In response to civil unrest, the Egyptian government appears to have ordered service providers to shut down all international connections to the Internet. According to the blog post at the link just above, Egypt’s four main ISPs have cut off their connections to the outside world. Specifically, their “BGP routes were withdrawn.” The Border Gateway Protocol is what most Internet service providers use to establish routing between one another, so that Internet traffic flows among them. I anticipate we might have comments here that dig deeper into specifics.

An attack on BGP is one of few potential sources of global shock cited by an OECD report I noted recently. The report almost certainly imagined a technical attack by rogue actors but, assuming current reporting to be true, the source of this attack is a government exercising coercion over Internet service providers within its jurisdiction.

That is far from an impossibility in the United States. The U.S. government has proposed both directly and indirectly to centralize control over U.S. Internet service providers. C|Net’s Declan McCullagh reports that an “Internet kill switch” proposal championed by by Sens. Joseph Lieberman (I-Conn.) and Susan Collins (R-Maine) will be reintroduced in the new Congress very soon. The idea is to give “kill switch” authority to the government for use in responding to some kind of “cyberemergency.” We see here that a government with use “kill switch” power will use it when the “emergency” is a challenge to its authority.

When done in good faith, flipping an Internet “kill switch” would be stupid and self-destructive, tantamount to an auto-immune reaction that compounds the damage from a cybersecurity incident. The more likely use of “kill switch” authority would be bad faith, as the Egyptian government illustrates, to suppress speech and assembly rights.

In the person of the Federal Communications Commission, the U.S. government has also proposed to bring Internet service providers under a regulatory umbrella that it could turn to censorship or protest suppression in the future. Larry Downes has a five-part analysis of the government’s regulatory plan here on TLF (1, 2, 3, 4, 5). The intention of its proponents is in no way to give the government this kind of authority, but government power is not always used as intended, and there is plenty of scholarship to show that government agencies use their power to achieve goals that are non-statutory and even unconstitutional.

The D.C. area’s surfeit of recent weather caused the cancellation yesterday of a book event I was to participate in, discussing Evgeny Morozov’s The Net Delusion: The Dark Side of Internet Freedom. I don’t know that he makes the case overwhelmingly, but Morozov argues that governments are ably using the Internet to stifle freedom movements. (See Adam’s review, hear Jerry’s podcast.)

Events going on here in the United States right now could position the U.S. government to exercise the kind of authority we might look down our noses at Egypt for practicing. The lesson from the Egypt story—what we know of it so far—is that eternal vigilance is the price of freedom.

Amazon made headlines last week when it abruptly cut off service to Wikileaks, allegedly on the grounds that the site had violated Amazon’s terms of acceptable use. However, Amazon’s supposedly “voluntary” decision came less than 24 hours after Amazon received a phone call from Senate Homeland Security Committee staff (at the behest of Sen. Joe Lieberman) inquiring about the firm’s relationship with Wikileaks. According to a report in The Guardian, Amazon’s decision to terminate service to Wikileaks was a “reaction to heavy political pressure.”

That’s not all. Glenn Greenwald reported last week on Salon.com that another Internet company, Tableau Software, also decided to disable service to Wikileaks because of pressure from Joe Lieberman. Unlike Amazon, Tableau admitted that its decision was directly prompted by pressure from Lieberman. From Tableau’s statement:

Our decision to remove the data from our servers came in response to a public request by Senator Joe Lieberman, who chairs the Senate Homeland Security Committee, when he called for organizations hosting WikiLeaks to terminate their relationship with the website.

It’s difficult to see Joe Lieberman’s “public request” as anything but a thinly-veiled threat. Case in point: In addition to his staffers’ phone calls, Lieberman went on MSNBC last week, stating bluntly, “we’ve got to put pressure on any companies … which provide access to the Internet to Wikileaks.”

As Chairman of the Senate Homeland Security Committee, Lieberman is in a uniquely powerful position to push for legislation that might harm private firms like Amazon. He can also hold Congressional hearings, which frequently turn into public spectacles and garner massive media coverage. A company’s CEO enduring a congressional grilling on Capitol Hill can significantly impact that firm’s public image — and, in some cases, its stock price as well. While no individual Senator has the power to enact laws, promulgate rules, or enforce regulations, a single crusading politician can arguably cause cognizable harm to any U.S. company that pushes back against “requests” to suppress unfavorable content.

How does this implicate the First Amendment? As EFF’s Rainey Reitman and Marcia Hofmann pointed out on the DeepLinks blog, “The First Amendment to the Constitution guarantees freedom of expression against government encroachment — but that doesn’t help if the censorship doesn’t come from the government.”

There’s an important caveat to this point, however: When government coerces private entities into suppressing protected speech, it can trigger First Amendment scrutiny. Via my colleague (and First Amendment guru) Hans Bader:

In First Amendment cases, not only the party bound by a settlement or regulation, but also people whose speech or access to information is affected by it, have the right to challenge its restrictions.  (See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990) (A private employee could sue a government official under the First Amendment for pressuring his private employer to fire him for his speech, even though private employers can voluntarily terminate employees for their speech when the employer is not operating under government pressure); and Truax v. Raich, 239 U.S. 33 (1916) (The Supreme Court held a state government liable under the Constitution for pressuring a private employer to fire a private employee based on his being an alien, even though his employer could have voluntarily dismissed him without violating any law)).

Of course, as an elected legislator, Lieberman enjoys fairly broad First Amendment rights to express his own political views. As the Supreme Court ruled in Bond v. Floyd:

The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy.

While Lieberman’s tirade against Wikileaks was certainly related to matter of public policy, was he actually expressing an opinion on policy? Or was he simply threatening private firms for facilitating the dissemination of speech he didn’t like? Legislators rightly enjoy broad leeway to speak their minds about legislative matters and criticize their political opponents, but should a legislator’s own First Amendment rights enable him to trample the First Amendment rights of private citizens engaged in political discourse?

If the First Amendment doesn’t protect Sen. Lieberman’s attack on Wikileaks, he may still be immune from suit. Under the doctrine of qualified immunity, government officials including legislators cannot be held personally liable or forced to stand trial for committing unlawful actions in their official, non-legislative capacity unless they violate “clearly established law.” Legislators also enjoy absolute immunity for actions they undertake in a legislative capacity.

As the former Connecticut Attorney General, Sen. Lieberman should have known full well that his actions were directly antithetical to Wikileaks’ First Amendment rights. As such, a court might find that his conduct is not covered by qualified immunity. Consider, for instance, this excerpt from a ruling by the Eighth Circuit in Zilich v. Longo (34 F.3d 359):

We also agree with the findings of the district court that Zilich’s First Amendment right of free speech was “clearly established” for qualified immunity purposes. The law is well settled in this Circuit that retaliation under color of law for the exercise of First Amendment rights is unconstitutional, and “retaliation claims” have been asserted in various factual scenarios.

Even if Lieberman is covered by qualified immunity, however, Wikileaks might still be able to obtain an injunction to prevent Lieberman from making any further statements pressuring private companies to terminate service to Wikileaks. While this wouldn’t undo the harm the site has already suffered on account of Lieberman’s “public request,” it would still mark an important symbolic victory for Wikileaks — and for the First Amendment.

A crucial question in determining whether Wikileaks has grounds for a First Amendment claim against Lieberman is whether the site’s ongoing dissemination of the 250,000 leaked cables is protected by the First Amendment. On one hand, Julian Assange may be guilty of violating the Espionage Act of 1917, as Sen. Dianne Feinstein argues forcefully in an op-ed in today’s The Wall Street Journal. On the other hand, the Wikileaks website may well enjoy the same First Amendment protection that the publication of the Pentagon Papers was found by the Supreme Court to enjoy in New York Times Co. v. United States. Via the WSJ Law Blog, which recently interviewed Jack Balkin of Yale Law School:

On the First Amendment question, Balkin said most First Amendment lawyers would say that preventing the publication of material “is justified only where absolutely necessary to prevent almost immediate and imminent disaster. It’s an extremely high standard.” Balkin said that the standard for exacting criminal punishment or winning a civil injunction after publication, as might be the situation in the WikiLeaks case, is less settled. “But one assumes the standard is going to be very very high too.”

An interesting 2005 opinion from the Eighth Circuit ( Dossett v. First State Bank, 399 F.3d 940) suggests that Wikileaks might even have a case against Amazon as well, depending on the specific nature of the interactions between Amazon and Sen. Lieberman’s office. Under 42 U.S.C. § 1983, private entities may face civil action if they conspire with government to deprive anybody within U.S. jurisdiction of their constitutional rights. Under Dossett , if Amazon “willfully participated with state officials and reached a mutual understanding concerning the unlawful objective of a conspiracy,” Wikileaks may be able to collect damages for harm it incurred due to Amazon’s termination of its service.

Whether Lieberman’s actions are legal or not — and whatever you think about Wikileaks in general — his efforts to coerce private companies to terminate service to Wikileaks should deeply concern anybody who cares about free speech. As Glenn Greenwald put it:

That Joe Lieberman is abusing his position as Homeland Security Chairman to thuggishly dictate to private companies which websites they should and should not host — and, more important, what you can and cannot read on the Internet — is one of the most pernicious acts by a U.S. Senator in quite some time.

Unfortunately, this is just the latest instance of a politician “thuggishly” pressuring a private firm to stifle speech. A few months ago, I wrote about a group of state attorneys general successfully bullying Craigslist into terminating its legal “adult services” section. And back in 2008, I wrote about former New York Attorney General Andrew Cuomo strong-arming Usenet providers into shutting down dozens of newsgroups in their entirety simply because they contained a handful of illegal files.

A victory for Wikileaks against Joe Lieberman would set a powerful precedent discouraging thuggish politicians from campaigning against Internet sites protected by the First Amendment.

Sen. Joe Lieberman’s Protecting Cyberspace as a National Asset Act of 2010 (“PCNAA”) would give new cybersecurity bureaucracy sweeping new powers over virtually all private communications infrastructure in the United States, warns PFF Senior Adjunct Fellow Jim Dunstan in a new PFF paper. Jim walks through the bill’s broad definitions and explains the dangers in giving such vast, imperial powers to the President. With the bill out of committee and moving towards the Senate floor, this fight’s just getting started!

Lieberman’s Cyberspace Protection Bill: Enhancing Cybersecurity, or Establishing a New Uber-Authority? http://d1.scribdassets.com/ScribdViewer.swf

It exalts terrorists and terrorism to try chasing their videos off the Internet, and it doesn’t work. Senator Lieberman’s quest to cleanse the Internet of terrorism has won a battle in a losing war by convincing Google to take down such videos. They can still be found on LiveLeak and can be hosted on any of millions of servers worldwide.

[In his eager anti-Google gafliery (“gadfliery” – the nominative case of the verb “to gadfly,” which I just invented), I’m sorry to say that TLF friend Scott Cleland has gotten it wrong.]

The better approach is to treat terrorists as the losers that they are. Their videos do not scare us, but provide us opportunities to observe, comment, and deplore them, perhaps even mocking their foolishness. In this video, at minute 2:18, terrorists appear to be training for the circus. We’ll really fear them when they can fend off lions with a chair.

Today and tomorrow I am attending a terrific conference at Penn State University called, “Playing to Win: The Business and Social Frontiers of Videogames.” It features panel discussions about various legal and business issues facing the video game industry, as well as discussions about how video games are used to aid teaching and learning. There are also panels on multiplayer online worlds and virtual reality environments and the issues surrounding both. [They will apparently be posting videos from the conference on their site shortly.] The folks at PSU were kind enough to invite me to deliver the luncheon keynote on Day 1 and I decided to provide a broad overview of the policy issues facing video games that I have covered in some of my past work. My presentation was entitled, “Video Games, Ratings, Parental Controls, & Public Policy: Where Do We Stand?” and the entire 36-slide presentation is now available online here. Down below, I thought I would just outline a couple of the key themes I touched upon in my presentation.

ESRB: Strengths & Challenges

One of the things I did in my presentation was to provide a brief sketch of how the Entertainment Software Rating Board (ESRB), the game industry’s voluntary rating and labeling system, works. After doing so–again, you can download the entire presentation if you want those details–I outlined the strengths of the ESRB system, which I listed as follows:

Then I discussed some of the challenges facing the ESRB system…

General Thoughts on Ratings vs. Government Regulation

Later in the presentation, after walking through how various parental control tools worked, I talked about my general feelings regarding critiques of private rating systems and the ESRB in particular:

Future Issues & Controversies

I concluded by throwing out a few predictions about future issues and controversies that I think we will be debating in coming months and years.

I suppose I should provide some more details regarding this last slide since it will be of the most interest to many readers. Here’s some more explanation regarding each of my 7 predictions:

(1) Renewed push for universal media ratings: This issue has always been hanging out there and I think we will continue to hear calls–from both policy makers and media critics–for some sort of universal rating system for all media. God only knows how that would work. The last Star Wars movie (“Revenge of the Sith”) yielded several distinct media products: a major theatrical motion picture, a video game, a book, a comic book, and even a musical soundtrack. Should they all be rated the same way using the same system? I think that would be difficult to pull off. More worrisome is the fact that any move toward a universal rating scheme would undermine much of the education and awareness-building efforts that have helped familiarize consumers (especially parents) with the ESRB and other existing private rating and labeling systems. Finally, because it is unlikely we will ever see a voluntary movement by all major media producers to abandon their existing rating schemes and adopt a universal system, such a move would likely only come about because of action by government officials. Of course, that raises a host of First Amendment issues. For that reason, we might instead see a push for…

(2) Oversight of ESRB by Congress or non-profit / academic groups: Some critics say that the ESRB needs more “objective” oversight by either a regulatory agency or some of the third-party group, like an academic institution. As I point out in some of those slides above, ratings will ALWAYS have a subjective element to them since raters all bring different values and insights to the task of judging artistic expression. So making the rating process more bureaucratic isn’t going to make matters any better. Instead, it will just politicize the system and slow it down. [See my lengthy essay on this issue from a few weeks ago.]

(3) More FTC oversight of retailer enforcement: The Federal Trade Commission already conducts secret shopper surveys and issues an occasional report about the “Marketing of Violent Entertainment to Children.” Those reports has shown that retailer enforcement of the ESRB rating system is improving, but still needs to improve. [Here you will find my detailed thoughts on the conclusion of the last FTC report.] But there have been some calls in Congress for stepped-up FTC oversight, and potential penalties, for retailers who fail to enforce the system properly. (Remember Sen. Clinton’s “Family Entertainment Protection Act”?)

(4) Mandatory age verification for MMOGs & online activities: Here’s one to keep a close eye on. With a debate raging about the wisdom and effectiveness of age verification for social networking sites, it’s only a matter of time before online video games are brought into the discussion in a major way. The recent Bryon report in the UK included a discussion of this in the online gaming section of their final report. Stay tuned, this debate is set to explode here in the States.

(5) Mandatory parental controls defaults: One of my next white papers discusses the perils of government mandates that might force media & technology providers to not only embed parental controls in all their devices, but also turn them “ON” when they are shipped to market (meaning they would set to their most restrictive position as a defaults). For example, it could be required that every video game console be shipped with on-board screening technologies that were set to block any games rated above “E” (i.e., “Everyone”-rated games). Similarly, all personal computers or portable media devices sold to the public could be required to have filters embedded that were set to block all “objectionable” content, however defined. If “default” requirements such as this were mandated by law, parents would be forced to opt out of the restrictions by granting their children selective permission to content above a certain ESRB rating. In theory, this might help create another roadblock to underage access to some objectionable content, but it would also create an enormous consumer backlash and lead to a great deal of regulatory hassles and console hacking. Again, I’ve got an entire paper coming out on this issue from PFF next month that addresses my reservations with such a mandate.

(6) What happens when “AO” games hit consoles? I created some controversy recently when I noted that: “Whether any of us care to admit it, the fact that AO-rated games are currently kept off the major consoles and off the shelves at some major retailers (ex: Wal-Mart and Target) is probably the most important thing holding back a full-on legislative assault on video games.” Some took that to mean that I was advocating rigorous self-censorship of “AO” (Adults Only-rated) games. To the contrary, as I told MTV Multiplayer News, “I am in no way advocating that the industry hold off in terms of allowing complete creative expression.” And I also told MTV Multiplayer that I thought that eventually one of the major consoles–probably Sony–would cave and allow some AO-rated games on their platform. But make no doubt about it, when that happens, all hell is going to break loose. Not only with the typical pro-censorship crowd kick their complaint-generating factories into high gear, but a lot more average parents will protest the move and likely petition lawmakers for greater regulation of games or consoles.

(7) What about virtual reality games? And finally we come to virtual reality. All these other video game debates we have been having pale in comparison to the heated debate we can expect during the coming decade as virtual realities games and devices proliferate. And we all know they are coming. I fully expect that something like the Star Trek “holo-deck” will be in my living room by the time my kids are teenagers. We are already seeing more “tactile” devices coming to market, such as steering wheels and video game guns, that add a new layer of involvement to the games we play. Most recently, video game vests are hitting the market that simulate the sensation of being shot while playing a game. Once you combine these tactile technologies with more visually immersive visual display technologies, we will be well on our way to a serious VR world. And once they figure out a way to make it fully online and interactive, a huge policy debate is going to develop over the wisdom of letting people (especially kids) play holo-deck games where they actually feel like they are inside Halo or World of Warcraft, mowing down competitors with plasma rifles and broad swords. (Personally, I am very eager to try out “Resident Evil” this way!) Regardless, this debate is coming and it will be a very heated affair.

On Monday, October 9th, Sen. Joe Lieberman (D-CT) delivered a major address about Internet content and online child safety that was intended to serve as a sort of call-to-arms for policymakers, parents and industry to get more serious about the issue.

In his wide-ranging remarks, Lieberman bemoaned the relentless pace of technological change and how the Internet and digital media technologies were making it increasingly difficult for parents to protect children from objectionable material or, worse yet, child predators. “The Internet is a wondrous, revolutionary medium,” Lieberman said. “But there is too often a thin line between the awe-inspiring and the simply awful, and with each new technological breakthrough, it seems that the opportunities for our children to fall into that awful gap grow greater and graver.”

In this essay, I will dissect Sen. Lieberman’s manifesto and provide a detailed response to his assertions and proposals. I feel this is necessary because his address touches on many of the major themes and proposals that are framing the debate over Internet regulation that is taking place in America today.

BACKGROUND: WHY WE SHOULD TAKE JOE SERIOUSLY

Sen. Lieberman delivered this address while campaigning in Connecticut as he attempts to retain his Senate seat against Democratic Party challenger Ned Lamont. But this was much more than just another stump speech and Sen. Lieberman is certainly no Johnny-come-lately to the debate over media content.

Sen. Lieberman has a long track record of advocacy on media issues, especially video game regulation and rap music lyrics. Over the past two decades there was probably no other member of Congress–with the possible exception of former Democratic Senator Fritz Hollings–who was more vociferous on these matters. In fact, the pressure Sen. Lieberman single-handedly brought to bear on the video game industry back in the mid-90s drove it to adopt a voluntary ratings system. And he supported several other legislative measures through the years, including the Media Marketing Accountability Act of 2001, which proposed federal regulation to control how media / entertainment products were advertised and marketed. (In this 2002 Cato Institute publication, I critiqued the Media Marketing Accountability Act in detail starting on pg. 6).

In other words, when Sen. Lieberman delivers a major address on these issues, it’s worth paying close attention because he is a thought leader in this field. Moreover, he is helping to change to the way Democrats– the traditional defenders of unfettered freedom of speech and expression in Washington–think about these issues. Even if he doesn’t win his re-election bid, he’ll likely remain a major player in this debate and others in Congress will use the playbook he has put together during his two-decade tenure in the Senate. Finally, the concerns that Lieberman raises are real concerns for many parents out there, including my wife and me who are busy raising two Information Age kids.

ARE KIDS REALLY LESS SAFE BECAUSE OF THE NET?

In his address, Lieberman argued that “technology is changing more rapidly than our ability to protect our kids. I believe the time has come to fight back. Not to stop the march of progress–but to help parents keep pace.” Lieberman laments that:

“parental supervision is becoming ever-more challenging now that the Internet is accessible on many kinds of devices, including cell phones. It’s one thing for a parent to turn off the TV, like I did when my daughter was watching that raunchy show more than a decade ago. But today, kids have access to a whole new hidden world of entertainment through a wide variety of devices, many of them small enough to fit in a shirt pocket.”

No doubt there is a great deal of truth in this statement. The world has changed in some very important ways and the Internet and online content creates some new and unique challenges for parents like me.

But Lieberman seems to only focus on the negative aspects of these changes in his remarks. For example, Lieberman uses the Mark Foley scandal to illustrate the supposed dangers of the Internet and instant messaging. “Because of Mark Foley’s use of instant messaging to prey on young pages, more parents are now familiar with that particular risk.”

It is somewhat irresponsible, in my opinion, for Lieberman to suggest that the Foley scandal illustrates the “particular risk” of instant messaging to kids. What the Foley case instead proves is what many studies about child predators have repeatedly made clear: The vast majority of children who are threatened or sexually abused are victimized by family, friends of family and people who have close relationships with (or the trust of) minors. In this case, Rep. Foley already knew the minors and was “grooming” them using frequent instant messages. But the important point here is that Rep. Foley had already met these boys in the real, physical world and had gained their trust there. Does it really make a difference how he communicated with them after that? If Foley has used telephones to groom these minors, would Sen. Lieberman suggest that the Foley case illustrated the “particular risk” of letting kids use phones?

Lieberman also suggests that, along with the Foley scandal, a couple of high profile child predation cases that involved Internet contact, “represent just the tip of an iceberg of indecent activity spurred on by the Internet. One study reported that about one out of every six children online receive a sexual solicitation. That is a frightening statistic–and an even more frightening reality for today’s parents.”

First of all, Sen. Lieberman gets that 1-in-6 number from the second “Youth Internet Safety Survey” (“YISS-2”), but he misreports it. The actual number is one in seven (13%), not one in six. Second, the correct 1-in-7 number is actually a reduction from the 1-in-5 (19%) result from the first (“YISS-1”) survey. So things have improved somewhat (but clearly that is still a troubling number). Third, and perhaps most importantly, what Sen. Lieberman didn’t mention is that a significant percentage of those “solicitations” are kids talking to other kids. When 17-year old Johnny propositions 16-year old Jenny, it’s a “solicitation” for purposes of studies like this. Of course, teens were delivering salacious solicitations to each other long before the Internet came along, but parents (and policymakers) had no way to track it unless they found a dirty note in their school bag or pants pocket. This is not to condone the rude and raunchy behavior that some teens engage in, but let’s be realistic about this issue and understand that, in a certain sense, this problem has always been with us. It’s just far more visible to us now.

That being said, there is no doubt that there are many adult predators out there who are using the Internet and new communications technologies in an attempt to contact kids and groom them. If an adult is using the Net to sexually proposition a child in any fashion, it is a serious problem. (Down below I discuss what we should be doing about it). But, again, let’s put things in a little perspective here. Predators can’t magically reach through a computer screen and grab our kids. They have to meet them somewhere in the physical world (i.e., a mall, a playground, etc). The danger of the Internet is that it allows predators to groom minors over a protracted period of time but they are doing so at a distance.

But the fact that they are doing so at a distance and over electronic communications networks means that we have actually gained some important advantages in our effort to combat child predation. Many of these predators leave digital tracks for us to follow. Hopefully, law enforcement officials are doing whatever it takes to follow those tracks and catch the bad guys before they hurt our kids.

But, like so many other politicians who sound off on this issue, Sen. Lieberman repeatedly shifts the blame and responsibility for this problem back to private companies: “Internet companies, he argues, “[should] come up with more effective software… to keep predators away from [children]” and that “major websites frequented by children should pursue new approaches to block child sex offenders from logging onto them.”

When Lieberman wrote that, did he stop to ask himself what the government is doing to deal with this problem? After all, at root, the most essential role that government has is protection of the people from harm, especially helpless kids. It is not the job of private companies to enforce law and order or bring bad guys to justice. That is the government’s job. And they aren’t doing a very good job of it when it comes to online child safety. Consider this fact: 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.

Now, let me ask an obvious question: WHY ARE THESE CREEPS WALKING THE STREETS? Why is our government only putting people who viciously hurt innocent children behind bars for just seven years and then letting them out after just three? Why is Sen. Lieberman saying that “major websites frequented by children should pursue new approaches to block child sex offenders from logging onto them”? Excuse me, but why are know sex offenders logging on to those sites at all! Why are they not in prison and why have they not been denied access to computers!

This is what gets me so incensed about the debate over online child protection today: Policymakers are fond of pointing fingers at everyone else and scolding them for not doing enough to protect children from predators, all the while conveniently ignoring their own policies that allow those predators to be on the streets and behind keyboards in the first place! It’s not “market failure” at work when child predators are lurking behind keyboards, it is government failure in the extreme.

If those bad guys committed crimes before, then they should probably still be sitting in a jail cell instead of in front of a keyboard trying to lure our children in. And even if they haven’t committed a crime against children before, the government should be using its resources to find those who attempt to lure our children and see if they can catch them in a sting operation before they harm our children. Website operators, ISPs and all online companies will be happy to assist in that effort when a potentially threatening individual is identified or suspected. Most of them already have firm policies in place of working with law enforcement to identify threats and take action against them in conjunction government officials. And all online operators are required by law to report any incidence of child predation or child pornography to the National Center for Missing and Exploited Children (NCMEC) immediately, which they will gladly do when they see it. After that, it’s up to law enforcement to do the right thing and put these predators away for a long, long time.

So when Sen. Lieberman calls for Internet companies to take steps to solve the child predator problem, he is starting in the wrong place. Internet companies will always be willing to do whatever it takes to root out this despicable element online. After all, what good does it do them to have these creeps lurking on their networks and trying to prey on young users? It’s not like that’s good for business.

But the first order of business is for government to get its act in order and get far more serious about protecting our children from online threats. Luckily, the recently passed Child Safety Act is good step in the right direction since it increases mandatory minimums for child predators. But more can be done to train, equip and fund law enforcement efforts to find the bad guys. In the meantime, let’s not blame the Net for all our problems or expect online operators to solve this problem with a simple software fix. That’s a horribly short-sided and completely backwards way of dealing with this problem.

LIEBERMAN’S PLAN FOR THE “BAD PICTURES” PROBLEM

What I have been discussing above is Sen. Lieberman’s plan for how to deal with what I call the “Bad People” problem versus the “Bad Pictures” problem. In my work on these issues, I generally break down online safety and parental control issues into these two major categories and deal with them separately. “Bad pictures” is simply shorthand for all potentially objectionable content, and the “bad people” problem refers to the predators or child pornographers lurking online.

In this next section, I want to address Sen. Lieberman’s 3-prong plan to deal with “Bad Pictures” problems.

1 – Corporate Responsibility Part 1 of Lieberman’s plan is to “demand more corporate responsibility” and this part of the Lieberman’s proposed agenda has three subcomponents: (a) Industry self-censorship; (b) Providing more tools to parents; and, (c) More education efforts.

(a) First, Lieberman suggests that a fair degree of corporate self-censorship is in order.

“The big [media] corporations should also do more to clean up their own act on the Internet… Today I call on the largest businesses involved in the Internet to hold a summit to develop industry standards for protecting children from inappropriate content on the web.”

I find this to be the most troubling aspect of the “corporate responsibility” portion of Lieberman’s manifesto. When lawmakers or regulators call for self-censorship, and even go so far as to suggest what types of content that media creators should self-censor (as Lieberman does at points in his address), then it is tantamount to actual government censorship. Elected leaders have coercive powers at their disposal to threaten media creators or distributors to do things they otherwise might not do. (I provided a recent example of this in an essay last year about how Washington lawmakers and regulators bullied cable and satellite companies into “voluntarily” adopting “family-friendly tiers” of programming.)

There is a fine line between government officials using the power of the bully pulpit to preach morality and the direct censorship of media content.

(b) Lieberman also suggests that digital media operators and distributors should provide more tools to parents to shield their children from potentially objectionable Internet content. “[B]ig Internet companies could also finance a major research and development program to come up with more effective software to keep children away from unsafe Internet sites, and to keep predators away from them.”

It’s tough to argue with this recommendation. Empowering parents by giving them more tools is always a good idea. But it’s also important to acknowledge that some important strides have already been made in terms of parental empowerment. As I documented in my recent study “Parents Have Many Tools to Combat Objectionable Media Content,” families have an unprecedented level of parental control options at their disposal. Certainly there is room for improvement, and critics like Lieberman can always argue that media and communications companies should “do more” to address the concerns parents have. But media producers and digital content distributors are already doing quite a bit in terms of providing filters, set-top box controls, online websites with helpful tips, and so on.

Of course, whether or not parents are taking advantage of the tools and options at their disposal is another matter entirely. Indeed, the biggest problem I have identified in the debate over parental controls and child protection is the old “You can lead a horse to water but you can’t make them drink” conundrum. No matter how good the parental controls or ratings systems are that you give parents, for whatever reason, some of them just never use them. For example, we still can get more than 15% of American households to use the V-Chip even thought that filtering tool is available in every TV set today. And many parents still let their kids watch movies or play video games that are clearly labeled for older, more mature audiences.

Some of this might be due to simple laziness or the (somewhat arrogant) belief by some parents that their kids are different (i.e., “better”) than other kids and so they don’t have to worry about this. But in the forthcoming second edition of my survey of parental control tools and methods, I conclude that the primary reason that many parents don’t bother to use many of the tools at their disposal is because they already use a wide variety of informal “household rules” to tailor their media experience to their family’s specific needs or values. “No TV or video games until you finish your homework” or “No TVs, computers or game consoles in your bedroom,” are two such rules that are popular in many households. But there are countless other informal household rules and these rules are often a far more effective way of dealing with these issues. The parental control tools or technologies that media providers offer simply supplement–not supplant–these rules in many households. And that’s the way is should be. There is no silver-bullet technology that can take over our parenting duties. But parental control tools and technologies can make our job a little easier. (Personally, I look at parental control tools as speed bumps that can slow my kids down a bit before I can talk to them about media content or decide whether or not I want them consuming that content at all).

(c) Education is the final component of Senator Lieberman’s “corporate responsibility” agenda and it is the most commendable portion of it.

“The big Internet companies should fund a national campaign to educate parents about the online risks faced by their children, and how they can best protect their families. That campaign should also focus on teaching kids to be careful about sharing personal information…”

Again, it’s tough to argue with this recommendation. Education is always the best answer, in my opinion, and it should be the first option we turn to before many of the other steps Senator Lieberman recommends in his address. I recently called for all Internet and digital media operators to consider getting together and crafting a voluntary “online code of conduct” to preempt government calls for regulation and a unified education effort was a major component of this code. This education effort would include a significant expenditure of funds to finance public service announcements (PSAs) or sponsor other parental / consumer education efforts to promote awareness. Other educational efforts might include: more clearly-worded and easy-to-implement “how-to” guides with all products or (when applicable) “out-of-the-box” set-up guides to help users immediately enable parental enable controls / filters; clearly displayed links, buttons or phone numbers (i.e., “hotlines”) for parental / child assistance; and more online points of contact and reference to help explain parental controls, ratings or filters.

So, Sen. Lieberman is on solid ground here and I would hope industry would take him up on this part of his challenge. (Moreover, I wouldn’t mind seeing government get far more serious about media literacy efforts in the classroom to teach children how to be savvy media users / consumers.)

2 – Parental Responsibility The second major prong of Lieberman’s plan involves parents. “We also have to demand more parental responsibility,” he argues. He goes on to say that:

“Parents have the first duty to protect their kids and are usually the last line of defense. Now, given the omnipresence of the Internet and the unique challenges that presents, parents need to be more vigilant than ever. It’s no longer enough to keep the computer in the family room when most parents have no idea what chat acronyms mean. Parents need to tell their kids not to share personal information and to tell them when they receive online sexual solicitation.”

Again, it impossible to argue with any of this (although I still think parents can be the FIRST line of defense, not the last as Lieberman suggests). And, as I mentioned above, I believe that household media rules are an essential part–probably the single most important part–of the parental controls and online child protection mix of efforts. In my upcoming study on these issues, I document the many ways that parents can devise practical household rules and create what I refer to as a good “media diet” for their families. Parents need to take a “food pyramid” approach to media consumption: Teach kids the importance of a balanced (media) diet and also teach them what types of things that should probably be avoiding altogether. But just as government doesn’t enforce the food pyramid through regulation, nor should it enforce the media food pyramid idea through force of law. Unfortunately, however, that’s exactly what Sen. Lieberman next proposes.

3 – Government Regulation The third and final component of Sen. Lieberman’s plan involves government regulation. “[P]arents can’t do it all on their own,” he argues. “There are some things that the government can and must do to help make this hard job a little easier. And there are some things that only the government can do prevent crime and keep kids safe.”

In particular, Lieberman used the occasion to highlight the hodge-podge of regulatory proposals contained in a Senate bill (S. 1507) he has co-sponsored called “the Internet Safety and Child Protection Act.” This bill would:

• Require adult websites to conduct online ID checks using age-verification software.
• Tax online pornography to fund an Internet Safety and Child Protection Trust Fund.
• Create a cyber tip line in the Office of Juvenile Justice
• Establish Internet Crimes Against Children Task Forces in each state
• Fund research into new filtering technologies
• And support education programs on child Internet safety.

Let me be clear: I do not oppose all government efforts on this front. In fact, I can support things like federal educations programs on child Internet safety, a federal “cyber tip” line (although such a thing already exists at NCMEC), Internet safety task forces, and perhaps even some federal funding for filters (although I’m very concerned about what sort of strings might be attached to the funding of filters and I’m sure that some of my other friends in the First Amendment community would be absolutely apoplectic about this proposal).

But ideas like taxing online pornography and age-verification mandates raise a whole host of other issues. Adult entertainment providers are already taxed as businesses, so what Lieberman is essentially proposing is a tax on a specific form of content or speech. That opens a big can of First Amendment worms and, even if it somehow passed constitutional muster when tested in the courts, it would be completely ineffective at stopping offshore sites from providing the same material tax-free.

Likewise, age-verification raises serious privacy concerns for adults and can be easily evaded or duped. And the legal issues aren’t settled here either. A legal battle continues to rage in the courts over the Child Online Protection Act of 1998 (COPA), which sought to block underage access to websites. COPA was held unconstitutional and blocked by the courts (although the Department of Justice is apparently still working hard to enforce it).

Thus, the regulatory solutions Lieberman endorses are only likely to create more legal wrangling in the courts and even if they went into effect they would be unable to deal with the global scope of the Internet and digital content.

CONCLUSION

Sen. Lieberman wants to protect kids. So do I. So does everybody else I know. But how we go about protecting them is important because, in a diverse culture like ours, different families will have different values and tolerance levels when it comes to speech and media content. Sen. Lieberman clearly has his values. My wife and I have our own, and I have a feeling they are quite different than the Senator’s. And I bet yours are different, too. And that’s OK. In fact, it’s a wonderful part of our pluralistic society.

I agree with Sen. Lieberman when he says in his address that “information is power.” Unlike him, however, I am far more wary of giving government too much power over information. I do, however, wholeheartedly agree with him that empowering parents (and kids!) with more information, education and tools to make choices in line with their values and preferences is an unambiguously good thing. Because at the end of the day I would hope we could all agree that Uncle Sam makes a lousy surrogate parent for a diverse nation of diverse families with diverse values.

I’ve just released a new paper entitled “Fact and Fiction in the Debate over Video Game Regulation.” At the state and local level, over 75 measures have been proposed that would regulate the electronic gaming sector in same fashion. More importantly, another new federal bill was introduced recently that would establish a federal enforcement regime for video games sales and require ongoing regulatory scrutiny of industry practices. S. 2126, the “Family Entertainment Protection Act” (FEPA), was introduced last December by Senators Hillary Clinton (D-NY), Joe Lieberman (D-CT), and Evan Bayh (D-IN) to limit the exposure of children to violent video games.

In my essay, I address several of the most common myths or misperceptions that are driving this push to regulate the electronic gaming sector. My general conclusions are as follows:

>> The industry’s ratings system is the most sophisticated, descriptive, and effective ratings system ever devised by any major media sector in America.

>> The vast majority of video games sold each year do not contain intense violence or sexual themes.

>> Just as every state law attempting to regulate video games so far has been struck down as unconstitutional, so too will the FEPA.

>> The FEPA could derail the industry’s voluntary ratings system and necessitate the adoption of a federally mandated regulatory regime / ratings system.

>> No correlation between video games and aggressive behavior has been proven. Moreover, almost every social / cultural indicator of importance has been improving in recent years and decades even as media exposure and video game use among youth has increased.

>> Video games might have some beneficial effects–especially of a cathartic nature–that critics often overlook. And, contrary to what some critics claim, violent themes and images have been part of literature and media for centuries.

I encourage you to read the entire paper for more details. It can be found online here: http://www.pff.org/issues-pubs/pops/pop13.7videogames.pdf