA to all social networking sites for kids of all ages? The threshold question that would need to be answered remains the same as it does today: How do we verify the parent-child relationship when someone asserts they are the parent or guardian?  That’s a very thorny question.  But let me just list out the many other questions that everyone is overlooking here:

(1) What sort of mechanisms will need to be put in place to guarantee that the parent or guardian is who they claim to be (for both initial enrollment and subsequent visit authentication)?  Sign-and-fax forms can be easily forged, so credit cards (and perhaps mandatory user fees) will likely become the default solution. A third method, follow-up phone calls, just doesn’t seem practical.  But might lawmakers demand a mix of all of the above?

(2) Regardless, how burdensome will those mandates be for parents / guardians?

(3) And how burdensome will those mandates be for SNS site operators? What kind of compliance costs / legal penalties are we talking about?

(4) Will the barriers to site enrollment become economic in character such that it requires previously free social networking sites to charge admission?

(5) If so, could that be a disadvantage to low-income families / youth?

(6) If compliance costs go through the roof for SNS sites, will this be a recipe for massive industry consolidation in order to comply with the mandates?

(7) Who is collecting the massive databases of information created by such a mandate for all SNS? Who has access to that data? What might government use it for?

(8) Will this new regime be applicable to offshore sites? And will kids flock to offshore sites as a result of such mandates on domestic sites? If some do, how will we stop them?

And so on.  Bottom line: The future of age verification battles will likely be increasingly tied up with COPPA and the question of how well parental permission-based forms of authentication might work. It is unlikely, however, that such a framework could be easily applied on “Internet scale.”  There is a world of difference between something like Disney’s “Club Penguin” and MySpace, Xanga or Bebo.  And with social networking capabilities being integrated into every site and service these days — from CNN.com to Microsoft’s Xbox Live service — one wonders how that will magnify the compliance costs and hassles for all involved.  Are parents really going to be expected to verify themselves and then their kids for every “social networking site” their kids want to visit?  That seems unnecessary, unworkable, and potentially counter-productive.

Finally, the irony of a proposal to expand COPPA in this fashion is that lawmakers would be using a law that was meant to protect the privacy and personal information of children to potentially gather a great deal more information about them, and their parents!  It’s important we not overlook the privacy implications of any effort to expand COPPA to do something it was not originally intended to cover.

Conclusion

It will likely be very difficult for the Technical Task Force to reach consensus on these controversial and complicated issues.  There are many challenging technical, legal, and even philosophical issue in play here.  The problem is that this Task Force is charged with looking at technical solutions and yet most child safety advocates and academics on the Task Force are of the mind that technical solutions are only one part — and probably the smallest part — of the sort of “layered solution” to online child safety that I describe in my book on “Parental Controls and Online Child Protection.” As I argue in that book:

“the best answer to the problem of unwanted media exposure or contact with others is for parents to rely on a mix of technological controls, informal household media rules, and, most importantly, education and media literacy efforts.”

In sum, we need to get serious about talking to our kids about online safety and proper online behavior. Education is the key, and government has a major role to play in that regard in the classroom and through awareness-building efforts. And technical tools that empower parents to better monitor and guide their child’s online experiences can help too. Social networking sites and other online service providers can offer more of those tools and also take additional steps to improve the safety of their sites and encourage a dialog about appropriate and inappropriate online behavior. Again, it’s a multi-layered effort with education and communication at the core of the plan.

It’s not like I am saying anything new here. Indeed, that layered approach was the recommended approach of two previous online safety blue ribbon task force efforts: The 2000 COPA Commission and the 2002 National Academy of Sciences “Thornburgh Commission.” And every major book about online child safety published over the last 5 years has come to the same conclusion.

But that is not likely going to be enough for state attorneys general. There is no other way for me to state this than to just come right out and say it: The AGs are looking for a silver-bullet technical solution to a complex problem they do not fully understand.  And age verification schemes are the technical bullet du jour.

Alas, for all the reasons I have stated here and elsewhere, age verification schemes are likely to fail miserably.  Even if age verification systems worked as billed, it is unlikely that kids would really be any better off.  All the academic research in this field points to a single, inescapable conclusion: The primary danger to kids online is not adult predators, it is other kids.  In particular, it is peer-on-peer harassment and cyber-bullying.   As parents and a society, we have to do more — a lot more — to address that problem.

Age verification schemes, however, aren’t going to help us solve that problem.  Worse yet, by creating the illusion of safety, it could compromise our children’s privacy in the process and create a false sense of security when kids or their parents come to believe they are operating in “trusted” online environments.  For the sake of our children, it is essential we not fall prey to such a fatal conceit.

Another chapter in the seemingly never-ending saga of the Child Online Protection Act (COPA) of 1998 was written this week when the Third Circuit Court of Appeals upheld a lower court ruling striking down COPA, which would require Web operators to restrict access to large amounts of online speech and expression. [The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here].

The DOJ will likely appeal the decision, yet again, to the Supreme Court. I can’t be certain, but I know of no other free speech-related law that has made THREE trips to the Supreme Court for review. (If readers know of any laws that can match that record, please let me know). It really is quite amazing, and even a little outrageous, when you think about it. After all, just think of all the time, energy and money that has gone into this 10-year legal fiasco. I know it is the DOJ’s job to defend congressional enactments before the courts, but how might we have spent that time and money if all this litigating wasn’t going on?? Regulation always has opportunity costs and in this case those costs have been 10 years of wrangling among lawyers. Those resources could have been used to educate parents and kids about online safety; to create and disseminate more and better private screening tools; and so on. Alas, we instead have mounds of paper piling up in the courts and millions being spent with nothing to show for it. Anyway, Declan has an excellent summary of the 3rd Circuit’s ruling here, and my friends at CDT have a statement here. But Susan Crawford has the best analysis of the decision in her essay on “Understanding COPA’s Journey.” She begins by summarizing the key findings:

The Third Circuit yesterday announced a host of reasons why COPA is insufficiently narrowly tailored, many based on the terms of the statute. The coverage of the HTM [“harm to minors”] definition is vague, the court felt, and so publishers won’t be able to tell in advance whether their operations are all subject to the COPA constraint (what if only a tiny portion of a web site has arguably HTM material on it?) or what fits within the HTM definition (are you supposed to be protecting 3 year-olds as well as 16 year-olds?). The court also found that having to implement credit card, debit account etc. shields would burden the providers of free web sites whose operations are nonetheless “commercial” and so covered by COPA. This was another instance of insufficient tailoring. But the key element here is that the Third Circuit held that the government had to carry the burden of showing that filters were less effective than COPA, and it failed to do that. In fact, it appears that filters are both less restrictive and more effective than the operation of the statute, based on extensive findings of fact by the district court below.

So, what will the Supreme Court say about that argument when COPA makes its unprecedented 3rd appearance before the judges? Susan says:

This approach may be difficult for the current Supreme Court to agree with. It was difficult enough the last time. The analytical framework adopted by the Third Circuit follows what Justice Kennedy said then – that it is the Court’s job to consider what alternatives are out there in the world to help parents, and to decide whether they’re more effective/less restrictive than COPA. The point, Justice Kennedy said, is to is ‘‘to ensure that speech is restricted no further than necessary,’’ not to consider ‘‘whether the challenged restriction has some effect in achieving Congress’ goal, regardless of the restriction it imposes.’’ So the court’s job is not to ask whether COPA would provide government with another tool to address harmful speech in the name of protecting kids. That standard would justify any restriction on speech. Instead, the inquiry should be ‘‘whether the challenged regulation is the least restrictive means among available, effective alternatives.’’ Right now, filters are more effective and less restrictive than COPA (or, at least, the government didn’t prove that they weren’t), and so the government loses. Never mind that filters are voluntary and that a lot of parents choose not to use them – that’s the parents’ choice. Filters are available. The government’s argument to the Third Circuit, and probably to the Supreme Court, will be that this is a maddeningly flawed analytical approach. The government would like to see a more protective, quasi-parental approach (on the assumption that parents are busy shoring up the failing economy and can’t be counted on to be watching their kids or caring what they see). Justice Breyer was very sympathetic to that view the last time around. His point is that filtering doesn’t count as an alternative to COPA. (‘‘The presence of filtering software is not an alternative legislative approach to the problem of protecting children.”) Doing nothing, legislatively, will always be less restrictive than doing something. He also thinks COPA isn’t much stronger than the Miller obscenity test and would only modestly burden adult access to legal adult speech. Veteran SCT-watchers will count noses, in this case as in Fox v. FCC, and try to figure out what will happen next. Last time around, Justice Kennedy’s majority opinion was joined by Stevens, Souter, Thomas, and Ginsburg, all of whom are still there. Justice Stevens wrote a concurring opinion, which was joined by Justice Ginsburg. Justice Scalia filed a dissent, as did Justice Breyer, who was joined by Chief Justice Rehnquist (now Roberts) and Justice O’Connor (now Alito). So maybe the 5-4 will stay in place. But if Thomas goes over to the dissenting side, and Justice Breyer’s analytic approach (”what do you mean, filtering is an alternative?”) gathers steam, COPA could survive its third trip to the SCT and be upheld.

So, it remains to be seen whether the third time is the charm for the DOJ and they are able to finally convince the Supreme Court to enforce COPA. And Susan is right in noting that all eyes will be on the decision in Fox v. FCC since that will be the next major free speech case before the Court.

As Susan rightly concludes: “This case is a big deal because it turns on the question whether private, edge-based solutions to speech issues should be taken seriously. I think they can, and I don’t want to see a lot of government tinkering with the sources of speech…. Let’s hope the government drops the COPA effort, which has now stretched on for almost ten years.”

Indeed.

The USA Today editorial board published a nasty piece today belittling MySpace.com’s recent efforts to implement more safeguards for its users. Despite the fact that MySpace made over 70 promises to the Attorneys General as part of the agreement–the entire agreement is summarized here–that’s still not good enough for the USA Today’s editorial board, which wants full-blown identity verification before anyone is allowed on a social networking site:

“Even in the absence of a perfect software solution, interim steps are possible. How about using databases of drivers’ licenses to cross-check ages? In more than 20 states, they are public records. The point is, more effective safeguards are needed now, …. MySpace [should be] moving faster to set up age and ID verifications, not just study them.”

Well, where do I begin? I get so frustrated when I see comments like this because it is abundantly clear to me that people don’t think things through when it comes to age verification. As I pointed out in my lengthy PFF report, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions,” age verification is extremely complicated, and it would be even more complicated in this case because public officials are demanding the age verification of minors as well as adults, which presents a wide array of special challenges and concerns.

What Age Verification Really Is: The Death of Online Anonymity We need to begin by understanding what age verification really is. By definition, mandatory age verification represents an effort to make online anonymity a crime. In simple terms, citizens would be forced to “show their papers” at the door of every website or else run the risk of being denied access–simply because they do not want to surrender their name or age.

Think about what that means. It’s easy to take the benefits of online anonymity for granted. There are millions of people who comment anonymously on blogs like this one every day, or write anonymous book or product reviews on Amazon.com or eBay, or who just chat with others about various topics under the cloak of anonymity. It is a wonderful thing.

Of course, anonymity has some downsides. The downside of people speaking their minds freely is that, well, people will speak their minds freely! And, yes, on occasion, that means some people will talk smack and just generally be jerks while disguising their identities because don’t want to stand by their comments or be accountable for them. But that’s the cost of free expression. If you want to live in a free society and encourage a vibrant exchange of views, there will be times when that means we must defend the right of people to say incredibly silly or even insulting things.

And God knows there are plenty of silly and insulting things being said on social networking sites every second of the day. But there are also countless moments of joy and wonder, when people come together and communicate with each other, or share culture with others in incredibly creative and social-beneficial ways. And, again, a great deal of that communication or culture-sharing is done in a completely anonymous fashion.

For example, as I have mentioned here before, I am fanatical about cars and home theater gadgets. I spend a lot of my free time hanging out at a small social networking site for fellow Lotus car lovers called Lotus Talk. And I also spend a fair amount of time at the amazing AVS Forum, which is the world’s biggest chat board for home theater and A/V stuff. On these sites, thousands of random strangers come into contact every day. We create profiles, we post pictures, we share stories, we talk about life and our passions for cars and A/V gadgets. This is very the essence of social networking. And, for the most past, we are all doing it anonymously. And it is happens everywhere online, every second of every day. Do we really want to make it all illegal?

Practical Considerations: The Complexities of Human Identification OK, so there might be some downsides to making anonymity illegal online. But some critics would say: “So what, we need to make people show their papers at the door of every website–at least for those social networking sites where kids hang out–to make sure kids are safe online.” Well, that’s easier said than done.

At least in theory, the problem that age verification is supposed to solve is to keep older people away from youngsters, at least in certain circumstances. Also, some proponents wish to use age verification to ban preteen access to social networking sites. To accomplish either of those objectives, we must be able to effectively verify everyone’s age by consulting reliable records about those looking to create an account on a social networking site. In other words, when Janie Smith comes to a social networking site for the first time, the site must be able to verify not only that she is Janie Smith, but that she really is as old as she claims to be. But, again, such verifying is easier said than done.

Consider first what is required to verify an adult’s identity. When government officials or even corporations seek to verify someone identify or age, they can rely on birth certificates, Social Security numbers, driver’s licenses, military records, home mortgages, car loans, other credit records, or credit cards.

But even with all those pieces of information, challenges remain. Is the information publicly accessible or restricted by legal or other means? Are all the underlying pieces of information and documentation trustworthy, or have they been manipulated or misreported in some way? Has someone faked his or her identity? And so on. Thus, while the identity authentication systems–both public and private–have improved significantly in recent decades, they still face some inherent challenges and concerns about fraud.

The current concern about “identity theft” demonstrates the complexities and level of difficulty involved in stamping out this problem. Even U.S. passports, which are relatively robust identification documents that contain authentication data, are occasionally forged with success. “It is safe to assume that future age verification efforts will yield failures on par with other identification/authentication mechanisms,” says information security expert Jeff Schmidt, former CEO of Authis, Inc.: “When one considers how frequently college students successfully circumvent age verification requirements in person and with government issued documents, one can begin to grasp the challenges that lie ahead.”

Importantly, we’re talking just about adults here. When the focus of identity verification efforts shifts to minors, the endeavor becomes far more complicated. Minors don’t have home mortgages or car loans. They don’t have military records and most have never worked. Most don’t have driver’s licenses or credit cards either.

Of course, minors do have birth certificates, Social Security numbers, and school records, but both parents and government officials have long demanded that access to those records be tightly guarded. That’s for a very good reason: As a society, we take privacy seriously—especially the privacy of our children. Laws and regulations have been implemented that shield such records from public use, including the Family Educational Rights and Privacy Act of 1974 and various state statutes.

Also, to the extent that age verification of adults works for some websites–online dating services, for example–it is important to realize that in most of those cases the users want to be verified. In that context, identify authentication increases marketability of a user’s “profile,” or it allows him or her to participate more actively in an environment where trust is essential. This fact makes it far more likely that age verification will work because user compliance is driven by market forces, not regulation. That compliance will not be the case when users–especially kids–inherently resist the idea of being age-verified before they go onto certain websites. (We should also not forget that some kids will share their online credentials or passwords with friends.)

It is also important to realize that age verification and background checks are not synonymous. Information security expert John J. Cardillo, President and CEO of Sentinel, a leading authentication firm, argues that:

Most people are ignorant of what we do. They hear the words “check” or “verification” and they assume a full background check will be run on the individual. When this is sponsored by an AG, the chief law enforcement officer of their state, there’s a perception that the criminal background checks are inclusive in whatever they’re proposing. Age verification, on its own, doesn’t indicate whether or not a person is a convicted sex offender. Mandated age verification, as proposed, would allow the hundreds of thousands of offenders… who are over 18, unrestricted access to sites. Worse, it would allow these offenders the ability to vouch for children that might or might not exist. This is where it gets most dangerous. People might assume that “verified” users have undergone some type of vetting, and let their guard down just that little bit the offenders need to exploit. In the case of convicted sex offenders, age verification actually helps them by giving them an additional layer of legitimacy.

This points to the danger of creating a false sense of security online by mandating a solution that doesn’t address the real problem.

Finally, the special challenges raised by the nature of the Internet and online communication must be reiterated. Finding a dependable source of identity or age information and then reliably matching it to someone thousands of miles away on the Internet (perhaps in another jurisdiction, or even another country) is a daunting challenge—made even more difficult by the fact that a remote individual may be actively attempting to subvert the age verification process. Solving this problem necessitates authentication data that are appropriate for online interaction. In the real world, we perform in-person authentication with a photo or physical description; the online world requires a username/password combination, biometric authenticator, or physical security token. An arms-race scenario is obviously at work here, and because a perfect solution is impossible, we must guard against a false sense of security. Lastly, because technology is evolving at such a rapid pace in this area, there is a risk that legislative solutions will become obsolete very rapidly.

In light of those complications, how would government, social networking sites, or anyone else, go about age-verifying minors online?

Do We Really Want National ID Cards for Kids? In the extreme, government could demand that all minors be issued the equivalent of a domestic passport or a national ID card. After all, minors aged 14 to 17 are already required to obtain a passport before they travel overseas. Minors under 14 must have both parents or legal guardians appear together to vouch for the child when applying for a passport. Conceivably, government could simply extend this model to incorporate a domestic identification requirement. Once the youngster had been issued such a domestic passport, it could be requested by others—including social networking sites—as proof of age. Sites could cross-reference a government national ID database to verify identity.

Clearly, however, imposing such a solution domestically would raise serious privacy concerns because it would require the collection, retention and processing of sensitive information about children. Adults are not required to carry such a domestic passport or national ID card, so why should children? Indeed, all the same privacy concerns related to national ID cards for adults would be amplified with children because, as a society, we generally take extra precautions to protect the privacy of minors and their personal information. And a national ID card for kids would need to include a great deal of information about themselves to allow the card to be used by third parties online as an age-verifying tool. Government would need to issue an age-verified identity, user name, and password to every child.

Particularly concerning is the fact that a national ID card for children would require the creation of more government databases and bureaucracy. The potential for “mission creep” then enters the picture in that more tracking of children by government (and others) becomes possible. What other uses might there be for such information? We don’t know, and we probably don’t want to find out.

The costs of setting up and enforcing such a system would be substantial and must also be considered. Although the cost of digital storage continues to fall, we’re talking about potentially massive digital databases here. But the more important cost factor is the human time and effort that would go into to collecting, processing, and organizing such records and databases.

For those reasons, a government-issued ID card or age verification scheme for kids is a nonstarter. It would raise grave privacy concerns, induce public paranoia, probably encourage a great deal of evasion, and require significant government expenditure to enforce. Moreover, a national ID card would do little to prevent youngsters from visiting offshore sites.

Sources of Age Information Thus, if social networking sites are going to age-verify minors, they will likely need to devise or rely on some other, nongovernmental solution. The most commonly proposed solutions typically fall into the following groupings:

(1) Credit cards as approximate age proxies; (2) Driver’s licenses as approximate age proxies or as a source of date of birth; (3) Birth certificates as a source of actual date of birth; (4) Parents or guardians vouching for minors; (5) Schools vouching for minors; (6) Third parties vouching for minors; and, (7) Biological or biometric determination of age.

I won’t summarize all them here since I do so in my longer PFF report on the issue. But let me just point out the deficiencies of the two leading proposals: Credits cards and parents vouching for children.

(1) Credit Cards as Approximate Age Proxies: Credit cards are often viewed by policy makers as the silver bullet solution for age verification. Even though credit card companies typically do not wish their cards to be used as age verification tools, government has advocated their use in that way in the past. But they are not a silver bullet.

“Mere possession of a credit card is not a reliable assertion of identity or age,” argues Jeff Schmidt. Credit cards can be a rough proxy for age on the assumption that only adults over the age of 18 have credit cards, but that assumption is false. Many minors are given credit cards by their parents. Youngsters can borrow or steal credit cards from their parents or others. And Schmidt notes that newly created stored value cards, specifically marketed for use by children, “are in many cases indistinguishable from actual credit cards—both in physical appearance and in the back-end transaction processing systems.” Sentinel’s John Cardillo points out additional reasons why credit cards are not effective age verification tools:

When a card is used for verification purposes, an authorization on that card is run for $1.00 (or less), however a charge isn’t put through. The card typically isn’t reconciled against any database for name and/or age, nor is a signature checked. Because of the insignificant dollar amount, the only thing that’s checked for security purposes, in some instances, is zip code. Anyone who’s ever bought gasoline with a credit card knows this to be true. Our names and ages aren’t checked at the pump. Check your statement online next time you gas up. You’ll see an authorization for $1.00 and the actual charge a few days later. The same merchant banks handle the transactions online. In other words, in most cases, all that’s being verified is that the card account isn’t closed or stolen. Who’s using it is irrelevant.

Moreover, “many parents may feel uncomfortable giving their credit card number online at children’s Web sites where there is no [commercial] transaction involved,” notes a coalition of major commercial organizations, including the American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers, The Direct Marketing Association, Inc., and Magazine Publishers of America. In a June 2005 filing to the Federal Trade Commission, those organizations noted that “in light of current online scams, heightened concerns about online security, and the rise of such practices as phishing, parents may be reluctant to provide credit card numbers absent a transaction.” But that begs the question: If lawmakers require social networking sites to process a financial transaction to age-verify, is that fair? In particular, is it fair for low-income families? And what about those families that do not possess a credit card?

Finally, the law is not even settled about using credit cards for access to adult-oriented websites. The Child Online Protection Act (COPA) was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites. The measure provided an affirmative defense to prosecution if a website operator could show that it had made a good faith effort to restrict site access by requiring a credit card, adult personal identification number, or some other type of age-verifying certificate or technology. But the legislation was immediately challenged and has gone to the Supreme Court for review twice. And the law is still being debated in a lower court. Thus, almost 10 years after its initial passage, the legislation remains stuck in jurisprudential limbo after endless legal wrangling about its constitutionality.

Incidentally, COPA established an expert Commission on Online Child Protection to study methods for reducing access by minors to harmful material on the Internet. As part of its final report, the COPA commission said that credit card-based age verification would be completely inappropriate for instant messaging and chat, which were the precursors of social networking. The commission found: “This system’s limitations include the fact that some children have access to credit cards, and it is unclear how this system would apply to sites outside the U.S. It is not effective at blocking access to chat, newsgroups, or instant messaging.”

(2) Parents or Guardians Vouching for Minors: Legislation has been floated in a few states, such as North Carolina, that would make it illegal for a minor to maintain an account or webpage on a social networking site “without the permission of the minor’s parent or guardian and without providing such parent or guardian access to such profile web page.” Similar measures were recently introduced in North Carolina and Connecticut that would require social networking sites not only to obtain parental approval but also take steps to verify that they are the actual parents of the child.

This approach will appeal to many because it can be likened to a parent signing a “permission slip” for a child. Unfortunately, parental permission-based approaches are more complicated for online activities. Because websites are far away from the parents, how is the site operator going to ensure that the person vouching for the child’s age is really the parent or even an adult? Would the verifier mail or fax notarized documents? Those documents can be forged, of course. Mandatory follow-up phone calls would be cumbersome, costly, and potentially viewed as intrusive. And the use of credit cards to satisfy the permission requirement might raise some of the same problems already discussed above.

Despite these potential drawbacks, this was the general framework established by the Children’s Online Privacy Protection Act (COPPA) of 1998, which required websites that marketed to children under the age of 13 to get “verifiable parental consent” before allowing children access to their sites. The Federal Trade Commission (FTC), which is responsible for enforcing COPPA, adopted a sliding scale approach to obtaining parental consent. The sliding scale approach allows website operators to use a mix of the methods mentioned above to comply with the law, including print-and-fax forms, follow-up phone calls and e-mails, and credit card authorizations. The FTC also authorized four “safe harbor” programs operated by private companies that help website operators comply with COPPA.

In a recent report to Congress, the FTC said that no changes to COPPA were necessary at this time because it had “been effective in helping to protect the privacy and safety of young children online.” In discussing the effectiveness of the parental consent methods, however, the agency also said that “none of these mechanisms is foolproof” and that “age verification technologies have not kept pace with other developments, and are not currently available as a substitute for other screening mechanisms.” This seems to imply that the FTC does not regard COPPA’s parental consent methods as the equivalent of perfect age verification.

And the marketplace experience with COPPA so far reflects that conclusion. One of the problems associated with the current COPPA regime is that “Children quickly learned to lie about their age in order to gain access to the interactive features on their favorite sites,” notes Denise G. Tayloe, CEO of Privo, Inc., one of the four FTC-approved safe harbor programs. “As a result, databases have become tainted with inaccurate information and chaos seems to be king where COPPA is concerned,” she says. Parry Aftab of Wired Safety confirms this, noting that: “Preteens quickly learned that if they say they are under thirteen they will be prohibited from using many sites. So they regularly lie about their age everywhere online.”

Despite these flaws, Tayloe argues that COPPA serves an important role. Even though “there is no perfect solution” and it is not possible to completely “stop a child from lying and putting themselves at risk,” Tayloe believes that the law “provides a platform to educate parents and kids about privacy.” Of course, providing a platform to educate parents and kids about online privacy or safety is very important, but it is not necessarily synonymous with strict age verification.

Nonetheless, these permission-based verification schemes might work reasonably well for smaller, closed online communities in which the kids and parents are willing to take the time (and expense) to undertake extensive authentication. For example, smaller social networking sites such as ZoeysRoom.com, Imbee.com, ClubPenguin.com, and Tweenland.com have extremely strict enlistment policies, primarily because they target or allow younger users. As Sue Shellenbarger of the Wall Street Journal explains:

The under-16 sites pose few of the hazards linked to networking sites for older people. The activities range from chats and blogging to creating virtual pets or characters and acting out roles in virtual cities. For a child to register, the sites typically require a parent’s email permission, a parental signature on a permission form, or a parent’s credit card verification. Some limit young children’s interchanges to drop down menus of preapproved words and phrases. Most filter content for inappropriate material and employ live adult monitors who ensure that kids’ conversations don’t stray off course. Some limit chats or blog access to participants who are already preapproved and already known to a child’s family.

Ironically, one can probably safely assume that the kids using such services are not in the high-risk group discussed earlier. The parents who use such services are probably doing a fine job of mentoring their kids and don’t really need to resort to such restrictive solutions. Nonetheless, such highly restrictive “walled garden” approaches do provide parents with greater ease of mind. That’s not necessarily because of the strict enlistment policies so much as the extreme limitations on what kids can do on those sites or with whom they can communicate while online.

But regardless of how well the above-mentioned parental consent schemes work in practice for these smaller, more closed online communities–and some experts, like Cardillo, do question how well they actually work–such solutions lack scalability. Schemes that demand laborious and expensive enrollment requirements, or that greatly limit functionality and interactivity after users sign up, will almost certainly not work for larger social networking sites with a massive community of users. The administrative burdens would be significant for both site operators and parents alike. For example, Parry Aftab notes that COPPA has made it much more difficult for some smaller website operators to staff afloat. “The cost of obtaining verifiable parental consent for interactive communications is very high, estimated at more than $45 per child, and even at that price [consent is] difficult to obtain.”

And because users would sacrifice a great deal of autonomy and functionality once online, many would likely rebel against the system or would seek to subvert it in some fashion. If such a system significantly slows or impedes the creation of new accounts for domestic social networking sites, it will create a perverse incentive for kids to seek other sites with less-restrictive policies, including offshore sites.

Conclusion There are many other issues I haven’t mentioned here that deserve consideration. I’ll just check off a few:

• Assuming we go through with this, who is aggregating all this data? Who has access to the databases? How might that data be used?

• Is all this constitutional? Won’t there be First Amendment or privacy cases brought that endlessly complicate implementation?

• Will kids just flock off-shore to unregulated sites in an effort to reclaim some of the independence they have lost through by surrendering anonymity on U.S.-based sites? What are the consequences of that? Do parents or American policymakers really have any leverage over shady websites operators in Antigua?

• Aren’t there better ways to use our resources? How about focusing our time, energy and resources on educating kids about online risks and deal with these concerns in more constructive ways?

You get the point: Age verification is complicated. Insanely complicated. And it would have enormous costs and profound ramifications for the future of online speech and privacy. We must never forget that government regulation–no matter how well-intentioned–can often have such unintended consequences. It’s a lesson that the USA Today and many others need to heed before they flippantly suggest that age verification is a piece of cake and it’s just a matter of MySpace or someone else throwing a switch to magically make it happen.

Not. That. Simple.

This morning in New York City, social networking website operator MySpace.com announced a major joint effort with 49 state Attorneys General aimed at better protecting children online. (Coverage at CNet, NYT and Forbes). At a joint press conference, MySpace and the AGs unveiled a “Joint Statement on Key Principles of Social Networking Safety” involving expanded online safety tools, improved education efforts, and law enforcement cooperation. They also agreed to create an industry-wide Internet Safety Technical Task Force to study online safety tools, including a review of online identity authentication technology. Generally speaking, the agreement is step forward for online safety. Indeed, many of the principles in the agreement could form a potential model “code of conduct” that other social networking sites could adopt. In a report I authored for the Progress & Freedom Foundation in August 2006, I argued that it was vital for companies and trade associations to take steps such as this to avoid the specter of government regulation or censorship:

All companies doing business online… must show policymakers and the general public that they are serious about addressing [online safety] concerns. If companies and trade associations do not step up to the plate and meet this challenge soon—and in a collective fashion—calls will only grow louder for increased government regulation of online speech and activities. What is needed is a voluntary code of conduct for companies doing business online. This code of conduct, or set of industry “best practices,” would be based on a straight-forward set of principles and policies that could be universally adopted by [a] wide variety of operators…

In particular, this code of conduct proposal called for companies to make specific pledges regarding improved online safety tools, expanded education / media literacy efforts, and ongoing assistance to law enforcement regarding investigations of online crimes.

The Agreement

MySpace responded to this challenge in impressive fashion with its announcement today. The agreement touched upon all of those elements and included the following “Principles of Social Networking” (as described in a MySpace press release):

• Site Design and Functionality: The Principles incorporate safety initiatives that MySpace has already implemented and initiatives it will work to implement in the coming months. Examples of safety features MySpace has in place include reviewing every image and video uploaded to the site, reviewing the content of Groups, making the profiles of 14 and 15 year old users automatically private and protecting them from being contacted by adults that they don’t already know in the physical world, and deleting registered sex offenders from MySpace. Examples of improvements MySpace will make include defaulting 16 and 17 year old users’ profiles to private and strengthening the technology that enforces the site’s minimum age of 14.

• Education and Tools for Parents, Educators and Children. The Principles acknowledge that MySpace has already been devoting meaningful resources to Internet safety education including a new online safety public service announcement targeted at parents and free parental software that is under development. MySpace will explore the establishment of a children’s email registry that will empower parents to prevent their children from having access to MySpace or any other social networking site. In addition, under the Principles MySpace will increase its communications with consumers who report a complaint about inappropriate content or activity on the site.

• Law Enforcement Cooperation. The Attorneys General view MySpace’s cooperation with law enforcement, which includes a 24-hour hotline, to be a model for the industry. The parties will continue to work together to enhance the ability of law enforcement officials to investigate and prosecute Internet crimes.

• Online Safety Task Force. As part of the Principles, MySpace will organize, with the support of the Attorneys General, an industry-wide Internet Safety Technical Task Force to develop online safety tools, including a review of identity authentication tools. While existing age verification and identity products are not an effective safety tool for social networking sites, the Task Force will explore all new technologies that can help make users more safe and secure including age verification. The Task Force will include Internet businesses, identity authentication experts, non-profit organizations, academics and technology companies.

The agreement then goes on—in the form of two appendices—to detail over 70 specific steps that MySpace will take to expand upon these principles. As part of the agreement, MySpace agreed to:

• Implement “age locking” for existing profiles such that members will be allowed to change their ages only once above or below the 18 year old threshold. Once changed across this threshold, under 18 members will be locked into the age they provided while 18 and older members will be able to make changes to their age as long as they remain above the 18 threshold. MySpace will implement “age locking” for new profiles such that under 18 members will be locked into the age they provide at sign-up while 18 and older members will be able to make changes to their age as long as they remain above the 18 threshold.

• Users able to restrict friend requests to only those who know their email address or last name. “Friend only” group invite mandatory for 14 and 15 year olds. “Friend only” group invite by default for 16 and 17 years olds. Users under 18 can block all users over 18 from contacting them or viewing their profile. Users over 18 will be limited to search in the school section only for high school students graduating in the current or upcoming year. Users over 18 may designate their profiles as private to users under 18, and users under 18 may designate their profiles as private to users over 18.

• Change the default setting for 16-17 year olds’ profiles from “public” to “private” and create a closed high school section for users under 18. The “private” profile of a 16/17 year old will be viewable only by his/her “friends” and other students from that high school who have been vouched for by another such student. Students attending the same high school will be able to “Browse” for each other.

• Obtain a list of adult sites on an ongoing basis and sever all links to those sites from MySpace. They will also demand that adult entertainment industry performers set their profiles to block access to all under 18 users and remove all under 18 users from profiles of identified adult entertainment industry performers.

And that just scratches the surface. There is much more to the agreement. In fact, it is difficult to imagine how MySpace could have gone any further to satisfy the online safety concerns raised by AGs or other public policymakers. Indeed, some MySpace users will likely protest that some of the changes go too far. That’s especially clear after reading some of the other technical details of the proposal included in the two appendices.

E-Mail Registry

For example, in the technical appendix summarizing the design and functionality initiatives that MySpace has agreed to consider, they say they will pursue a new “children’s e-mail registry”:

[MySpace will] engage a third-party to build and host a registry of email addresses for children under 18. Parents would register their children if they did not want them to have access to MySpace or any other social networking site that uses the registry. A child whose information matches the registry would not be able to register for MySpace membership.

That proposal might raise some eyebrows since it is unclear how that registry would work and what, if any, privacy / security concerns it might raise. Of course, other critics will argue that such a system will be easily circumvented or tricked. After all, how does MySpace know that the person submitting an e-mail is child’s real parent? And what about multiple e-mail accounts? It’s fairly easy to get a free e-mail account these days. But, if the system somehow did work as billed, it would raise serious questions about who has access to that e-mail registry and how secure the database was.

The agreement also contains a number of restrictions on access by minors to specific types of content, or to other users or groups on MySpace. Viewed in isolation, those restrictions seem fairly reasonable—especially those dealing with access by minors to adult areas (ex: “swingers” clubs or the “Romance and Relationship Forum and Groups”). Taken together, however, the growing list of site restrictions might be viewed by many young users as an impediment to their social networking activities. Many parents and policymakers will like the sound of that, of course. But where might those users go if they are frustrated by the growing number of restrictions imposed on their online activities? This is indicative of the difficult position MySpace finds itself into today: They are piling on additional restrictions and safeguards in the name of online safety to satisfy the concerns raised by many parents and policymakers. But if these initiatives impose too many encumbrances on social networking activity and interactions it could undermine the very purpose of the site and its value to members.

This explains why MySpace is eager to get other social networking sites to adopt policies similar to those found in the agreement it struck with the AGs. Obviously, MySpace would prefer not be the only website stuck with these burdens. Moreover, it probably does not want other sites to have an unfair competitive advantage in terms of more lax operating restrictions. Of course, even if every domestic social networking site adopted stricter policies along the lines of what MySpace agreed to, there will always be offshore alternatives for youngsters to choose from. This is the tricky balance that complicates all debates about online child safety today: How do we create sensible online policies without encouraging kids to operate completely surreptitiously in a “digital underground,” especially shady offshore environments?

Age Verification

Generally speaking, however, MySpace struck the right balance with most of the other proposals in the agreement with the AGs, especially considering the pressure they were under from some policymakers to go much further. In that regard, the agreement with the AGs is especially notable for what it does not include: age verification mandates. The call for an Internet Safety Technical Task Force to study online safety methods and identity authentication tools is a sensible alternative to the rush to mandate age verification, which some AGs have been advocating vociferously over the past two years.

Hopefully the task force will provide critical examination of the issue and not simply begin with pre-ordained conclusions about the wisdom or effectiveness of online age verification techniques and technologies. At the press conference announcing the agreement, however, Attorneys General Roy Cooper of North Carolina and Richard Blumenthal of Connecticut seemed to imply that that the goal of the task force would be to develop and implement a full-blown age verification system for the Internet. “We are going to find and develop online identity authentication tools,” said AG Cooper. And AG Blumenthal reiterated an argument he made ad nauseum last year when he argued that, “if we can put a man on the moon” then we ought to be able to verify the ages of people when they go online. [I first heard AG Blumenthal make this argument when I debated him and AG Cooper at a NCMEC conference two years ago. Here’s the summary of my response that day.]

But it’s just not that simple. As I argued in a lengthy PFF study last year entitled, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions,” there are no silver bullet age verifications solutions. Online authentication is a complicated, multi-faceted technical issue. And, even assuming we could find a way to make it work, there are many other considerations that must be taken into account, such as the burden it might impose on freedom of speech or individual privacy.

The danger, therefore, is that the AGs have preconceived notions about the wisdom and efficacy of age verification mandates, and that they will either seek to stack the deck on the task force with age verification advocates or pressure the task force to adopt mandatory age verification without thoroughly studying the issue. Again, that would be a serious mistake and it would also likely give rise to legal challenges.

Education & Empowerment

The better approach is to focus on other steps that actually will keep kids safe online. As I have argued in my book on Parental Controls and Online Child Protection: A Survey of Tools and Methods, the best solution to online safety concerns is what I call the “3-E Solution: which stands for “education, empowerment, and enforcement.”

Luckily, there’s a great deal of that included in the MySpace agreement with the AGs. MySpace has pledged to “continue to dedicate meaningful resources to convey information to help parents and educators protect children and help younger users enjoy a safer experience on MySpace.” In particular, MySpace will “engage in public service announcements, develop free parental monitoring software, and explore the establishment of a children’s email registry.”

The importance of education initiatives cannot be overstated. Technical solutions, such as those the AGs clearly favor, will always suffer from inherent limitations and will often be circumvented. Education, by contrast, lasts a lifetime. We need to be teaching our kids how to be good cyber-citizens and how to identify and report legitimate online threats (predators, bullies, scam artists, etc). It is my belief that today’s youth are far more savvy and sensible about these threats than most adults or policymakers give them credit for. Nonetheless, it is important to be vigilant about online safety education and etiquette in an attempt to teach kids—especially more “at-risk” youth who might be susceptible to online threats—basic life lessons about sensible cyberspace behavior and interactions.

Conclusion

Despite the handful of concerns raised above, the MySpace agreement serves as a model for what other social networking companies and online operators could do if they wanted to get more serious about promoting Internet safety. MySpace has done about all it can to be responsive to the demands of parents and policymakers.

Of course, it could be true that no matter how much the company does to improve parental control tools or educate the public, some parents may never take advantage of those tools or information. This remains one of the great mysteries of the parental controls debate: Why is it that so many parents say they want more and better controls and strategies, but when they are made available many of them choose not to use them?

Regardless, if for whatever reason, parents are not taking advantage of these tools and options, their inaction should not be used to justify government regulation as a surrogate for household choice / parental responsibility. Parents have been empowered. It is now their responsibility to take advantage of the tools and controls at their disposal to determine what is acceptable in their homes and in the lives of their children.

MySpace should be applauded for its new statement of principles and its impressive efforts to empower and educate both parents and children about online safety while assisting law enforcement when necessary to root out the real bad guys lurking online.

As Braden mentioned, we were both down in Raleigh, North Carolina this week testifying at a big hearing on mandatory age verification for social networking sites.

It was quite a heated battle. The legislation, SB 132, was supported at the hearing by North Carolina attorney general Roy Cooper, several of his staff attorneys, a couple of NC senate lawmakers, and some folks from Aristotle, a company that claims it has devised a workable age verification solution for social networking purposes. A vote on the proposal was delayed and we’re still awaiting the final outcome.

Down below, I have attached the outline of my remarks in which I argued that age verification mandates would actually make kids less safe online. Here’s why:

1) Age verification is not synonymous with a background check.

• Are citizens being lead to believe that age verification guarantees them perfectly safe online environments? After all, even if the verification process gets the age part of the equation right, it tells us little else about the person being verified.

• Incidentally, what happens when the parent being verified is a predator using their child to create false credentials? Unfortunately, we know that some predators have children.

• This gets to the primary concern in this debate: The very real potential exists that we are creating solutions that inject a false sense of security in parents and children alike.

2) Even assuming we do not encounter problems with the initial sign-up phase and procedures, questions remain about follow-ups and subsequent validations.

• Will parents be asked to fill out and submit paperwork routinely to verify their identity (or their child’s) on an ongoing basis? Will parents be expected to take phone calls from dozens of social networking sites (or call sites themselves) to continue authorization? Will parents tolerate that?

• If the sign-up and subsequent authentication process proves cumbersome and time-consuming, will this encourage kids to search out less trustworthy “underground” or offshore websites?

• How are we going to regulate those offshore sites? Also, could new regulations drive domestic operators offshore?

• In sum, the sheer scale of the Net and online activities greatly complicate the enforcement of age verification schemes, especially those of the parental permission-based variety.

3) Will age verification mandates encourage the rise of an illegal black market in credentials?

• Will kids share or even sell their online credentials, such as their user name and passwords, to others who desire them?

• Certainly kids won’t just stop trying to get onto social networking sites. Are we going to punish kids (or prosecute their parents) for evasion? And, again, will kids look to offshore sites?

4) There are serious privacy issues at stake here, and those issues could give rise to other problems.

• Requiring all parents to be verified before their children can go online will obviously be seen by some parents as intrusive and a potential violation of their privacy.

• If some parents resist such regulations or refuse to submit to such verifications, what will their kids do? Again, it might encourage kids to seek out false credentials of to visit offshore sites.

• Incidentally, who has access to all this new information about parents and children that the government is requiring that social networking operators collect? Do we want online operators creating massive new databases of information about us or our kids if better alternatives exist?

Bottom line: The inherent danger of age verification regulation is that it: • results in unintended consequences or solutions that don’t solve the problems they were intended to address; • creates a false sense of security that might encourage some youngsters (or adults) to let their guard down while online; and • creates potential incentives to push mainstream social networking sites offshore. No matter how bad parents or policy makers think social networking sites are today—and, in reality, the sites are not nearly as bad as they imagine—those sites are infinitely superior to potentially shady offshore websites that are completely unaccountable to U.S. officials. And the domestic sites are more accountable to the general public and are responsive to press scrutiny.

In sum, there are no silver bullet solutions. Instead, we need a multi-prong, layered strategy…

Better approach to online child safety = The “3-E Solution”: Education, Empowerment, and Enforcement

“Education” refers to not only the need for K-12 information literacy efforts but also, more broadly, to the need for comprehensive online safety instruction and awareness-building efforts. Governments at all levels need to take an aggressive role here.

“Empowerment” refers to the importance of providing parents with more and better tools to make informed decisions about media and communications tools in their lives of their children. Government can facilitate these efforts in partnership with industry and non-profit organizations. For example, helping to make parents more aware of Internet monitoring tools and strategies would be one of the most constructive solutions.

“Enforcement” refers to stepped up law enforcement efforts to find and adequately prosecute child predators. It is essential that law enforcement officials receive the resources and training necessary to adequately monitor online networks for predators and to bring them to justice when they are found. For example, law enforcement agencies need sophisticated computer forensic labs and skilled experts to help investigate online crimes. And they need to be trained to conduct proper sting operations to find predators before they harm our children. Finally, much longer prison sentences are needed for child predation.

[For additional information, please see my March study, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions.”]

In late March, I hosted a congressional seminar entitled “Age Verification for Social Networking Sites: Is It Possible? And Desirable?” I brought together 5 experts in the field to debate the issue, including:

• John Cardillo, President & CEO, Sentinel
• Jay Chaudhuri, Special Counsel to North Carolina Attorney General Roy Cooper
• Raye Croghan, Vice President, IDology, Inc.
• Tim Lordan, Executive Director, Internet Education Foundation
• Jeff Schmidt, CEO, Authis

It was an outstanding discussion and I’m happy to report that the transcript is now available online here. Also, you can listen to the audio from the event here. Also, you can find the big study of mine that we discussed that day here.

Jennifer Medina of the New York Times penned an article yesterday on the debate over social networking fears leading to calls for age verification mandates. She noted that measures are moving in several states that would require social networking sites to age-verify users before they are allowed to visit the sites or create profiles there. But Medina also noted that there are many difficult questions about how age verification would work and how “social networking” would even be defined. (I summarize these questions in my recent PFF report, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions.”)

Ms. Medina was also kind enough to interview me for the story and she summarizes some of what I had to say in her piece. In a nutshell, I stressed that the most effective way to deal with this problem is to get serious about dealing with sex offenders instead of trying to regulate law-abiding citizens. We need to be locking up convicted sex offenders for a lot longer in this country to make sure they behind bars instead of behind keyboards seeking to prey on our children.

I also stressed the importance of online safety education as part of the strategy here. But my comments on that didn’t make the cut in the story. But you can read my big recent paper on this issue for additional details.

Lisa Lerer of Forbes was nice enough to do a feature story this week about my views on the panic over social networking and the push for age verification of such sites. Her piece is entitled “Why MySpace is a Safe Space,” and begins as follows: “Adam Thierer doesn’t look like much of a revolutionary. But last month he challenged both Washington and conventional wisdom with a fairly radical proposition: Perhaps MySpace and the Internet aren’t so scary for kids, after all.”

I don’t really regard what I’ve been saying in my recent essays or big new PFF study as “revolutionary.” Rather, if you spend any time studying this issue and these sites in a dispassionate, educated way, I think the conclusions I draw seem quite reasonable. Unfortunately, I don’t think many policy makers or critics have spent any serious time on these sites or seriously explored the relative danger of online social networking sites relative to offline social networking places. A classic “moral panic” has developed because of this: An older generation fears a new medium that it does not use or understand.

Anyway, read my discussion with Lisa for more details.

I’m putting the wraps on a big paper on the dangers of mandating age verification for social networking websites. One of the questions I ask in the study is exactly how broadly “social networking sites” will be defined for purposes of regulation? Will chat rooms, hobbyist sites, listservs, instant messaging, video sharing sites, online marketplaces or online multiplayer gaming sites qualify? If so, how will they be policed and how burdensome will age-verification mandates become for smaller sites? Finally, does the government currently have the resources to engage in such policing activities since almost all websites now have a social networking component? I explore these and other questions in my paper.

But now I have another type of site to add to list, and not one that I originally gave much consideration to: online newspapers. Over the weekend, the USA Today relaunched its website, not only to freshen up its look, but also to fundamentally change the ways the site works. According to the editors, the new features of the site will give readers the ability to:

• Scan other news sources directly on USATODAY.com; • See how readers are reacting to stories; • Recommend stories and comments to other readers; • Comment directly on stories; • Participate in discussion forums; • Write reviews (of movies, music and more); • Contribute photos; • Better communicate with USA Today staff.

Other bloggers were quick to note that the newspaper is essentially trying to refashion itself as a social networking site. Some wonder whether a newspaper can really be a social networking site. Others point out that traditional newspaper readers may resist such changes for a variety of reasons. (Don Dodge points out that 92% of reader responses have been negative so far).

But let’s ignore all that for a moment and get back to the question I posed in the title of my post: If USA Today is billing itself as a social networking site–or if others argue that it represents a social networking site–will the company be required to age-verify users before they visit the site?

Well, that depends on how the age verification regs would get written, of course. But one definition has already been suggested under the proposed “Deleting Online Predators Act” (DOPA), which would ban such sites in publicly funded schools and libraries. Under DOPA, “Commercial Social Networking Websites” are defined as any site that: “(a) allows users to create web pages or profiles that provide information about themselves and are available to other users; and (b) offers a mechanism for communication with other users, such as a forum, chat room, email, or instant messenger.”

Keeping that definition in mind, let’s check out some more material from the USA Today’s “Quick Guide to New Features.” Specifically, look at sections on this page about “personal spaces” and “avatars”:

Personal space: When you become a member, we automatically establish a personal profile page. As you interact with the USA Today community, your comments, recommendations and other contributions are automatically appended to your page. Your profile page includes a place for you to upload photos, write a blog, and the ability to send messages to other users. These pages allow readers to get a better sense of the site’s most active contributors. Avatar: Every one of our pages features a spot just for you: up there in the right-hand corner. That’s where you’ll be notified of messages left by other readers. Make yourself at home. Upload a picture of yourself, a funny icon, or choose from our selection of ready-made avatars.

Sounds a heck of lot like a social networking site to me. And if it was defined as such by lawmakers, it could mean that (under DOPA) access to the USA Today would need to be banned in public schools and libraries and that everyone would need to be age-verified before they go on the new USA Today website in their own homes. Welcome to the world of unitended regulatory consequences!

Additional Reading:

“Social Networking Websites & Child Protection: Toward a Rational Dialogue,” by Adam Thierer, Progress & Freedom Foundation Progress Snapshot 2.17, June 2006.

“Is MySpace the Government’s Space?,” by Adam Thierer, Progress & Freedom Foundation Progress Snapshot 2.16, June 2006.