What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]
by Adam Thierer & Berin Szoka
The Progress & Freedom Foundation, Progress on Point No. 16.19
Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:
- People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
- All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.
While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.
That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families. Continue reading →
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: Continue reading →
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.
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As Berin mentioned last week, we have a new paper out on proposals to expand the Children’s Online Privacy Protection Act (COPPA) of 1998. We generically refer to those COPPA-expansion efforts as “COPPA 2.0.” Hence, the title of our paper: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.” To recap what Berin already noted, in the name of improving online child safety, some legislators and state attorneys general (AGs) are advocating the expansion of COPPA’s “verifiable parental consent” model of age verification before certain sites or services may collect, or enable the sharing of, personal information for children.
Unlike “COPPA 1.0,” however, which only applied to children under the age of 13, “COPPA 2.0″ would apply to all minors up to age 17. Moreover, the range of sites covered by the new law would generally be expanded to include just about any site or service with social networking functionality.
Since Berin has already summarized our general concerns with efforts to expand COPPA’s “verifiable parental consent” online age verification system to cover more online users and sites, I thought I would focus here on what I believe will be the most controversial (and important) part of our paper — our discussion about how COPPA 2.0 affects the speech rights of both adults and adolescents.
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Online child safety — especially the fear of predators lurking on social networking sites (SNS) — continues to spur calls by state and federal lawmakers for regulation. At first, some federal lawmakers advocated outright bans on SNS in schools and libraries via the Deleting Online Predators Act (DOPA). Meanwhile, state and local lawmakers — specifically state Attorneys General (AGs) — have been even more vociferous in their calls for regulation in the form of mandatory age verification for social networking sites, which would cover a broad swath of online sites and activities according to their definitions of SNS. But the question that ultimately gets lost in this debate is: Just how much risk do social networking sites really pose for teens? Which risks are real and which are overblown? And what’s the best way to deal with the risks that we find to be legitimate?
Nancy Willard devotes her life to answering those questions. Willard is one of America’s leading experts on online safety and risk prevention. She runs the Center for Safe and Responsible Internet Use and she is the author of two outstanding books, Cyberbullying and Cyberthreats and Cyber-Safe Kids, Cyber-Savvy Teens. In my opinion, Willard’s general approach to online child safety is the most enlightened, level-headed, and likely to be effective. That’s because Willard focuses on putting fears in perspective, identifying the actual risks that kids face online, and devising sensible strategies to deal with risks and problems as they are discovered. Her approach is holistic and built upon sound data, targeted risk-identification strategies, and time-tested education and mentoring methods. For my money, it’s the most sensible approach to online safety issues. In fact, when other parents ask me for “just one thing” to read on the topic, I usually recommend Willard’s work — especially her amazing book Cyber-Safe Kids, Cyber-Savvy Teens. And her background in early childhood education, special education for “at risk” children with emotional and behavior difficulties, as well as experience in computer law, means she is uniquely suited to be analyzing these issues. In sum, this is woman we should all be closely listening to on these issues.
Recently, Willard has been responding to criticisms that state AGs have leveled against the Internet Safety Technical Task Force (ISTTF) and its final report. [Disclaimer: I was a member of the ISTTF.] I’ve already outlined the ISTTF’s work at length here, but the three key takeaways from the report were that:
- the risk of predation on social network sites has been over-stated; the data suggest that cyber-bullying is the bigger problem on SNS;
- there is no silver-bullet technical solution to online child safety concerns, and mandatory age verification, in particular, would not make kids safer online but could even create bigger problems in the long-run;
- education and empowerment are the real keys to keeping kids safer online.
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I’ve spent a lot of time in recent years trying to debunk various myths about online child safety or at least put those risks into perspective. Too often, press reports and public policy initiatives are being driven by myths, irrational fears, or unjustified “moral panics.” Luckily, the New York Times reports that there’s another study out this week that helps us see things in a more level-headed light. This new MacArthur Foundation report is entitled Living and Learning with New Media: Summary of Findings from the Digital Youth Project. This white paper is a summary of three years of research on kids’ informal learning with digital media. The survey incorporates the insights from 800 youth and young adults and over 5000 hours of online observations. The information will eventually be contained in a book from MIT Press (“Hanging Out, Messing Around, Geeking Out: Living and Learning with New Media.”)
From the summary of the study on the MacArthur website:
“It might surprise parents to learn that it is not a waste of time for their teens to hang out online,” said Mizuko Ito, University of California, Irvine researcher and the report’s lead author. “There are myths about kids spending time online – that it is dangerous or making them lazy. But we found that spending time online is essential for young people to pick up the social and technical skills they need to be competent citizens in the digital age.”
Importantly, regarding the concerns many parents and policymakers have about online predation, Ms. Ito told the New York Times that, “Those concerns about predators and stranger danger have been overblown.” “There’s been some confusion about what kids are actually doing online. Mostly, they’re socializing with their friends, people they’ve met at school or camp or sports.”
In the report, according to the summary, the researchers “identified two distinctive categories of teen engagement with digital media: friendship-driven and interest-driven. While friendship-driven participation centered on “hanging out” with existing friends, interest-driven participation involved accessing online information and communities that may not be present in the local peer group.” The specific findings of the study are as follows:
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This week, I have been up at Harvard University participating in another meeting of the Internet Safety Technical Task Force (ISTTF), of which I am a member. The ISTTF was organized earlier this year pursuant to an agreement between 49 state attorneys general (AGs) and social networking giant MySpace.com. A group of experts from academia, non-profit organizations, and industry were appointed to the Task Force, which is charged with evaluating the market for online child safety tools and methods and issuing a report on the matter to the AGs at the end of this year. ISTTF members have been meeting privately and publicly in both Cambridge, MA and Washington, D.C. The Task Force has been very ably chaired by John Palfrey, co-director of Harvard’s Berkman Center for Internet & Society.
Although the ISTTF is looking at a wide variety of tools and methods associated with online child protection (ex: filters, monitoring tools, educational campaigns, etc.), many of the AGs who crafted the agreement with MySpace that led to the Task Force’s formation have made it clear that they are most interested in having the ISTTF evaluate age verification / online verification technologies. In fact, at the start of this week’s session at Harvard Law School, AGs Martha Coakely of Massachusetts and Richard Blumenthal of Connecticut both spoke and made it abundantly clear they expect the Task Force to develop age and identify-verification tools for social networking sites (SNS). AG Blumenthal said we need to deal with “the dangers of anonymity” and repeated his standard line about online age verification: “If we can put a man on the moon, we can make the Internet safe.” [Of course, putting a man on the moon took hundreds of billions of dollars and a decade to accomplish, but never mind that fact! Moreover, one could also argue that if we can put a man on the moon we can cure hunger, AIDS, and the common cold, but some things are obviously easier said than done. Finally, putting a man on the moon didn't require all Americans or their kids to give up their anonymity or privacy rights in order to accomplish the feat!]
On many occasions here before, I have outlined various questions and reservations about proposals to mandate online age verification. Last year, I also published a lengthy white paper on the issue and hosted a lively debate on Capitol Hill [transcript here] about this. I also have discussed age verification in my book on parental controls and online child safety. [Braden Cox also talked about his experiences up at Harvard this week here, and CNet's Chris Soghoian had a brutal assessment of this week's proposals on his "Surveillance State" blog.]
In this essay, I will discuss the new fault lines in the debate over online age verification and outline where I think we are heading next on this front. I will argue:
- There is now widespread understanding that it is extraordinarily difficult to verify the ages and identities of minors online using the methods we typically use to verify adults. Because of this, age verification proponents are increasingly proposing two alternative models of verifying kids before they go online or visit SNS…
- First, for those who continue to believe that we must do whatever we can to verify kids themselves, schools and school records are increasingly being viewed as the primary mechanism to facilitate that. This raises two serious questions: Do we want schools to serve as DMVs for our children? And, do we want more school records or information about our kids being accessed or put online?
- Second, for those who are uncomfortable with the idea of verifying kids or using schools, or school records, to accomplish that task, parental permission-based forms of authentication are becoming the preferred regulatory approach. Under this scheme, which might build upon the regulatory model found in the Children’s Online Privacy Protection Act of 1998 (COPPA), parents or guardians would be verified somehow and then would vouch for their children before they were allowed on a SNS, however defined. But how do we establish a clear link between parents and kids? And will parents be willing to surrender a great deal more information (about themselves and their kids) before their kids can go online? And, is it sensible to use a law that was meant to protect the privacy and personal information of children to potentially gather a great deal more information about them, and their parents?
- It remains very unclear how either of those two verification methods would make children safer online. Indeed, that could actually make kids less safe by compromising their personal information and creating a false sense of security online for them and their parents.
- It is highly unlikely the Internet Safety Technical Task Force will be able to reach consensus on this complicated, controversial issue. A small camp will likely flock to the sort of proposals mentioned above. Another, larger camp (including me) will flock to education-based approaches to child safety as well increased reliance on other parental empowerment tools and strategies, industry self-regulatory efforts, social norms, and better intervention strategies for troubled youth. But the age verification debate will go on and, as was the case over the past two years, the legal battleground will be state capitals across America, with AGs likely pushing for age verification mandates regardless of what the Task Force concludes.
Continue reading if you are interested in the details.
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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.
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