The big news out of Europe today is that the European Court of Justice (ECJ) has invalidated the 15-year old EU-US safe harbor agreement, which facilitated data transfers between the EU and US. American tech companies have relied on the safe harbor to do business in the European Union, which has more onerous data handling regulations than the US. [PDF summary of decision here.] Below I offer some quick thoughts about the decision and some of its potential unintended consequences.

#1) Another blow to new entry / competition in the EU: While some pundits are claiming this is a huge blow to big US tech firms, in reality, the irony of the ruling is that it will bolster the market power of the biggest US tech firms, because they are the only ones that will be able to afford the formidable compliance costs associated with the resulting regulatory regime. In fact, with each EU privacy decision, Google, Facebook, and other big US tech firms just get more dominant. Small firms just can’t comply with the EU’s expanding regulatory thicket. “It will involve lots of contracts between lots of parties and it’s going to be a bit of a nightmare administratively,” said Nicola Fulford, head of data protection at the UK law firm Kemp Little when commenting on the ruling to the BBC. “It’s not that we’re going to be negotiating them individually, as the legal terms are mostly fixed, but it does mean a lot more paperwork and they have legal implications.” And by driving up regulatory compliance costs and causing constant delays in how online business is conducted, the ruling will (again, on top of all the others) greatly limits entry and innovation by new, smaller players in the digital world. In essence, EU data regulations have already wiped out much of the digital competition in Europe and now this ruling finishes off any global new entrants who might have hoped of breaking in and offering competitive alternatives. These are the sorts of stories never told in antitrust circles: costly government rulings often solidify and extend the market dominance of existing companies. Dynamic effects matter. That is certainly going to be the case here.

#2) Cross-border digital trade suffers: This conclusion follows from point #1, of course. Writing just before the decision was announced, lawyers as Norton Rose Fulbright’s Data Compliance Report blog noted that if the safe harbor was invalidated, “the impact on the world economy would be immense.” Well, here we are.  Dan Castro of ITIF hopes that EU and US officials can pull back from the brink of this impending disaster and “finish the process of creating a Safe Harbor 2.0 with terms that give comfort to all parties.” I suspect that many tech companies are hoping for the same miracle to occur. But don’t hold your breath. The Europeans have decided that this is the hill that they will die on. They haven’t shown too much interest in preserving an innovative tech market or enhancing global digital trade flows in the past due to heightened concerns about privacy, and there’s no reason to think they will back down now with a more measured approach. Importantly, as I noted in my earlier essay, “How Attitudes about Risk & Failure Affect Innovation on Either Side of the Atlantic,” this trans-Atlantic clash of vision transcends the debate over privacy law. It’s about broader cultural and political attitudes toward risk-taking and disruption. Most leaders in Europe value stability–both economic and cultural stability–more than US officials and citizens. This tension was always bound to reach a breaking point and the Digital Economy and data handling policies is where the you-know-what is finally hitting the fan.

#3) Web Balkanization accelerates: This is just another blow to the idea of a seamless global Internet. But as tech lawyer Tiffany C. Li pointed out on Twitter this morning in response to the decision, while Web pundits decry balkanization in other contexts, many of them seem to be cheering it on in this case because this decision deals with privacy and data regulation, which they favor more regulation of. But you can’t have your cake and eat it to. Indeed, the great irony of so many “Internet freedom” debates today is that pundits absolutely hate the idea of Internet control and Web balkanization… right up until the point where they absolutely love it! Think of this as the tech policy world’s selective morality problem. (I elaborated on these themes in my essays “When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed,” and “Copyright, Privacy, Property Rights & Information Control: Common Themes, Common Challenges.”)

Interesting that the same ppl who decried Russia’s data localization law now cheer EU upping extraterritorial data regulation. #SafeHarbor

— Tiffany C. Li (@tiffanycli) October 6, 2015

@AnupamChander @AdamThierer Yes, #Schrems opens up possibility that companies will now have to comply w/28 different DPAs applying 95/46/EC. — Tiffany C. Li (@tiffanycli) October 6, 2015

This is the beginning of the Balkanization of the Internet: http://t.co/mbFxxhN7tQ

— Dino A. Dai Zovi (@dinodaizovi) October 6, 2015

Another step toward the jurisdictional balkanization of the Internet https://t.co/83FIYvU2Sm — Milton Mueller (@miltonmueller) October 6, 2015

#4) But the big dogs won’t bolt out of Europe: But this should also be another reminder that there are no “John Galt moments” in the world of tech, as some tech libertarians hope. The biggest players won’t pack their bags and head home because there’s still too much money sitting on the table in Europe. Big firms will instead scramble to comply, just as they are trying to do with the so-called Right to Be Forgotten ruling. Of course, this just exacerbates problem #1 already discussed above: The big dogs stay and do their best to comply with the costly regulatory regime while smaller players get crushed by the rules and all the other potential new entrants just stay home.

#5) The decision ignores the real problem: widespread government surveillance: I don’t often find myself agreeing with Cory Doctorow on much, but he gets it exactly right when he notes that, “this doesn’t mean that Europeans won’t be subjected to mass surveillance, including mass surveillance by the NSA.” He elaborates:

If the European Court of Justice wants to end mass surveillance of Europeans, it can only do so by banning mass surveillance — by ruling that laws that treat foreigners’ data as fair game are unconstitutional. If US tech giants want to get loose from a farcical, expensive, and pointless exercise that continues to treat them as adjuncts to the world’s spy agencies, they need to lobby the US government to change the laws under which it treats foreigners as fair game.

Thus, it would certainly be nice if, as CDT suggested in response to the ruling, that the “EU Safe Harbour Ruling Should Reinvigorate Surveillance Reform Efforts.” Of course, that requires that tech companies muster the courage to stand up to public officials here in the States who always want them to (literally) hand over the keys to the kingdom. That’s why the current debate over crypto backdoors is so essential. It’s good to see a number of tech companies pushing back on that front and refusing to get rolled by law enforcement and national security agencies the way that far too many telecom and tech companies have been in the past. Following today’s ECJ ruling, tech companies are realizing just how serious this problem really is because now European officials are striking out against the safe harbor agreement as a surrogate for their general frustrations with US surveillance more generally. Indeed, in a press release following today’s ECJ ruling, the Internet Association, which represents major US tech firms, noted that, “The Internet industry has consistently supported surveillance reform” and the Association pushed for swift congressional action to clarify and limit existing surveillance powers. It remains to be seen whether the US tech sector and other related industries will be able to push back effectively against the growing surveillance state leviathan, but it’s more clear today than ever before why that’s a fight worth having.

[UPDATE 4/30/13: This article was subsequently published in Volume 65, Issues 2 of the Federal Communications Law Journal in April 2013. The links below now point to the final FCLJ version.]

The Mercatus Center at George Mason University has just released a new paper by Brent Skorup and me entitled, “Uncreative Destruction: The War on Vertical Integration in the Information Economy.”  Brent, who is the research director for the Information Economy Project at the George Mason University School of Law, and I have been working on this paper since the Spring and we are looking forward to getting it published in a law review shortly. The paper focuses on Tim Wu’s “separations principle” for the digital economy, something I’ve spent some time critiquing here in the past. Here’s the introduction from the 44-page paper that Brent and I just released:

Are information sectors sufficiently different from other sectors of the economy such that more stringent antitrust standards should be applied to them preemptively? Columbia Law School professor Tim Wu responds in the affirmative in his book The Master Switch: The Rise and Fall of Information Empires. Having successfully pushed net-neutrality regulation into the policy spotlight, Wu has turned his attention to what he regards as excessive market concentration and threats to free speech throughout the entire information economy.To support his call for increased antitrust intervention, Wu explains his view of competition in the information economy—a view that deviates substantially from current mainstream antitrust theory. First, Wu contends that “information monopolies” are pervasive in the information economy. Wu’s “monopolists” include Facebook, Apple, Google, and even Twitter. In The Master Switch and essays like “In the Grip of the New Monopolists,” Wu argues that these so-called monopolies are increasing their market power and require more aggressive oversight and regulation.Second, Wu argues that traditional antitrust analysis is not sufficient for information systems because they carry speech. He claims, “Information industries… can never be properly understood as ‘normal’ industries,”and traditional forms of regulation, including antitrust enforcement, “are clearly inadequate for the regulation of information industries.”Wu believes that because information industries “traffic in forms of individual expression” and are “fundamental to democracy,” they should be subject to greater regulatory treatment.Third, in contrast to current competition law’s focus on horizontal relationships, Wu desires a reinvigorated regulatory enforcement that addresses “the corrupting effects of vertically integrated power” in the information sectors.He is particularly concerned about private threats to free speech arising from such vertical integration.The solution, he says, is preventing vertical mergers in the information economy and the mandatory divestiture of vertically integrated companies. To implement this, Wu proposes a Separations Principle for the information economy, which would segregate information providers into three buckets, which we have labeled information creators, information distributors, and hardware makers.This article outlines Wu’s separations proposal, explains why his fears regarding vertical relationships should be rejected by regulatory and antitrust policymakers, and illustrates the legal and practical problems his Separations Principle poses. Wu justifies his Separations Principle by citing monopolies and market power in the information economy. He also advocates using U.S. antitrust authorities to enforce his Principle. We argue that the antitrust harms he fears are not present, and we highlight scholarship on the accepted benefits of vertically integrated firms. We show that Wu’s remedies are policy preferences wrapped in the language of competition law. In fact, the information economy is largely competitive and does not warrant interventionist regulatory enforcement. Since much of American economic vitality flows from the information economy and technology, policymakers should reject a radical antitrust remedy like Wu’s preemptive Separations Principle.

The paper can be downloaded from the Mercatus website, SSRN, or Scribd.

Over the weekend, the always-terrific Lenore Skenazy published a provocative editorial in Forbes entitled, “Shred Your Sex Offender Map.”  (For more on Skenazy, see my review of her amazing book Free-Range Kids here last year). In her Forbes essay, Skenazy argues that, as currently constructed, America’s sex offender registries “are making our kids LESS safe.”  How can that possibly be?  I explained why in a lengthy essay on this topic I penned last summer entitled, “ Rethinking ‘Sex Crimes’ and Sex Offender Registries.” In it, I made an argument similar to Lenore’s. In a nutshell, if we really want to keep kids safe from real sex offenders, we need to completely rethink the way we define and punish sex offenses in this country because a significant percentage of the people listed on sex offender registries pose almost no threat to children, making it difficult for us to know who really does pose a threat to our kids and what we should do about them.

Consider two groups of people. Let’s call Group #1 the “petty sex crime crowd.” This would include anyone convicted of  indecent exposure (streaking / public nudity / public urination); a 19-year-old teen who gets caught having sex with a 17-year-old girlfriend; two gay men who had consensual sex in a state where sodomy was previously illegal; etc, etc.  The crucial distinction for this group is that their actions were consensual and non-violent. No serious harm came from their actions, even if some of these activities are less than socially desirable.  Now, let’s talk about Group #2: violent rapists, child molesters, child pornographers, and other creeps who sexually abused people (or even animals!) These people are the wretched scum of the Earth.

Anyway, here’s the first problem with the current sex offender registries: Group 1 and Group 2 are all mixed together! There’s a word for this: Insanity.  How in the hell did it ever come to pass that non-violent, consensual sex “offenders” got stuck on the same list as sadists, pedophiles, rapists, and other violent, evil scum?  Honestly, I don’t know and I don’t care. I just want that nonsense to end and end right now because as I noted in my earlier essay and Lenore argues in her’s, this means current sex offender lists / maps are largely worthless to parents like me unless I take the time to drill down into the details of who was guilty of what.  (Even when you do, it can still be confusing since some crimes aren’t made clear).  But the public is basically being subjected to a panic attack when they hear sex offender registry numbers or see maps of sex offenders in their neighborhood because the overall number of “offenders on the lists,” or dots on the offender maps, is being artificially raised by the presence of Group 1 “offenders.”

There’s a much more serious problem with co-mingling or petty and serious sex offenders on the same lists, however: It is destroying the reputations of the petty offenders who get shackled with a life-long stigma of being on the same list next to those serial rapists, child abusers, or kiddie porn freak.  As a result, those people can’t get certain jobs or have certain relationships because the presence of their name on a sex offender list forever haunts them.  That’s both insane and sad.

Another problem: Mixing Group 1 and Group 2 on the same lists creates on strains law enforcement resources. As Skenazy noted in her essay, “maybe one of the reasons Jaycee Duggard was allegedly imprisoned for 18 years by a known sex offender was that an overburdened police force couldn’t concentrate on creepy Phillip Garrido and the hut behind his house. They were too busy with the 100,000 other Californians on the registry.” I have to imagine that most law enforcement officers would rather spend their time and energy focused on the scum of the Earth instead of streakers or teenage lovers.

Finally, perhaps the most offensive thing about the current sex offender lists is this: Why in the hell do we even need a list for the wretched scum of the Earth who are guilty of serious sex crimes! Why are these scumbags not in jail cell rotting away? I mean, seriously, what the hell is wrong with our government in this country?  How is it that, according to the Department of Justice Bureau of Justice Statistic, only 6 in 10 child sex crime suspects were prosecuted in 2006 and the median prison sentence imposed was just 5 years and 3 months? (See: Federal Prosecution of Child Sex Exploitation Offenders, 2006, (by Tracey Kyckelhahn, Mark Motivans, Ph.D., December 1, 2007, NCJ 219412). If you are a parent reading that number I hope you are as horrified as I am. It makes my angry.  And those are just the child sex crimes. I don’t know where rape sentences currently stand — if anyone has recent data sets, please bring them to my attention — but I know that victim’s groups have long complained of lax penalties for sexual assault against women.

Not to put too fine a point on it but we are talking about here are acts of violent aggression or exploitation against women and helpless children.  Besides murder, are there any crimes worse than that? I can’t name any.  Why, then, are we letting those offenders get off so lightly.  Perhaps if we weren’t putting so many people in jail for petty drug “crimes” we might have more room to house these people.  But, hey, that’s another rant for another day! (No, seriously, look at those charts below, which show drug prosecutions and penalties outpacing sexual exploitation. Again, insane. At least the penalties for sexual exploitation are finally catching up with drug sentences in recent years.)

Anyway, if we are going to let such human filth walk the streets, than we absolutely do need a solid sex offender registry to keep track of them. They should not be at liberty to move about freely. But the only way for those registries to be useful is if we either (1) get the Group 1 petty sex offenders off the list entirely or (2) create a new “Scum of the Earth List” just for the Group 2 people. Skenazy was kind enough to cite my “Scum of the Earth List” proposal in her Forbes piece and noted that it would help save time, money and potentially even lives.

Or, here’s a cheaper and potentially equally effective alternative: We could use a hot iron and brand their foreheads “Inglorious Bastards”-style with a scarlet letter (“S” for Scum) so that we know who they are and can see them coming.   But I’m willing to compromise: Just lock ’em longer and then I will put away my hot branding iron!

OK, end of rant. I need to get back to the important business of protecting my kids from the streaker down the street and the guy who got caught peeing behind McDonald’s who are on the sex offender list in my area.  Thank God my government is helping to protect my kids from those people. Perhaps one day our elected leaders will get down to business and start cracking down on the real sex criminals so parents like me can rest easier.  Because today’s stupid sex offender registries bring me no solace whatsoever.

[Again, please read my earlier essay on “ Rethinking ‘Sex Crimes’ and Sex Offender Registries” for more details.]

Just caught this LA Times editorial from a couple of days ago on the “Overreaction to Online Harassment.” The piece makes many of the same points that Berin Szoka and I stress in our PFF paper on “Cyberbullying Legislation: Why Education is Preferable to Regulation.” [Also, here’s a video of a debate on these issues that I took part in up on Cap Hill this summer.]

The Times editorial notes that, “Because of a past tragedy, lawmakers and prosecutors are becoming overzealous in combating noxious behavior on the Web.” Specifically, they are referring to the tragic case of Megan Meier, the teen who committed suicide after being harassed on MySpace. “Members of Congress often try to expand the powers of federal prosecutors and courts when state law doesn’t produce the results they seek, especially when confronted with cases as heart-wrenching as Meier’s,” the Times noted. For example, in may 2008, Rep. Linda Sánchez (D-CA) introduced H.R. 1966 (originally H.R. 6123), the “Megan Meier Cyberbullying Prevention Act,” which would create a new federal felony to deal with this concern.

But creating a federal crime for something that is mostly peer-on-peer activity seems like overkill. Moreover, the Times notes, “the bill is so vaguely written” that it “would have a hard time withstanding a 1st Amendment challenge if it ever became law.”  As you’ll see in our paper, Berin and I agree, but we also point out that cyberbullying is a very serious matter since evidence suggests the cyberbullying is on the rise and that it can have profoundly damaging consequences for children.

The Times would have been on stronger ground had they pointed out that fact as well the presence of a solid alternative to the Sánchez bill: Education and awareness-building efforts. In mid-May, the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047) 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 will be administered by the Department of Justice, in concurrence with the Department of Education, and the Department of Health & Human Services.  That’s the more sensible — and constitutional — way to address cyberbullying concerns should federal lawmakers feel the need to act.

Finally, as the Times concludes in its editorial, “harassment is amply addressed by state criminal and civil laws.” Existing state statutes can be extended to cover the most problematic forms of online harassment, especially those that involved adult-on-child contact. We don’t need to make a federal matter, or crime, out of this.

The Economist magazine has just released an important feature article entitled, “Sex Laws: Unjust and Ineffective.” In an indirect way, the article makes a point that I have been trying to get across in my work on this issue: If you want to keep your kids safe from real sex offenders, we need to scrap our current sex offender registries and completely rethink the way we define and punish sex offenses in this country.  That’s because, currently, a significant percentage of those people listed in sex offender registries pose almost no threat to children, making it difficult for us to know who really does pose a threat to our kids and what we should do about them.

Simply stated, we’ve dumbed-down the notion of “sex crimes” in this country. As a nation, we have foolishly come to equate almost all sex offenses equally.  While sex offender registry laws vary from state to state, many basically say that that two teens caught engaging in consensual oral sex in high school belong on the same list alongside child rapists. That is insanity. And it leaves many in the public, especially parents, thinking that the whole world is full of predators lurking on every corner just waiting to snatch, rape, and kill their children. [ For the actual facts, see the appendix I have included down below: “Is America Suffering from a National Child Abduction Epidemic”?]  In reality, as The Economist feature story points out, the truth is quite different:

Every American state keeps a register of sex offenders. California has had one since 1947, but most states started theirs in the 1990s. Many people assume that anyone listed on a sex-offender registry must be a rapist or a child molester. But most states spread the net much more widely. A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager. And 32 states registered flashers and streakers. Because so many offences require registration, the number of registered sex offenders in America has exploded. As of December last year, there were 674,000 of them, according to the National Centre for Missing and Exploited Children. If they were all crammed into a single state, it would be more populous than Wyoming, Vermont or North Dakota. As a share of its population, America registers more than four times as many people as Britain, which is unusually harsh on sex offenders. America’s registers keep swelling, not least because in 17 states, registration is for life.

Georgia has more than 17,000 registered sex offenders. Some are highly dangerous. But many are not. And it is fiendishly hard for anyone browsing the registry to tell the one from the other. The Georgia Sex Offender Registration Review Board, an official body, assessed a sample of offenders on the registry last year and concluded that 65% of them posed little threat. Another 30% were potentially threatening, and 5% were clearly dangerous. The board recommended that the first group be allowed to live and work wherever they liked. The second group could reasonably be barred from living or working in certain places, said the board, and the third group should be subject to tight restrictions and a lifetime of monitoring. A very small number “just over 100” are classified as “predators”, which means they have a compulsion to commit sex offences. When not in jail, predators must wear ankle bracelets that track where they are.

Let’s repeat a few key numbers here: 674,000 registered offenders, “more populous than Wyoming, Vermont or North Dakota.”  Those are the kind of numbers that send sensationalistic media outlets and average parents alike into a tizzy. Rarely does anyone stop to ask what those numbers mean or who these people are on the sex offender registries. But, as The Economist notes, when you dig below the surface and start taking a serious look at who these people are and what they have done to land on the list, a very different story emerges. We’re polluting these lists with petty offenders (flashers and streakers) and people who should have been dealt with in different ways (like teens who were caught in the act).

What about the real bad guys?  As the Georgia Review Board found, only 5% of those on their sex offender registry were “clearly dangerous” and “should be subject to tight restrictions and a lifetime of monitoring.”  These would be your true scum of the Earth; the sick fiends who really have preyed on children or raped repeatedly.  Here’s a question I want answered about these scum: Why do we need a sex offender registry for them at all? Why are they not behind bars for life?  Why don’t we cut off their privates!  I am deadly serious here.  If anyone raped one of my children, I would go after him and snip his manhood myself… slowly… with a dull, rusty blade.  Any yet we release these people to re-offend. And then we put them on a list. A list that had teens on it who made a stupid mistake in high school in the back of car and got caught. DOES THIS MAKE ANY DAMN SENSE???  (And yes, I am shouting when I use all caps!  Because I am sick and tired of this nonsense.)

Here is the sobering fact to consider: a 2003 Department of Justice study reported that the average sentence for child molesters was approximately seven years and, on average, they were released after serving just three of those seven years. That is an extremely troubling statistic. If you have young children in your home, it is even more upsetting. When our government is putting people who viciously hurt innocent children behind bars for just seven years and then letting them out after only three, then our government has failed us at a very fundamental level.

Worse yet, policymakers then point fingers at everyone else and scold Internet companies and ISPs for not doing enough to protect children from predators, all the while conveniently ignoring the government’s own failed policies that allow those predators to be on the streets and behind keyboards in the first place!  It is not “market failure” at work when child predators are lurking online; it is government failure in the extreme. We are never going to solve this problem until we hunt down the real bad guys and lock them up for a long, long time.

In the meantime, however, as Lenore Skenazy argues, parents might want to just “burn your sex offender maps” because they instill a sense of dread and panic in us about the world around us based simply on the large number of people on them — even though they tell you little about who is an actual threat to your child.  I have parents in my neighborhood who tell me they won’t let their kids ride their bike down the sidewalks in our very safe and fairly affluent neighborhood in McLean, Virgina because they have heard there are sex offenders in the area. I ask them if they have ever examined those “offenders” to see what they are on the list for.  They haven’t bothered.  I have.  Not one of the sex offenders in my area had anything to with sex crimes against children.  Strangely, most of the sex offenders in my area are listed as just  being convicted of “sodomy.”  I always wonder, was that consensual sodomy that occurred when it was still a crime in Virginia? (That is, before the Supreme Court struck down such laws in the 2003 case of Lawrence v. Texas). If so, that’s not a crime in my book and those people do not belong on any sex offender list.  Of course, if it was actual rape, that’s a very serious crime and it deserves conviction. Either way, these are not sex crimes against children even though that’s the impression many parents have when parents see or hear about these sex offender registries.  So, when only a small percentage of those on the lists are the ones we truly need to fear (the child molesters and rapists), isn’t there a better solution? Like: LOCK THEM UP AND THROW AWAY THE KEY!  Or, if we are not going to do that, at least create a separate registry for these more serious offenders. Call it the “Scum of the Earth List” and make these people were bright neon monitoring bracelets and anklets so we can see them.

At a minimum, we need follow the advice Human Rights Watch has set forth, as The Economist summarizes:

Human Rights Watch urges America to scale back its sex-offender registries. Those convicted of minor, non-violent offences should not be required to register, says Ms Tofte. Nor should juveniles. Sex offenders should be individually assessed, and only those judged likely to rape someone or abuse a child should be registered. Such decisions should be regularly reviewed and offenders who are rehabilitated (or who grow too old to reoffend) should be removed from the registry. The information on sex-offender registries should be held by the police, not published online, says Ms Tofte, and released “on a need-to-know basis”. Blanket bans on all sex offenders living and working in certain areas should be abolished. Instead, it makes sense for the most dangerous offenders sometimes to face tailored restrictions as a condition of parole.

To clarify my own views: I think lists of serious sex offenders (again, if we aren’t locking them up for longer periods) should be made public, but the lesser offenses (like cases of consensual teen sex in high school) should be kept private so it doesn’t stigmatize those people for life and drive the average public batty in the meantime.

We need to bring some sanity back to America’s sex laws.  And we need to do if for the children. Our kids are not going to be safer (or saner) by artificially inflating sex offender rolls with people who don’t belong on the list in the first place.  That just leads to fear, confusion, and a misplaced sense of justice. We need to punish the true scum more aggressively, and then find more sensible approaches to deal with others.  And let’s get out of the business of putting teenagers on these lists altogether.  That’s just nuts.

A final reason I care deeply about setting things right on this front is because concerns about online child safety — and overblown fears about child predators in particular — are leading to many calls for increased Internet regulation. Down below, I have pasted in an excerpt from my “Parental Controls & Online Child Protection” report in which I explain why this “technopanic” mentality about kids and the Internet is unwarranted.

Appendix: Is America Suffering from a National Child Abduction Epidemic? [ excerpt from “Parental Controls & Online Child Protection,” by Adam Thierer, PFF, ver. 4.0, 2009.]

Debates about online child safety are often driven by fear — fear of bad guys lurking online and waiting to snatch up our children. Indeed, there have been a handful of highly publicized cases of minors being contacted and later abducted or abused by child predators on social networking sites.[1] Such cases do not mean that a national epidemic of Internet-related child abductions is occurring, however. The reality is quite different. As Internet safety expert Larry Magid has noted:

Contrary to what some people might imply, most kids who become victims of online sex predators are not abducted. They are lured after being groomed by their predators. And, though any case is tragic, the fact is that such crimes are relatively rare considering the millions of children and teens that go online every day. Despite thousands of arrests of would-be predators caught up in sting operations, tragic cases like this don’t appear to occur very often.[2]

Indeed, generally speaking, abductions by strangers “represent an extremely small portion of all missing children [cases].”  That conclusion was a central finding of the 2002 National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), a study conducted by the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention.[3] Although the survey is several years old and suffers from some data and methodological deficiencies, it remains the most comprehensive survey of missing and abducted children in the United States.

The NISMART survey broke down juvenile abductions into two categories—family versus non-family. It found that the vast majority of kidnapping victims were abducted by family, friends of the family, or people who had a close relationships with (or the trust of) the minors. Only 115 of the estimated 260,000 abductions—or less than a tenth of a percent—fit the stereotypical abduction scenario that parents most fear: complete strangers snatching children and transporting them miles away.[4] And Lenore Skenazy, author of Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry, notes that, “the chances of any one American child being kidnapped and killed by a stranger are almost infinitesimally small: .00007 percent.”[5]

Despite those findings, public policy debates and media reports remain preoccupied with the horror stories about abductions by random strangers, leaving the impression that the problem is much larger than the more serious issues of family or acquaintance abductions.[6]

Research has shown that this conclusion is also true of child abuse and sex offenders in general, not just abductions. As psychologist Anna C. Salter, author of Predators: Pedophiles, Rapists, and Other Sex Offenders, points out, “[Sex offenders] are part of our communities, part of our network of friends, worse yet, sometimes part of our families.”[7] And former FBI special agent Kenneth V. Lanning, author of Child Molesters: A Behavior Analysis, notes the following:

The often forgotten piece in the puzzle of the sexual victimization of children is acquaintance molestation. This seems to be the most difficult manifestation of the problem for society and the law to face. People seem more willing to accept a sinister stranger from a different location or father/stepfather from a different socioeconomic background as a child molester than a clergy member, next-door neighbor, law-enforcement officer, pediatrician, teacher, or volunteer with direct access to children. The acquaintance molester, by definition, is one of us. He is not just an external threat. We cannot easily distinguish him from us or identify him by physical traits. These kinds of molesters have always existed, but society and the criminal-justice system have been reluctant to accept the reality of these cases.[8]

Clearly, the problem of family and acquaintance abductions and sex abuse predated the rise of the Internet, and it will unlikely be diminished by age verification of minors on social networking websites or other websites. But the argument could be made that abductions by strangers — while exceedingly rare — could be reduced even further by age-verifying minors or adults before they enter certain sites.

This potential reduction may be true, but it is important to remember that predators can’t magically reach through a computer screen and grab our kids. Predators must meet them somewhere in the physical world (i.e., a mall, park, playground, etc.). The danger of the Internet is that it allows predators to groom minors over a protracted period, while doing so from a distance. However, the fact that they are doing so from a distance—and over electronic communications networks, no less—means we have actually gained some important advantages in our effort to combat child predation. Many of the predators leave digital tracks for us to follow. Thus, to the extent that disturbing things are happening online or being facilitated by the Internet in any fashion, at least there is a digital record of those activities or crimes. The electronic tracks have made it easier to recover children or to track perpetrators on many occasions.[9]

Of course, digital records have also made it easier to catch minors engaging in foolish behavior after they post information or photos about their actions online.[10] In past generations, parents often warned their kids to behave themselves in public or else “it will go down on your permanent record.” It was largely just a scare tactic, because there really was no permanent record of the mundane activities of youth. Today, however—for better or for worse—the Internet is becoming “your permanent record.” No doubt, this raises some serious, long-term privacy concerns, but the one positive aspect is that the existence of electronic records makes it easier for parents, website operators, or law enforcement officials to deal with online troublemakers of all varieties.[11] That is why education is essential to make sure both kids and their parents understand that serious consequences are associated with what they post online.

[2] Larry Magid, Abductions by Online Predators Rare, San Jose Mercury News, Oct. 22, 2007,  www.connectsafely.org/articles–advice/commentaries—staff/abduction-by-online-predators-rare.html

[3] Andrea J. Sedlak, David Finkelhor, Heather Hammer, and Dana J. Schultz, National Estimate of Missing Children: An Overview, National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), Oct. 2002, at 7,    www.missingkids.com/en_US/documents/nismart2_overview.pdf

[4] A recent study of cases about missing children in Ohio revealed a similar trend. Of the 11,074 documented missing child cases in 2005, only five involved abduction by strangers compared with 146 abductions by family members. Ohio Missing Children Clearinghouse, 2005 Annual Report, at 4; www.ag.state.oh.us/victim/pubs/2005ann_rept_mcc.pdf

[5] Lenore Skenazy, Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry (San Francisco, CA: Jossey-Bass, 2009), at 16.

[6] Indeed, one recent study suggests that perception has replaced reality in the minds of many in the press and general public, who have increasingly come to believe that stranger abductions account for most missing child incidents. A 2006 analysis of New York Times articles about kidnappings, by Glenn W. Muschert, Melissa Young-Spillers, & Dawn Carr in the Justice Policy Journal, argued that “the Times disproportionately focuses on stereotypical kidnapping incidents, while social science data suggest that familial abductions are far more prevalent.” And abduction estimates made by some activists were also “highly exaggerated,” they found. Unsurprisingly, for those reasons, the authors note that various public opinion polls have revealed that most people believed that abductions by strangers accounted for most missing child cases even though the exact opposite was true. Glenn W. Muschert, Melissa Young-Spillers, & Dawn Carr, 3 Justice Policy Journal, No. 2, Fall 2006, at 4-6.

[7] “Sex offenders only very rarely sneak into a house in the middle of the night. More often they come through the front door in the day, as friends and neighbors, as Boy Scout leaders, priests, principals, teachers, doctors, and coaches. They are invited into our homes time after time, and we give them permission to take our children on the overnight camping trip, the basketball game, or down to the Salvation Army post for youth activities.” Anna C. Salter, Predators: Pedophiles, Rapists, and Other Sex Offenders (New York: Basic Books, 2003), at 5, 76.

[8] Kenneth V. Lanning, National Center for Missing & Exploited Children, Child Molesters: A Behavior Analysis, 2001, www.missingkids.com/missingkids/servlet/ResourceServlet?LanguageCountry=en_US&Pageid=469

[9] See Mark Sherman, Chat Rooms Help FBI Hunt for Pedophiles, USA Today, May 15, 2006, www.usatoday.com/tech/news/2006-05-15-fbi-chat-rooms_x.htm

[10] Wendy Davis, Teens’ Online Postings Are New Tool for Police, Boston Globe, May 15, 2006, www.boston.com/news/nation/articles/2006/05/15/teens_online_postings_are_new_tool_for_police; Andrew L. Wang, “Teen Blog Watch is On,” Chicago Tribune, May 23, 2006.

[11] Eric Tucker, Police Departments Turning to YouTube to Catch Suspects, Boston Globe, Feb. 24, 2007, www.boston.com/news/local/rhode_island/articles/2007/02/24/police_departments_turning_to_youtube_to_catch_suspects

When it comes to theories about how to best raise kids, I’m a big believer in what might be referred to “a resiliency approach” to child-rearing.  That is, instead of endlessly coddling our children and hovering over them like “helicopter parents,” as so many parents do today, I believe it makes more sense to instill some core values and common sense principles and then give them some breathing room to live life and learn lessons from it.  Yes, that includes making mistakes.  And, oh yes, your little darlings might actually gets some bump and bruises along the way — or at least have their egos bruised in the process.  But this is how kids learn lessons and become responsible adults and citizens.  Wrapping them in bubble wrap and filling their heads without nothing but fear about the outside would will ultimately lead to the opposite: sheltered, immature, irresponsible, and unprepared young adults — many of whom expect someone else (the government, their college, their employer, or still their parents!) to be there to take care of them well into their 20’s or even 30’s.  Again, you gotta let kids live a little and learn from their experiences.

This explains why I find Lenore Skenazy’s new book, Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry , to be such a breath of fresh air.  [Here’s her blog of the same name.] She argues that “if we try to prevent every possible danger of difficult in our child’s everyday life, that child never gets a chance to grow up.” (p. 5) As she told Salon recently:

You want kids to feel like the world isn’t so dangerous. You want to teach them how to cross the street safely. You want to teach them that you never go off with a stranger. You teach them what to do in an emergency, and then you assume that generally emergencies don’t happen, but they’re prepared if they do. Then, you let them go out. The fun of childhood is not holding your mom’s hand. The fun of childhood is when you don’t have to hold your mom’s hand, when you’ve done something that you can feel proud of. To take all those possibilities away from our kids seems like saying: “I’m giving you the greatest gift of all, I’m giving you safety. Oh, and by the way I’m taking away your childhood and any sense of self-confidence or pride. I hope you don’t mind.”

Exactly right, in my opinion. Again, let kids live and learn from it.  Teach lessons but then encourage ‘learning by doing’ and let them understand these things for themselves.  That is resiliency theory in a nutshell.

When writing about Gever Tulley’s brilliant “Tinkering School” in this post last year, I noted how I have already started teaching my kids how to use various tools even though they are both under the age of 8.  One of my safety-obsessed yuppie friends stopped by one day to get something and saw my kids playing with hammers, nails, and saws and he thought I was nuts.  But it is he who is nuts for shielding his kids to the joys of learning to build something with their own hands (and for denying them the skills to actually do some honest-to-God manual labor when they get older)!  Have my kids hammered their thumbs on occasion? Yep.  Have they cut or poked their fingers? Check.  But you know what? They bounced back and learned how to be more careful. It’s not like I put a nail gun or power saw in their hands and let them go at it!  But there will be a day that they will be competent enough to know how to use such tools properly, especially because I drill some basic lessons into them each time we pull out those tools. Without me even saying so anymore, they already put on their safety goggles and take other common sense precautions before they use such tools.

Why is it that things have gotten so out of whack, with parents instilling so much fear in their kids about the world?  Skenazy rightly notes that the fundamental problem is that “a lot of parents today are really bad at assessing risk.” (p. 5)  Parents today suffer from “extravagant worry,” she notes. “Extravagant in that it inflates remote possibilities into looming threats that we think we have to watch out for.” (p. 93) “Worrying,” she argues, “has become our national pastime.” (p. 94) “What has changed over the past generation or so is than now people worry… about every activity, even ones that used to be considered simple and pleasant,” she says. (p. 42). Camping, ball games, bike rides, walking to school, etc., are increasingly going out of style. “Millions of moms and almost (but not quite as many) dads now see the world as so fraught with danger that they can’t possibly let their children explore it.” (p. 5)  “And the result is a lot of people so busy preparing for the hideous and unpredictable future that they think nothing of trampling the safe and happy present.” (p. 44)

This has spawned the rise of what Skenazy refers to as the “Just In Case” and “Total Control” mentalities that exist among many parents throughout society today. Many modern parents seem to believe that with just enough safety locks, knee pads, toilet locks, stair gates, and so on, they can keep their kids perfectly safe from all the harms of the world —  both real or (more likely) imagined. Alas, Skenazy argues, “Control is a figment of our imagination. Seeking it only make us more anxious.” (p. 92)  Worse yet, after wrapping those kids in all that bubble wrap, a lot of these same parents force nonsense on them like Baby Einstein videos and Mozart tapes at very young ages hoping that will make those kids geniuses in later life.  It’s more likely they’ll grow up to be Ted Kaczynski.

But if Skenazy is right in arguing that most parents now behave as if “normal childhood has just become too risky to permit,” think of the long-term consequences that has on kids.  Such a relentlessly fear-based mentality breeds distrust, even loathing, of the outside world and all others in it.  Moreover, as I mentioned at the outset, excessive coddling makes it impossible to learn life lessons and build resiliency and responsibility into youngster such that they can go on to become productive citizens.

Skenazy also has some common sense thoughts on the over-hyped issue of Internet sexual predation. As she told Salon:

The world online turns out to be not very different from the world offline. There are some really seedy neighborhoods where you wouldn’t want your kids hanging out, especially if they were wearing high-heeled shoes and fishnets stockings at night. If your kids don’t go there, then your kids are not going to be stalked by predators just looking up prom pictures on Facebook.

Again, exactly right.  And yet, as I have pointed out here before, an irrational “techno-panic” has taken place in recent years over this issue even though the research just doesn’t back up the claim that predators are lurking on every cyber-corner.  Moreover, there’s not a stalker or a child abductor hanging out on every real world corner either. As she notes in the book, “the number of children abducted and killed by strangers [has held] pretty steady over the years — about 1 in 1.5 million. Put another way, the chances of any one American child being kidnapped and killed by a stranger are almost infinitesimally small: .00007 percent.” (p. 16)  And yet, parents today are practically paralyzed by the fear that if they let their kids out of their sight for even a millisecond, they will be snatched.

Skenazy blames sensationalized news coverage for much of this, and I tend to agree.  Even though there are many other tragic ways young kids die each year — and do so in far greater numbers — the media tends to focus on the freakishly rare missing child or abduction scenario until they have whipped up a full-blown public panic.  Incidentally, when those exceedingly rare abductions do take place, it is almost never at the hands of a complete stranger. Generally speaking, abductions by strangers “represent an extremely small portion of all missing children [cases].”  That conclusion was a central finding of the 2002 National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), a study conducted by the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention.  Instead, it’s known acquaintances and family members that represent the overwhelming portion of offenders. As psychologist Anna C. Salter, author of Predators: Pedophiles, Rapists, and Other Sex Offenders, points out, “[Sex offenders] are part of our communities, part of our network of friends, worse yet, sometimes part of our families.” Same goes for the abductions. In the vast majority of cases, it is relatives or parties close to the family (say, a disgruntled nanny) who snatches the child.  In other words, instead of being obsessed about letting your kids ride their bike around the neighborhood or play in the center of the mall, parents should be far more concerned with those they marry, date, or employ!!

In any event, read Lenore Skenazy’s Free-Range Kids.  It is beautifully written and immensely enjoyable. She is an insanely gifted writer that will keep you thinking and laughing at the same time.  That’s a rare gift, and her book is a much-needed gift to over-worried parents everywhere.  Read this book, stop worrying, and then tell you kid to go outside and play!

P.S. Quick closing rant… Can I just tell you how much I hate the scumbag trial lawyers who have made it impossible for my kids to experience the joys of diving boards at the local pool.  Steve Moore of The Wall Street Journal, who takes his kids to the same McLean pool my kids go to, explains how some greedy leeches lawyers have made it impossible for pools like ours to keep high-dive board around like we had growing up.  Maybe we should just ban pools altogether while we’re at it.  Fence-off all the lakes and streams, too.  After all, kids could drown!!

Incidentally, this reminds me of the most sensible thing every written about online child safety. In 2002, a blue-ribbon panel of experts was convened by the National Research Council of the National Academy of Sciences to study how best to protect children in our new, interactive, “always-on” multimedia world.  Under the leadership of former U.S. Attorney General Richard Thornburgh, the group produced a massive report that outlined a sweeping array of methods and technological controls for dealing with potentially objectionable media content or online dangers. Ultimately, however, the experts used a compelling metaphor to explain why education and sensible mentoring was the most important tool on which parents and policymakers should rely:

Technology-in the form of fences around pools, pool alarms, and locks-can help protect children from drowning in swimming pools. However, teaching a child to swim-and when to avoid pools-is a far safer approach than relying on locks, fences, and alarms to prevent him or her from drowning. Does this mean that parents should not buy fences, alarms, or locks? Of course not-because they do provide some benefit. But parents cannot rely exclusively on those devices to keep their children safe from drowning, and most parents recognize that a child who knows how to swim is less likely to be harmed than one who does not. Furthermore, teaching a child to swim and to exercise good judgment about bodies of water to avoid has applicability and relevance far beyond swimming pools-as any parent who takes a child to the beach can testify. (p. 187)

“A child who knows how to swim is less likely to be harmed than one who does not.”  We could apply that lesson to just about everything in this world.  Teach your children well, and then let them live and learn.  And swim!

Today was a big day — and not just because there was an election going on! As I mentioned yesterday, the other big news was that the U.S. Supreme Court was hearing oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. Again, all the background you need can be found in my post yesterday, so here I will just be summarizing my general thoughts about how the oral arguments played out this morning.

Unfortunately, because no electronic devices or even notepads are allowed in the courtroom, much of what I am relaying here is from memory or from the notes that I surreptitiously scribbled on a tiny piece of scrap paper when the guards weren’t looking. (And yes, I have been reprimanded before for taking notes in the Court!)  The transcript has just been released, however, so you can read it through and judge for yourself.  Anyway, here are some general thoughts:

• Balance of Questioning by Justices: Generally speaking, things did not go as well as I had hoped they would.  The justices asked some tough questions for both counsels, but some of the justices seemed surprisingly deferential to the FCC. When Fox lawyer Carter Phillips rose to speak, for example, he was almost immediately interrupted by a barrage of questions from Justice Scalia and Chief Justice Roberts, who both seemed sympathetic to the FCC’s argument that the agency had taken sufficient steps to justify its change of policy about “fleeting expletives” on TV or radio. Scalia, in particular, was probably the most deferential to the agency throughout the questioning this morning.  Not a good sign for the broadcasters or the First Amendment.

• The Chicken-Egg Debate about What Drives Culture:  Scalia also raised the most hard-nosed questions about the impact of such words on our culture. In terms of the ‘chicken-and-egg’ debate about whether media influences society or media just reflects society, Scalia clearly believes that media drives culture. He suggested that broadcasters had unduly influenced culture.  Again, not good for the broadcasters or free speech advocates, but other justices didn’t say much on this issue.

• The APA & Substantive Constitutional Issues: Souter (joined by Roberts and Scalia) also led a line of questioning about whether Fox was essentially asking for a new test under administrative law that provided less deference to an agency when substantive First Amendment cases where being considered. There have always been sticky admin law / APA-related issues involving agency deference when substantive issues and constitutional rights were at stake.  It will be very interesting to hear what, if anything, the Court has to say about that in this case. But, at least from the tone of the questioning I heard today, the Justices still seem quite deferential to agency decision-making even if free speech issues are in play.  Again, really not good for the broadcasters, but this could tip the opposite direction in the final decision.

• Scarcity v. Abundance as a Regulatory Rationale: There was a very interesting line of questioning raised by Justice Ginsburg that lead to a shocking response from U.S. Solicitor General Gregory Garre. She asked about what impact the Internet and online speech cases has had — or should have — for the case before the court. She stressed how much things had changed since the Court’s Pacifica holding in 1978 and implied that might have some bearing on the matter before the court today. [This was one of the key points I raised in my amicus with CDT, in which we argue that changing technological and marketplace realities have a profound bearing on this case and FCC regulation of speech in general].

Amazingly, Solicitor General Garre suggested that the government actually had a stronger case today when it regulates broadcast platforms differently than all other forms of media. His reasoning: Precisely because there are so many other unregulated platforms where kids might see or hear objectionable media, it was vital for the government to quarantine one platform and make sure it is safe from objectionable programming. This is an astonishing argument for the government to set forth as a rationale for regulation as it essentially turns the old “scarcity rationale” for regulation on its head.  Back in the old days, we were told broadcasting had to be regulated because it was scarce.  Today, by contrast, the government tells us we have to regulate broadcast platforms because of media abundance. Damned if you do, damned if you don’t!

This line of questioning generally helps the broadcasters, but if the Court doesn’t reach the substantive First Amendment issues in its decision, then it’s meaningless.

• Community Standards: On a related note, Justice Ginsburg also asked some sharp questions about the continuing sensibility of the “contemporary community standards” test for broadcast television and radio regulation. She wanted to know how the FCC determines these things and how they surveyed the public to determine what “the community” thought was appropriate for broadcast TV and radio. Solicitor General Garre didn’t really have a good answer, and how could he; this is arbitrary government at its worst. The FCC is asking us to believe that a handful of vocal anti-free speech advocates speak for all Americans when they complain to the FCC about various shows. It’s a farce. Millions of average American viewers just turn off the TV and go to bed happy each night after watching TV; they don’t send in a letter to the FCC saying that they liked what they saw. By contrast, the regulatory advocates bombard the FCC with complaints and then the FCC says that counts as the will of the people.

Anyway, these questions about community standards generally help the broadcasters, but I doubt the court will follow through with this line of reasoning in their final decision. They should, however, because it is silly to think the relevant “community” can be determined just by considering broadcast in isolation.  After all, more and more kids these days are watching video online and via other alternative media distribution platforms.

• The End of Live TV & Radio?: There were several questions from Justices Breyer and Scalia about tape delays and whether broadcasters had the ability to essentially delay all live programming to make sure no dirty words got through.  I thought the justices would have understood why ending live television and radio was a bad idea, but some of them sounded like they were enamored with that notion. Again, very, very troubling for the broadcasters. (Incidentally, during this line of questioning, I found myself thinking how now might be a good time to invest in the tape delay technology business! Seriously, if the FCC wins this case, it may be that every broadcaster in America has to invest in tape delay equipment and rigorously scrub live TV on the fly.  Just think how silly this is in the age of the Internet and instantaneous online video.)

• • –

Again, these are just my initial thoughts. I need to go through the transcript again later and digest everything again before I say anything more.  Overall, however, I am concerned for the First Amendment after this morning’s arguments in the Supreme Court. We could get a close decision in favor of the FCC and the agency’s ongoing effort to expand content controls.

On the other hand, it’s difficult to get a read on some the members of the court. After all, Justices Alito and Thomas didn’t say a peep today, and Justice Kennedy only spoke up once or twice.  And just because some of them asked hostile questions that seemed deferential to the FCC, that doesn’t automatically mean they will ultimately vote in the agency favor in this case.  We’ll just have to wait till next spring or summer to get their final verdict.

Tomorrow morning, the U.S. Supreme Court will hear oral arguments in the potentially historic free speech case of Federal Communications Commission v. Fox Television Stations, Inc. I plan on attending and will try to post some thoughts about how the arguments played out here later tomorrow afternoon or evening. [I won’t be able to live blog of Twitter it because no electronic devices are allowed in the courtroom, which I’ve always thought is outrageous.] In the meantime, here again is the background of the case.

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 and the full 2nd Circuit 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.]

In a 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.” The decision demonstrates how, over just the past few years, the FCC has arbitrarily thrown out 30+ years worth of precedent and greatly expand the scope of its regulatory authority over speech on broadcast TV and radio. As a result, the FCC’s order was vacated and remanded to the agency. The agency appealed the decision, however, and the Supreme Court accepted it for review.

As I noted back in August, I submitted an amicus brief to the Supreme Court along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology. In that brief, we argued that this case will have profound ramifications for the future of the First Amendment and the regulatory treatment of old and new media platforms alike. It is important that the FCC not be permitted to so casually change its regulatory approach, as it did in the matter before the Court today. The FCC’s new approach has created a confusing and arbitrary regulatory atmosphere that leaves many speakers wondering what they can and cannot say on broadcast television and radio stations today.

It’s also vital that the Court recognize how the FCC is being unduly influenced by a small handful of particular vociferous special interest groups who are artificially inflating the number of indecency complaints and attempting to propagate the myth that they speak for the masses. It is important for the Supreme Court to not allow a small minority to achieve a “heckler’s veto” over content on television or radio.

Finally, it is important that the Supreme Court rein in the FCC in this matter to also ensure the agency does not seek to expand its powers to cover new media platforms. The First Amendment rights of speakers using cable, satellite, and even the Internet, could be at stake here. We live in an age of media and technological convergence and, therefore, it is vital the Court not allow the FCC to engage in a form of regulatory convergence by letting this old regime bleed over into new quarters.

What many of us will be listening for tomorrow during oral arguments is some sort of indication of whether the Court wants to get into the substantive First Amendment issues at stake here, or instead just stick to the procedural (APA) issues that were at the heart of the Second Circuit decision. In particular, a lot of us are wondering whether the Court will get into the the thorny issues and theories set forth in the Court’s controversial 1978 decision of FCC v. Pacifica Foundation.  This summer, upon its 30th anniversary, I penned a 6-part series of essays about the Pacifica decision and the “pervasiveness doctrine.”  It will be very interesting to see if pervasiveness is discussed tomorrow in the questioning by the justices. If it is, that could signal that the court might be willing to get into the substantive First Amendment issues here instead of merely addressing process-related concerns.

If you are interested in reading more opinions about the FCC v. Fox case, I have itemized all the amicus briefs before the court. [I have also blasted some folks on the Left who filed briefs in the case for failing to defend the First Amendment and instead calling upon the court to just defend their sacred regulatory cows (namely, the Red Lion decision and the “scarcity rationale” for FCC regulation of the media marketplace.)] Finally, here are a few additional articles or essays about the case that you might want to check out for basic background, or to see what others are saying:

• SCOTUS Wiki page for the case
• SCOTUS Blog argument preview
• Adam Liptak, “Must It Always Be About Sex?” New York Times
• William Triplett, “Fox v. FCC heads to Court,”Variety
• David G. Savage, “On the Supreme Court Docket: bleeeeeep,” Los Angeles Times
• Joan Biskupic, “Supreme Court to Hear FCC Appeal over Dirty Words,” USA Today