A few days ago I posted an open letter to New York Gov. David Patterson about a measure that recently passed through the New York legislature and was awaiting his signature. The bill proposes a new regulatory regime for video games that would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry. Unfortunately—but quite unsurprisingly—Gov. Patterson signed the bill last night. And so I am certain that another legal battle will ensue regarding the constitutionality of the measure, and it will likely be struck down like every other measure on this front because it violates the First Amendment. Regardless, let’s talk a little more about what animates this specific legislative effort, because I think it is very important and foreshadows the heated debate to come over video games and all media in coming years.
The New York measure is notable in that, unlike most of the other state or local measures that had been stuck down in recent years that proposed penalties for the sale of games to youngsters which were labeled by the ESRB to be intended for an older audience, it simply proposed more “oversight” of the ratings process and parental control technologies by the state. Specifically, it mandated that all games be rated and that all consoles contain screening controls. The response to that proposal has generally been: “So what?” After all, all video games are rated already and all game consoles contain parental controls. The measure also mandated a 16-member oversight board to monitor the industry and this process. Again, that proposal was not regarded by many as a serious threat to the video games or free speech.
But I fear that many are missing the big picture here. The New York bill is actually far more important that many people suspect because of what it foreshadows: A day when politicians will claim that we can make rating systems more “scientific” by putting public health bureaucrats or university social scientists in charge of them. Indeed, last night on Bloomberg TV, this became the focus of a debate between me and Dr. Michael Rich, Director of the Center for Media and Child Health at the Harvard Medical School. After you watch the clip, I’ll have much more to say about this issue down below the fold.
http://eplayer.clipsyndicate.com/cs_api/get_swf/2/&csEnv=p&wpid=0&va_id=649150
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To: Hon. David Patterson, Governor, State of New York
From: Adam Thierer, life-long gamer and Senior Fellow at the Progress & Freedom Foundation
Date: July 17, 2008
Re: That video game bill (A. 11717/ S. 6401) you have been asked to sign
Dear Gov. Patterson:
I write today to ask a few questions about a measure that is currently sitting on your desk awaiting your signature. The measure (A. 11717/ S. 6401), which recently passed through the New York legislature, proposes a new regulatory regime for video games. It would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry.
As a life-long gamer—and now the parent of two young gamers—this is a subject I care deeply about. I also come at this topic from an academic perspective as someone who analyzes the intersection of child safety concerns and free speech issues surrounding various types of media and communications technologies. I am the author of a frequently-updated book,
Parental Controls & Online Child Safety: A Survey of Tools & Methods, which provides a comprehensive look at the many tools and methods on the market today that can help parents deal with concerns about objectionable media content.
But mostly I write you today from the perspective of someone who just enjoys games. Actually, let me clarify that: I am utterly infatuated with video games. Gaming has been a life-long passion of mine and something I have enjoyed with friends and family since I owned my very first PONG and Atari 2600 systems in the 1970s. Since then, I have owned virtually every major video game console sold in the United States. Even today, as I approach 40 years of age, I find myself sitting down many nights to enjoy games with my son and daughter on the Xbox 360 and Sony PS3 consoles that we have in our home.
Like millions of other Americans, gaming is now fully integrated into the fabric of my life and the lives of my children. It has become one of the most enjoyable media experiences for my generation and the generation of kids that we are raising. And, although I am certain that the New York legislature had the best of intentions in mind when passing this bill, I believe I speak for a great number of those other American gamers when I say that the measure on your desk is somewhat of an insult to our intelligence. Let me explain by raising a few questions about this bill, which I will argue is unnecessary, unworkable, and unconstitutional:
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Time Warner, Verizon, and Sprint will restrict access to tens of thousands of Newsgroups in order to stem
illegal child pornography as part of an agreement with New York State Attorney General Andrew Cuomo announced yesterday. Although ISPs have no obligation to provide newsgroup access, and there are plenty of alternative methods for users to browse Usenet discussion groups, the agreement raises serious Constitutional questions.
The agreement is supposedly “voluntary,” but this doesn’t necessarily resolve all First Amendment concerns. Hans Bader, CEI’s Counsel for Special Projects, posted a good overview on the Constitutional implications of the New York announcement over at OpenMarket.org:
“In truth, the settlement blocking access to newsgroups is not really “voluntary.” It’s the coercive result of threats of litigation from the New York Attorney General’s office. Supposedly “voluntary” settlements can constitute government regulation that violates the constitution. The Supreme Court has said that even a State’s “contractual condition” is subject to constitutional scrutiny (See South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 87, 97 n.10 (1984)), and federal appeals courts have observed that the fact that a state official and a business “have entered into an agreement does not necessarily insulate it from scrutiny under” the Constitution. (See Automated Salvage Transport, Inc. v. Wheelabrator Ent’l Sys. Inc., 155 F.3d 59, 78 (2d Cir. 1998)). And a “voluntary agreement” incorporated into a consent decree can constitute state regulation that is preempted by federal law, as the Supreme Court observed in 1981. (Ridgway v. Ridgway, 454 U.S. 46, 47, 53 (1981)).
This isn’t the first time Andrew Cuomo has pressured firms to engage in online censorship. Back in October 2007, I discussed how Facebook “voluntarily” agreed to censor user content to reduce the chances that minors would encounter obscene images.
Mr. Cuomo seems awfully effective at persuading providers to curtail user speech–perhaps he made an offer the ISPs couldn’t refuse.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.