Porn on Planes: 3 Possible Solutions
In-flight Internet access is finally starting to be rolled out by some carriers, and as they do so the inevitable question of what to do about objectionable material is already being debated. Surprisingly, many airlines have decided to not filter in-flight Internet access but instead rely on “peer pressure and the presence of flight attendants,” according to Tim Maxwell, Vice President of Marketing for Aircell, the company providing American’s broadband service.
But others are wondering if that’ll be enough. I share that concern. I can only imagine how ugly things will get on a flight once somebody starts streaming porn from their aisle seat. Flight attendants are going to become “fight” attendants once that happens. And you better believe that somebody in Congress is already cooking up legislation with some snappy title like “The Family Friendly Flights Act” to impose a regulatory solution. (Oh wait, a bill with that title was already introduced last year!! I wrote about it here. But that bill was just for violent movies, not Net access. So expect another measure soon mandating in-flight Net censorship).
Before things get ugly and bills start flying up on the Hill, the airlines need to think about crafting some constructive solutions to this problem. Here are three possibilities:
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An Unnatural Modern Fascination with Murder and Celebrities?
Having covered free speech and media policy issues for many years now, one of the arguments I hear a lot is that we moderns have an unnatural fascination with murder, mayhem, and violence as well as gossip and celebrities. Social critics and proponents of media content regulation often wax nostalgic about the supposed “good ol’ days” when all we thought and talked about was enlightened and enriching topics.
It’s all complete nonsense. Anyone who has seriously studied our nation’s history — or, for that matter, the history of any country or civilization — knows that we humans have always been fascinated by the morbid and tales of debauchery, especially when those tales involve public officials or celebrities.
I was reminded of this again today when reading two articles in the Washington Post.
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What the Media Reformistas Really Want
Over at Reason’s “Hit and Run” blog, Matt Welch has penned a piece pointing out how it is impossible to make the anti-media activists happy. Welch notes that radical activist groups like Free Press go around demonizing media moguls like Rupert Murdoch because he supposedly symbolizes the fact that will live in an age of media monopolists who puppeteer all our news and entertainment from on high. It’s all 100% B.S., of course, as we have shown here again and again.
But even when confronted by the rise of alternative owners and ownership models, the Free Press fanatics show their true colors by saying that won’t work for them either. Walsh notes, for example, that the skake-up of the old Tribune empire and the emergence of Sam Zell as an independent owner of the Trib — and an owner hellbent on downsizing the old empire, no less — should be exactly what Free Press wants:
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CDT-PFF Supreme Court Brief in FCC v. Fox Case
Along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology, I have just submitted an amicus brief to the Supreme Court in the potentially historic free speech case FCC v. Fox, which will be heard in November.
[Reminder: The FCC v. Fox case is the indecency case involving the FCC’s new policy for "fleeting expletives." I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. By contrast, the so-called "Janet Jackson case" -- CBS v. FCC -- took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit's decision here.]
The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Of course, it could be that the Supreme Court simply sticks to the procedural questions regarding whether the FCC moved too far, too fast in reversing it’s long-standing policy of restraint regarding “fleeting expletives.” That’s essentially what the Second Circuit did. On the other hand, the Supremes might reach the substantive First Amendment issues tied up in the Pacifica case. We just won’t know for sure until the case is handed down.
Regardless, in the joint CDT-PFF amicus brief filed today, we argue that the FCC has both gone too far procedurally and that “the time is rapidly approaching for this Court to find that broadcast, like the Internet and other means of mass communication, ‘is entitled to the highest protection from government intrusion’ and that there is no longer a factual ‘basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.’” Citing Reno v. ACLU, 521 U.S. at 863, 870.”
A more detailed summary of our argument follows below.
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NPR spot on Third Circuit decision in Janet Jackson case
I was on NPR’s “On the Media” program this weekend discussing the recent Third Circuit Court of Appeals decision striking down the FCC’s fines in the “Janet Jackson case.” As I noted in this lengthy analysis of the decision, the court said that the agency’s recent efforts to expand the parameters of “indecency” enforcement for broadcast programming went too far, too fast. “[T]he FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy,” the Court held.
“On the Media” host Bob Garfield interviewed me for 5 minutes about the decision and its ramifications. The show can be heard here or you can just read the transcript there. Or you can just listen to it by clicking the button below…
Australian ISP-Level Content Filtering Report Released
The Australian government has been running a trial of ISP-level filtering products to determine whether network-based filtering could be implemented by the government to censor certain forms of online content without a major degradation of overall network performance. The government’s report on the issue was released today: Closed-Environment Testing of ISP-Level Internet Content Filtering. It was produced by the Australian Communications & Media Authority (ACMA), which is the rough equivalent of the Federal Communications Commission here in the U.S., but with somewhat broader authority.
The Australian government has been investigating Internet filtering techniques for many years now and even gone so far to offered subsidized, government-approved PC-based filters through the Protecting Australian Families Online program. That experiment did not end well, however, as a 16-year old Australian youth cracked the filter within a half hour of its release. The Australian government next turned its attention to ISP-level filtering as a possible solution and began a test of 6 different network-based filters in Tasmania.
What makes ISP-level (network-based) filtering an attractive approach for many policymakers is that, at least in theory, it could solve the problem the Australian government faced with PC-based (client-side) filters: ISP-level filters are more difficult, if not impossible, to circumvent. That is, if you can somehow filter content and communications at the source–or within the network–then you have a much greater probability of stopping that content from getting through. Here’s a chart from the ACMA’s new report that illustrates what they see as the advantage of ISP-level filters:
COPA Falls Again; Is Historic 3rd Trip to Supremes Coming?
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.
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The NY AG’s Anti-Free-Speech Shakedown Racket
Here’s a good article by Declan McCullagh on New York Attorney General Andrew Cuomo’s outrageous vendetta against Usenet. The article is good not only because yours truly is quoted.
I’ve been looking, and haven’t found a single advocate from the left or critic of Comcast’s network management practices that has said a word of support for Comcast on this subject. This is where Internet freedom is really in peril - and nothing?
“Scientific” Media Ratings & Labels: What Exactly Does That Mean?
A few days ago I posted an open letter to New York Gov. David Patterson about a measure that recently passed through the New York legislature and was awaiting his signature. The bill proposes a new regulatory regime for video games that would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry. Unfortunately—but quite unsurprisingly—Gov. Patterson signed the bill last night. And so I am certain that another legal battle will ensue regarding the constitutionality of the measure, and it will likely be struck down like every other measure on this front because it violates the First Amendment. Regardless, let’s talk a little more about what animates this specific legislative effort, because I think it is very important and foreshadows the heated debate to come over video games and all media in coming years.
The New York measure is notable in that, unlike most of the other state or local measures that had been stuck down in recent years that proposed penalties for the sale of games to youngsters which were labeled by the ESRB to be intended for an older audience, it simply proposed more “oversight” of the ratings process and parental control technologies by the state. Specifically, it mandated that all games be rated and that all consoles contain screening controls. The response to that proposal has generally been: “So what?” After all, all video games are rated already and all game consoles contain parental controls. The measure also mandated a 16-member oversight board to monitor the industry and this process. Again, that proposal was not regarded by many as a serious threat to the video games or free speech.
But I fear that many are missing the big picture here. The New York bill is actually far more important that many people suspect because of what it foreshadows: A day when politicians will claim that we can make rating systems more “scientific” by putting public health bureaucrats or university social scientists in charge of them. Indeed, last night on Bloomberg TV, this became the focus of a debate between me and Dr. Michael Rich, Director of the Center for Media and Child Health at the Harvard Medical School. After you watch the clip, I’ll have much more to say about this issue down below the fold.
3rd Circuit ruling against FCC in Janet Jackson case
The Federal Communications Commission (FCC) lost another major First Amendment-related case today involving its recent efforts to expand the parameters of “indecency” enforcement for broadcast programming. The case involves the now infamous “wardrobe malfunction” that occurred during an unscripted 2004 Super Bowl halftime performance involving singers Justin Timberlake and Janet Jackson. When Ms. Jackson’s breast was exposed on camera for nine-sixteenths of one second, the FCC immediately launched an investigation into the incident and fines were eventually levied on the grounds that the fleeting exposure of Ms. Jackson’s breast was a violation of broadcast decency standards. CBS challenged the FCC’s decision, leading to a legal showdown in the U.S. Court of Appeals for the Third Circuit.
In today’s decision, CBS Corp. v. FCC, the three-judge panel of the 3rd Circuit ruled that the Federal Communications Commission “acted arbitrarily and capriciously” when it imposed a $550,000 fine on CBS for the incident. The court’s 102-page decision, which can be found here, was decided squarely on procedural grounds. That is, it didn’t touch the more substantive speech-related issues or precedents such as the Pacifica or Red Lion decisions that constitute the foundations of all modern FCC broadcast regulation.
The case is important because it now joins the June 2007 decision handed down by the Second Circuit Court of Appeals in the case of Fox Television Stations v. FCC. That was the indecency case involving the FCC’s new policy for “fleeting expletives.” In that 2-1 decision, the Second Circuit ruled that “the FCC’s new policy sanctioning ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act for failing to articulate a reasoned basis for its change in policy.” As a result, the FCC’s order was vacated and remanded to the agency. [And the FCC is now challenging the decision in the Supreme Court.]
This is very similar to what the 3rd Circuit said today in the CBS case.
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Dear Gov. Patterson… Regarding that Video Game Bill You Are About to Sign
To: Hon. David Patterson, Governor, State of New York
From: Adam Thierer, life-long gamer and Senior Fellow at the Progress & Freedom Foundation
Date: July 17, 2008
Re: That video game bill (A. 11717/ S. 6401) you have been asked to sign
_______________________________
Dear Gov. Patterson:
I write today to ask a few questions about a measure that is currently sitting on your desk awaiting your signature. The measure (A. 11717/ S. 6401), which recently passed through the New York legislature, proposes a new regulatory regime for video games. It would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry.
As a life-long gamer—and now the parent of two young gamers—this is a subject I care deeply about. I also come at this topic from an academic perspective as someone who analyzes the intersection of child safety concerns and free speech issues surrounding various types of media and communications technologies. I am the author of a frequently-updated book, Parental Controls & Online Child Safety: A Survey of Tools & Methods, which provides a comprehensive look at the many tools and methods on the market today that can help parents deal with concerns about objectionable media content.
But mostly I write you today from the perspective of someone who just enjoys games. Actually, let me clarify that: I am utterly infatuated with video games. Gaming has been a life-long passion of mine and something I have enjoyed with friends and family since I owned my very first PONG and Atari 2600 systems in the 1970s. Since then, I have owned virtually every major video game console sold in the United States. Even today, as I approach 40 years of age, I find myself sitting down many nights to enjoy games with my son and daughter on the Xbox 360 and Sony PS3 consoles that we have in our home.
Like millions of other Americans, gaming is now fully integrated into the fabric of my life and the lives of my children. It has become one of the most enjoyable media experiences for my generation and the generation of kids that we are raising. And, although I am certain that the New York legislature had the best of intentions in mind when passing this bill, I believe I speak for a great number of those other American gamers when I say that the measure on your desk is somewhat of an insult to our intelligence. Let me explain by raising a few questions about this bill, which I will argue is unnecessary, unworkable, and unconstitutional:
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Technopanics and the Great Social Networking Scare
Sean Garrett of the 463 Blog posted an excellent essay this week about the great moral panic of 1995, when Time magazine ran its famous cover “Cyberporn” story that included this unforgettable image. Unfortunately for Time, the article also included a great deal of erroneous information about online pornography that was pulled from a bogus study that found 83.5 percent of all online images were pornographic! The study was immediately debunked by scholars, but not before Congress rushed to judgment and passed the Communications Decency Act, which sought to ban all “indecent” online content. It was later struck down as unconstitutional, of course.
Anyway, Sean’s essay also brought to my attention this amazing new article by Alice Marwick, a PhD Candidate in the Department of Media, Culture, and Communication at New York University: “To Catch a Predator? The MySpace Moral Panic“. The topic of “moral panics” is something I have done quite a bit of work on, but Marwick’s paper is absolute must-reading on the topic, especially as it pertains to the recent moral panic of MySpace and social networking sites.
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Liberals Abandoning the First Amendment, Part 3: The Fox Case
Early in 2007, I started penning—but somehow failed to continue—a series of essays about how I was troubled that so many Democrats and liberal intellectuals appeared to be abandoning their First Amendment heritage. As I pointed out at the time:
The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.
But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.
This seems like a good time for me to pick this theme back up because later this fall, the Supreme Court is set to consider FCC v. Fox Television Stations, which could become the most important First Amendment-related court case since FCC v. Pacifica Foundation, which just turned 30 years old last week.
Amicus briefs are starting to be filed in the matter, and you won’t be surprised to hear that several social conservative, pro-regulatory activist groups have already petitioned the Court to uphold the FCC’s authority to censor broadcast television and radio content. What is surprising, however, is the lack of liberal groups or Left-learning intellectuals engaging in the matter. One would hope that at least a few lefties would file in opposition to over-zealous FCC regulation of speech. Sadly, however, to the extent any liberals have filed so far, it has largely been in an effort to undercut the argument broadcasters are putting forward in defense of their First Amendment rights, or to encourage the Court not to touch other regulatory sacred cows of the political Left—namely the Supreme Court’s 1969 Red Lion decision and FCC’s ambiguous “public interest” authority to comprehensively regulate media markets.
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Pacifica Anniversary Week, Part 5 (CDT-PFF joint editorial)
[Note: This is the fifth in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which turns 30 this week. Here are parts 1, 2, 3, and 4. This installment is a joint editorial I released today with my friend John Morris, general counsel for the Center for Democracy & Technology].
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Pacifica Anniversary Week, Part 4 (Pervasiveness is Moot)
[Note: This is the fourth in a series of essays about the legacy of the Supreme Court's FCC v. Pacifica Foundation decision, which celebrates its 30th anniversary on July 3rd. Part 1, presented a general overview of the issue. Part 2 sketched a short history of FCC indecency regulation. Part 3 discussed the misguided logic of the Court's reasoning in Pacifica as it stood in 1978. This installment will examine why that logic is even more misguided in light of modern developments.]
Whatever legitimacy Pacifica’s “pervasiveness rationale” might have once had, it has been largely eroded by modern media developments.
First, the pervasiveness rationale for media regulation fails today because new content tailoring technologies make it easier than ever before for parents to manage media in their homes and in their lives of their children. It is impossible to consider video programming an “intruder” in the home when tools exist that can help parents almost perfectly tailor viewing experiences to individual household preferences.
When Justice Stevens argued in Pacifica that broadcast signals represented an “intruder” in the home, he supported that claim by noting that: “Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.” While that may have reflected the state of technology and TV viewing at the time, it is completely at odds with modern realities. In 1978, the viewing experience was a more passive affair and consumers had very few ways to control that experience unless they turned off the television altogether. Today, by contrast, viewers (including parents) have the tools to “tune in and out” at will, and they have abundant “prior warnings” about program content thanks to the existence of ratings, program information, and electronic program guides. These tools help parents restrict or tailor the viewing experience in advance according to their values and preferences.
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