Today, the U.S. Department of Transportation released its eagerly-awaited “Federal Automated Vehicles Policy.” There’s a lot to like about the guidance document, beginning with the agency’s genuine embrace of the potential for highly automated vehicles (HAVs) to revolutionize this sector and save thousands of lives annually in the process.

It is important we get HAV policy right, the DOT notes, because, “35,092 people died on U.S. roadways in 2015 alone” and “94 percent of crashes can be tied to a human choice or error.” (p. 5) HAVs could help us reverse that trend and save thousands of lives and billions in economic costs annually. The agency also documents many other benefits associated with HAVs, such as increasing personal mobility, reducing traffic and pollution, and cutting infrastructure costs.

I will not attempt here to comment on every specific recommendation or guideline suggested in the new DOT guidance document. I could nit-pick about some of the specific recommended guidelines, but I think many of the guidelines are quite reasonable, whether they are related to safety, security, privacy, or state regulatory issues. Other issues need to be addressed and CEI’s Marc Scribner does a nice job documenting some of them is his response to the new guidelines.

Instead of discussing those specific issues today, I want to ask a more fundamental and far-reaching question which I have been writing about in recent papers and essays: Is this guidance or regulation? And what does the use of informal guidance mechanisms like these signal for the future of technological governance more generally?

When Is “Voluntary” Really Mandatory?

The surreal thing about DOT’s new driverless car guidance is how the agency repeatedly stresses it “is not mandatory” and that the guidelines are voluntary in nature but then — often in the same paragraph or sentence — the agency hints how it might convert those recommendations into regulations in the near future. Consider this paragraph on pg. 11 of the DOT’s new guidance document:

The Agency expects to pursue follow-on actions to this Guidance, such as performing additional research in areas such as benefits assessment, human factors, cybersecurity, performance metrics, objective testing, and others as they are identified in the future. As discussed, DOT further intends to hold public workshops and obtain public comment on this Guidance and the other elements of the Policy. This Guidance highlights important areas that manufacturers and other entities designing HAV systems should be considering and addressing as they design, test, and deploy HAVs. This Guidance is not mandatory. NHTSA may consider, in the future, proposing to make some elements of this Guidance mandatory and binding through future regulatory actions. This Guidance is not intended for States to codify as legal requirements for the development, design, manufacture, testing, and operation of automated vehicles. Additional next steps are outlined at the end of this Guidance. [emphasis added.]

The agency continues on to request that “manufacturers and other entities voluntarily provide reports regarding how the Guidance has been followed,” but then notes how “[t]his reporting process may be refined and made mandatory through a future rulemaking.” (p. 15)

And so it goes throughout the DOT’s new “guidance” document. With one breath the DOT suggests that everything is informal and voluntary; with the next it suggests that some form of regulation could be right around the proverbial corner.

Agency Threats Are the Future of Technological Governance

What’s going on here? In essence, DOT’s driverless car guidance is another example of how “soft law” and “agency threats” are becoming the dominant governance models for fast-paced emerging technology.

As noted by Tim Wu, a proponent of such regimes, these agency threats can include “warning letters, official speeches, interpretations, and private meetings with regulated parties.” “Soft law” simply refers to any sort of informal governance mechanism that agencies might seek to use to influence private decision-making or in this case the future course of technological innovation.

The problem with agency threats, as my former Mercatus Center colleague Jerry Brito pointed out in a 2014 law review article, is that they are fundamentally undemocratic and represent a betrayal of the rule of law. The use of “threat regimes,” Brito argued, “places undue power in the hands of regulators unconstrained by predictable procedures.” Such regimes breed uncertainty by leaving decisions up to the whim of regulators who will be unconstrained by administrative procedures, legal precedents, and strict timetables. “[B]ecause it has no limiting principle,” Brito concluded, the agency threats model “leaves the regulatory process without much meaning” and “would obviously be ripe for abuse.”

The danger exists that we are witnessing gradual mission creep as the DOT’s “guidance” process slowly moves from being a truly voluntary self-certification process to something more akin to a pre-market approval process. Every “informal” request that DOT makes — even when those requests are just presented in the form of vague questions — opens the door to greater technocratic meddling in the innovation process by federal bureaucrats.

Coping with the Pacing Problem

Why are agencies like the DOT adopting this new playbook? In a nutshell, it comes down to the realization on their part that the “pacing problem” is now an undeniable fact of life.

I discussed the pacing problem at length in my recent review of Wendell Wallach’s important new book, A Dangerous Master: How to Keep Technology from Slipping beyond Our Control. Wallach nicely defined the pacing problem as “the gap between the introduction of a new technology and the establishment of laws, regulations, and oversight mechanisms for shaping its safe development.” “There has always been a pacing problem,” Wallach noted, but like other philosophers, he believes that modern technological innovation is occurring at an unprecedented pace, making it harder than ever to “govern” it using traditional legal and regulatory mechanisms.

Which is exactly why the DOT and whole lot of other agencies are now defaulting to soft law and agencies threat models as their old regimes struggle to keep up with the pace of modern technological innovation. As the DOT put it in its new guidance document: “The speed with which HAVs are advancing, combined with the complexity and novelty of these innovations, threatens to outpace the Agency’s conventional regulatory processes and capabilities.” (p. 8)  More specifically, the agency notes that:

The remarkable speed with which increasingly complex HAVs are evolving challenges DOT to take new approaches that ensure these technologies are safely introduced (i.e., do not introduce significant new safety risks), provide safety benefits today, and achieve their full safety potential in the future. To meet this challenge, we must rapidly build our expertise and knowledge to keep pace with developments, expand our regulatory capability, and increase our speed of execution. (p. 6)

Rarely has any agency been quite so blunt about how it is racing to get ahead of the pacing problem before it completely loses control of the future course of technological innovation.

But the DOT is hardly alone in its increased reliance on soft law governance mechanisms. In fact, I’m in the early research stages of a new paper about what soft law and agency threat models mean for the future of emerging technology and its governance. In that paper, I hope to document how many different agencies (FAA, FDA, FTC, FCC, NTIA, & DOT among others) are using some variant of soft law model to informally regulate the growing universe of emerging technologies out there today (commercial drones, connected medical devices, the Internet of Things, 3D printing, immersive technology, the sharing economy, driverless cars, and more.)

If nothing else, I would like to devise a taxonomy of soft law/agency threat models and then discuss the upsides and downsides of those models. If anyone has recommendations for additional reading on this topic, please let me know. The best thing I have seen on the issue is a 2013 book of collected essays on Innovative Governance Models for Emerging Technologies, edited by Gary E. Marchant, Kenneth W. Abbott and Braden Allenby. I’m surprised more hasn’t been written about this in law reviews or political science journals.

What Does It Mean for Innovation? And Accountable Government?

So, what does all this mean for the future of driverless cars, autonomous systems, and other emerging technologies? I think it’s both good and bad news.

The good news — at least from the perspective of those of us who want to see innovators freed up to experiment more without prior restraint — is that the technological genie is increasingly out of the bottle. Technology regulators are at an impasse and they know it. Their old regulatory regimes are doomed to always be one step behind the action. Thus, a lot of technological innovation is going to be happening before any blessing has been given to engage in those experiments.

The bad news is that the regulatory regimes of the future will become almost hopelessly arbitrary in terms of their contours and enforcement ceiling. Basically, in our new world of soft law and agency threats, you can tear up the Administrative Procedures Act and throw it out the window.  When regulatory agencies act in the future, they will do so in a sort of extra-legal Twilight Zone, where things are not always as they seem. Agencies will increasingly act like nagging nannies, constantly pressuring innovators to behave themselves. And sometimes that nagging will work, and sometimes it will even improve consumer welfare at the margin! It will work sometimes precisely because government still wields a mighty big hammer and no innovator wants to be nailed to the ground in the courts, or the court of public opinion for that matter. Thus, many — not all, but many — of those innovators will go along with whatever agencies like DOT suggests as “best practices” even if those guidelines are horribly misguided or have no force of law whatsoever. And because agencies know that many (perhaps most) innovators will fall in line with whatever “best practices” or “codes of conduct” that they concoct, it will reinforce the legitimacy of this model and become the new method of imposing their will on current or emerging technology sectors.

Again, agency threats won’t always work because some innovators will continue to engage in rough forms of “technological civil disobedience” and just ignore a lot of these informal guidelines and agency threats. Agencies will push back and seek to make an example of specific innovators (especially the ones with deep pockets) in order to send a message to every other innovator out there that they better fall in line or else!

But what that “or else!” moment or action looks like remains completely unclear. The problem with soft law is that, by its very nature, it is completely open-ended and fundamentally arbitrary. It is really just “ non-law law.” That’s the “legal regime” that will “govern” the emerging technologies of the present and the future.

Isn’t Soft Law Better Than the Alternative?

Now, here’s the funny thing about this messy, arbitrary, unaccountable world of soft law and agency threats: It is probably a hell of lot better than the old world we used to live in!

The old analog era regulatory systems were very top-down and command-and-control in orientation. These traditional regimes were driven by the desire of regulators to enforce policy priorities by imposing prior restraints on innovation and then selectively passing out permission slips to get around those rules.

As I noted in my latest book, the problem with those traditional regulatory systems is that they “tend to be overly rigid, bureaucratic, inflexible, and slow to adapt to new realities. They focus on preemptive remedies that aim to predict the future, and future hypothetical problems that may not ever come about. Worse yet, administrative regulation generally preempts or prohibits the beneficial experiments that yield new and better ways of doing things.” (Permissionless Innovation, p. 120)

For all the reasons I outlined in my book and other papers on these topics, “permissionless innovation” remains the superior policy default compared to precautionary principle-based prior restraints. But I am not so naïve as to expect that permissionless innovation will prevail in the policy world all of the time. Moreover, I am not one of those technological determinists who goes around saying that technology is an unstoppable force that relentlessly drives history, regardless of what policymakers say. I am more of a soft determinist who believes that technology often can be a major driver of history, but not without a significant shaping from other social, cultural, economic, and political forces.

Thus, as much as I worry about the new “soft law/agency threats” regime being arbitrary, unaccountable, and innovation-threatening, I know that the ideal of permissionless innovation will only rarely be our default policy regime. But I also don’t think we are going back the old regulatory regimes of the past and we absolutely wouldn’t want to anyway in light of the deleterious impacts those regimes had on innovation in practice.

The best bet for those of us who care about the freedom to innovate is to make sure that these soft law governance mechanisms have some oversight from Congress (unlikely) and the Courts (more likely) when agencies push too far with informal agency threats. Better yet, we can hope that the pace of technological change continues to accelerate and pressures agencies to only intervene to address the most pressing problems and then largely leaves the rest of the field wide open for continued experimentation with new and better ways of doing things.

But make no doubt about it, as today’s DOT guidance document for driverless cars makes clear, “agency threats” will increasingly shape the future of emerging technologies whether we like it or not.

The FCC’s transaction reviews have received substantial scholarly criticism lately. The FCC has increasingly used its license transaction reviews as an opportunity to engage in ad hoc merger reviews that substitute for formal rulemaking. FCC transaction conditions since 2000 have ranged from requiring AOL-Time Warner to make future instant messaging services interoperable, to price controls for broadband for low-income families, to mandating merging parties to donate $1 million to public safety initiatives.

In the last few months alone,

• Randy May and Seth Cooper of the Free State Foundation wrote a piece that the transaction reviews contravene rule of law norms.
• T. Randolph Beard et al. at the Phoenix Center published a research paper about how the FCC’s informal bargaining during mergers has become much more active and politically motivated in recent years.
• Derek Bambauer, law professor at the University of Arizona, published a law review article that criticized the use of informal agency actions to pressure companies to act in certain ways. These secretive pressures “cloak what is in reality state action in the guise of private choice.”

This week, in the Harvard Journal of Law and Public Policy, my colleague Christopher Koopman and I added to this recent scholarship on the FCC’s controversial transaction reviews.

We echo the argument that the FCC merger policies undermine the rule of law. Firms have no idea which policies they’ll need to comply with to receive transaction approval. We also note that the FCC is motivated to shift from formal regulation, which is time consuming and subject to judicial review, to “regulation by transaction,” which has fewer restraints on agency action. The FCC and the courts have put few meaningful limits on what can be coerced from merging firms. Many concessions from merging firms are policies that the FCC is simply unwilling to accomplish via formal rulemaking or, sometimes, is outright prohibited by law from regulating. Since a firm’s concessions in this coercive process are nominally voluntary, they typically can’t sue.

We point out, further, that the FCC has a potentially damaging legal issue on its hands. Since the agency is now extracting concessions related to content distribution and TV and radio programming, its transaction review authority may be presumptively unconstitutional and subject to facial First Amendment challenges. That means many parties can challenge the law, not simply the ones burdened by conditions (who fear FCC retaliation).

Content-neutral licensing laws, like the FCC’s transaction review authority, are presumptively unconstitutional when there’s a risk  that public officials will intimidate speakers about content. We cite for this proposition the Supreme Court’s decision in City of Lakewood v. Plain Dealer Publishing Co., a 1988 case striking down as unconstitutional a city requirement that newspapers seek a public interest determination from public officials before installing newsracks. As the Court said, for rules with a “nexus to expression,”

a facial [First Amendment] challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.

The public officials in City of Lakewood hadn’t even pressured newspapers about content; the mere potential for intimidation was a constitutional violation. If the agency’s authority was challenged, the FCC would be in worse shape than the public officials in City of Lakewood. Unlike those local officials, the FCC has used licensing to pressure firms to add certain types of programming. So the law certainly has the nexus to expression that the Supreme Court requires for a facial challenge.

We highlight, for instance, the many concessions related to content in the 2010 Comcast-NBCU merger. Comcast-NBCU conceded to create children’s, public interest, and Spanish-language TV and video-on-demand programming, relinquish editorial control over Hulu programming, and spend millions of dollars on digital literacy and FDA nutritional TV public service announcements. In that merger and many others, the FCC conditioned approval on compliance with open access and net neutrality policies. As I and others have pointed out, net neutrality rules also threaten free speech rights.

We conclude with some policy recommendations to avoid a constitutional problem for the FCC, including congressional repeal of the FCC’s transaction review authority. We point out that the FCC actually has Clayton Act authority to review common carrier mergers, but the FCC refuses to use it, likely because the agency views traditional competition analysis as too constraining. In our view, unless or until the FCC promulgates predictable guidelines about what is relevant in a transaction review and stays away from content distribution issues, the FCC’s transaction review authority is vulnerable to legal challenge.

This morning I spoke at a U.S. Chamber of Commerce event on “Responsible Data Uses: Benefits to Consumers, Businesses and the Economy.” In preparing for the event, I dusted off some old working notes for speeches I had delivered at other events about privacy policy and “big data” and expanded them a bit to account for recent policy developments. For what it’s worth, I figured I would post those notes here.  (I apologize about the informality but I never write out my speeches, I just work from bullet points.)

—————–

Benefits of “Big Data”

• “big data” has numerous micro- and macroeconomic benefits
• Micro benefits:
  • data aggregation of all varieties has powerful social and economic benefits that are sometimes invisible to consumers and citizens but are nonetheless enjoyed by them
  • big data can positively impact the 3 key micro variables – quality, quantity & price – and benefit consumers / citizens in the process

• Macro benefits:
  • Data is the lifeblood of the information economy and it has an increasing bearing on the global competitiveness of companies and countries
  • In the old days, when we talked about comparative and competitive advantage, the focus was on natural resources, labor, and capital.
  • Today, we increasingly talk about another variable: information
  • Data is increasing one of the most important resources that can benefit economic growth, innovation, and the competitive advantage of firms and nations.

Privacy Concerns

• of course, “big data” also raises big privacy concerns for many groups and individuals
• this has led to calls for regulatory action and virtually all levels of government – federal, state, local, and international – are considering expanded controls on data collection and aggregation

America’s Privacy Regime

• I want to address what I regard as the most powerful myth that governs this debate
• namely, I speak of the myth that America doesn’t have a privacy framework that can balance these goals and concerns about “big data” and data collection in general
• we hear various advocates say that America needs a new privacy regime, and many of these advocates suggest that that regime should more like Europe’s

Europe’s Regime

• first, what is that European regime?
  • a more preemptive top-down approach / data “directives” / stringent requirements on data use
  • basically, under the EU regime, privacy trumps almost all other considerations, regardless of cost or complexity.
  • It’s more of a “Mother, May I” regime in which innovation needs to be “permissioned”

• what’s wrong with European approach?
  • We can relate this back to the question of competitive advantage
  • The European approach leaves less room for innovative uses of data and ongoing marketplace experimentation
  • There’s also some evidence that this regime might influence industry structure and competitiveness as well as the quality and quantity of choices for the consumer
  • Anecdotally-speaking, we can ask ourselves this simple question: Can any of us name a global leader in the modern digital economy that was born in Europe?
  • I suppose there are a few, but I struggle to name them
  • Now, why is that?
  • It could be high taxes and the lack of healthy market for venture capital.
  • But it also must have something to do with regulatory structure that Europe has adopted.

America’s Current Advantages

• Regardless, here’s what we do know: America’s digital economy innovators and social media operators are household names across the globe. Our firms are the envy of the world
• Moreover, while many sectors of the U.S. economy are struggling, I bet if you stopped the average Joe in the street and asked them to name one sector of America’s economy that is currently thriving and an example of innovation that others should emulate, most of them would probably mention information technology and the digital economy.
• Again, many factors may contribute to our current success relative to Europe but certainly our “light-touch” legal and regulatory approach must have had some bearing on that outcome

America’s Privacy Regime

• So, what exactly is America’s privacy regime?
• Again, some say we don’t have one and that regulation is, therefore, needed
• I beg to differ
• America does have a privacy regime; it is one that is:
  • governed by a set of evolutionary norms,
  • ongoing online marketplace interactions and experiments, contractual negotiations,
  • public and press pressures,
  • self-regulatory systems,
  • educational efforts and user empowerment,
  • personal responsibility,
  • and targeted legal enforcement and the use of state torts when true harms can be demonstrated.

•   compared with Europe, our legal regime:
• More bottom-up enforcement
• Issue-specific / Sectoral approach to addressing
• Relies on common law / case law / torts
• States have role; often more stringent than fed law
• evolving industry Self-regulation

• That’s been the uniquely American approach to privacy protection and we should not abandon it lightly.

It’s the Same Regime We’ve Used to Address Online Safety

• Importantly, it’s largely the same approach we have taken in this country toward online speech and child safety matters.
• There, too, we have focused on what I call the “3-E” approach:
  • Education
  • Empowerment, and
  • Enforcement against particularly bad apples

• Thus, in both the online child safety space as well as the privacy policy space, we have made great strides in pushing both personal responsibility and corporate responsibility as the first line of defense, not the last.
• Now, it has always been true, and will always be the case, that “more can be done.”
• Consumers could do more: We need to constantly encourage consumers to take more care to protect the personal data they care most about and to take steps to safeguard that which they do not want collected in the first place
• Companies could do more: And we also need to constantly encourage companies who collect data to take greater steps to:
  • first consider asking permission to collect and use that data
  • second, to be transparent about what data they are collection and what they are using it for
  • and third, to ensure adequate safeguards are in place to guard against unauthorized use of that data

The Difference between the Traditional American Model & the Emerging “Co-Regulatory” Model

• in a sense, this vision tracks the Obama Administration’s proposed model for privacy and data collection
• but here’s the difference: the Obama Administration wants to force this process in a more heavy-handed way by involving various federal agencies in the day-to-day management of how all these decisions get made
• in essence, it’s a small but certain step toward the European model of “co-regulation”
  • government steers, industry rows
  • “multi-stakeholder process”
  • Everyone has a “seat at the table”
  • But we don’t need “a table” if the table is being set by government
  • there’s nothing wrong with truly voluntary “multi-stakeholder” processes, but when the government is the one setting the “seats at the table” and talking about enforcing the “codes” that the committee comes up with, it opens the door to a co-regulation model  that has some real dangers:
    • If every decision about how information is used or aggregated becomes the equivalent of a committee decision — with everyone “at the table” getting a vote or a veto – then it will almost certainly be the case that less innovation occurs
    • The process could lack traditional democratic accountability / due process if more of an “agency threats” model evolves out of this.  After all, if certain officials are in charge of who gets a “seat at the table” and also responsible for enforcing whatever is decided “at the table,” it raises the question of how much pressure they can bring to bear on the process. (File this under “regulation by raised eyebrow”).
    • Any way you cut it, regulation by committee (in this case, the “multistakeholder” process) could become the equivalent of a tax on innovation and have detrimental impacts on the quality and price of online services

Conclusion

• For these reasons, we should instead continue to rely on the uniquely American model of privacy policy that balances diverse goals and values in a more spontaneous, evolutionary, and voluntary way without incessant government oversight and intervention.
• Again, the traditional American model isn’t perfect and sometimes we will need targeted statutes, torts, and even FTC (Sec. 5) enforcement to handle the bad apples out there who cause the most serious problems in terms of privacy violations or data breeches.
• But that more targeted approach to enforcement, along with the education and empowerment-based approaches I have outlined, can adapt to new challenges in this space and the child safety space while also ensuring our global competitive advantage is not sacrificed in the process.
• To sum up: let’s not casually trade in the American model for Europe’s. America’s more flexible, evolutionary model of privacy protection has served us well so far and can adapt to balance competing needs without crushing our innovative information economy or America’s global competitiveness.

Additional Reading:

• my big Mercatus Center filing to the FTC last year on privacy and Do Not Track regulation
• my recent Forbes oped, “The Problem with Obama’s “Let’s Be More Like Europe” Privacy Plan“
• Initial Thoughts on FTC’s Final Privacy Report
• video & slides from Hill Briefing on Online Privacy Policy
• Isn’t “Do Not Track” Just a “Broadcast Flag” Mandate for Privacy?
• Privacy as an Information Control Regime: The Challenges Ahead
• Obama Admin’s “Let’s-Be-Europe” Approach to Privacy Will Undermine U.S. Competitiveness
• Lessons from the Gmail Privacy Scare of 2004
• When It Comes to Information Control, Everybody Has a Pet Issue & Everyone Will Be Disappointed
• And so the IP & Porn Wars Give Way to the Privacy & Cybersecurity Wars
• Book Review: Solove’s Understanding Privacy

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:

1. People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
2. 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.

I. The Elitism of Speech Regulation

First, consider how those two elitist beliefs identified above are on display when lawmakers or regulatory advocates make efforts to control speech or content.^[2] Calls to regulate free speech are often premised on the belief that something must be done to “protect The Children.”^[3] Personal and parental responsibility ^[4] are regarded as inadequate safeguards ^[5] since some parents will inevitably fall down on the job by not adequately shielding their children’s eyes and ears from potentially objectionable (or supposedly harmful) speech. Therefore, government must regulate content that is indecent, profane, excessively violent, and so on. The definition of those things is then left to unelected bureaucrats and judges to make on our behalf.

But it’s not just about “The Children.” Some regulatory advocates believe that even the choices made by consenting adults must be disregarded because some people fail to understand the supposedly destructive nature of the speech they are consuming. Government must act to protect people from making what some regulatory advocates regard as destructive or even immoral choices that could bring harm to them or their loved ones.

In sum, regulatory advocates are essentially saying that people cannot be trusted or left to their own devices and, therefore, government must intervene and establish a baseline “community standard” on behalf of the entire citizenry to tell them what‘s best for them.^[6] Even if those citizens have tools and information at their disposal to make sensible decisions about objectionable content, that’s not good enough because they might not do the job properly. Government must do it for them!

II. The Elitism of Privacy Regulation

This same mentality motivates calls for privacy regulations. Those who call for government interventions to “protect privacy” often claim that people too willingly surrender personal information about themselves and that they don’t understand the adverse consequences of those actions.^[7] Alternatively, regulatory advocates claim that advertising and marketing efforts are inherently “manipulative” and that people do not realize they are being duped into surrendering personal information or into buying products or services they supposedly don’t need.^[8] Of course, those regulatory advocates rarely pause to explain to us how it is that they were not also duped and manipulated by the same things—again revealing their deeply-rooted elitism! (As discussed below, this makes it clear how the psychological phenomenon of “third-person effect hypothesis” is driving much of this debate.)

“Protecting The Children” is also used as a rhetorical cover for regulation here, but not as often in debates over speech controls.^[9] Instead, regulatory advocates mostly focus on adults who are presumed not to know what is in their own best interest—necessitating paternalistic government intervention on their behalf.

III. Intellectual Schizophrenia on Both the Left & Right

What is particularly interesting about all this is the way these two issues expose a sort of intellectual schizophrenia at work on both the Left and Right of the political spectrum. Left-leaning policymakers and intellectuals typically decry censorship efforts (except where “commercial speech,” “hate speech” and “bias” are at issue), but are quick to rally around proposals to layer privacy regulations on the Internet. The opposite is often true of many on the Right of the political spectrum: They typically declare privacy regulations to be paternalistic and antithetical to free enterprise (or perhaps just erosive of efforts to legislate morality),^[10] but in the next breath advocate controls on content they find objectionable.

Few on either side stop to consider the relationship between speech and privacy. In fact, they are but two sides of the same coin. After all, what is your “right to privacy” but a right to stop me from observing you and speaking about you?^[11] “Protecting privacy,” therefore, typically means restricting speech rights in the process. Advocates of privacy regulation often insist that the use, processing and collection of information are “conduct” unprotected by the First Amendment, but in fact, the First Amendment broadly protects the gathering and distribution of information as part of the process of communication (“speech”).^[12] Similarly, attempts to “clean up” speech or “protect The Children,” often require regulations that would betray the privacy of adults by expanding the role of government, and impose serious burdens on businesses and markets—such as age verification mandates ^[13] or extensive data retention requirements.^[14]

IV. Common Tactics & Regulatory Mechanisms

The two movements also share common political tactics and regulatory approaches. Privacy advocates generally favor “opt-in” mandates as the federal “baseline standard” for any website collecting information about users, especially their browsing habits (regardless of whether the information is “personally identifiable”). In other words, the law would create a property right in such “personal information” (ironically, many advocates of this approach criticize or reject intellectual property.) In a similar vein, many advocates of speech controls push for mandatory parental control tools or restrictive default settings.^[15] That is, if government won’t censor speech outright, regulatory advocates want lawmakers to at least (1) require that media, computing and communications devices be shipped to market with parental controls embedded or included (as proposed in Australia and with China’s “Green Dam” filter),^[16] and possibly, (2) that such controls be defaulted to their most restrictive position—forcing users to opt-out of the controls later if they want to consume media rated above a certain threshold.

More sophisticated advocates of speech controls and privacy regulation will likely argue that their paternalism is less elitist or intrusive because they merely want to “nudge” the public into making “better” decisions. Economist Richard Thaler and legal scholar Cass Sunstein (director of President Obama’s Office of Information and Regulatory Affairs, responsible for analyzing most new federal regulations) popularized this approach with their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness. Based on behavioral economics studies, they argue that both government and private actors must inevitably make decisions about “choice architecture” and that, by setting defaults, incentives and rules smartly, “choice architects” can and should improve decision-making without blocking, fencing-off or significantly burdening choices.^[17]

In this regard, Sunstein and Thaler’s approach parallels the work of Lawrence Lessig, one of the most influential Internet policy thinkers. Lessig has argued that the “architecture” of “code” (how software is written) “regulates” all online activities and requires government oversight and intervention to keep in check. Otherwise, he warned ominously a decade ago, “Left to itself, cyberspace will become a perfect tool of control.”^[18] Lessig’s hyper-pessimistic predictions have proven unwarranted, however. Far from fostering a world of “perfect control,” code and cyberspace have proven remarkably difficult to regulate, but nonetheless has generally benefited consumers and citizens without centralized direction.^[19] Still, Lessig, Sunstein, and others of this ilk persist in their advocacy of “nudges” of many varieties to impose their will on cyberspace through mandates from above.

But while it might be possible to define “better decisions” and argue that poor choice architecture leads people to choose things they clearly don’t want in contexts like investment decisions and mortgages, how can elites know what other people really want in highly subjective contexts like privacy and speech? Should they rely on opinion polls—the highly subjective results of which depend heavily on “choice architecture” of question-crafting—to guess what the right default should be?^[20] Was the Chinese proposal to mandate deployment of “Green Dam” just a harmless “nudge” because users weren’t barred from uninstalling the filtering software that must accompany their computers (i.e., “opting-out”)? The problem becomes even more difficult where trade-offs among competing values are inevitable. For example, data collection about Internet users raises privacy concerns for some but benefits all, creating more funding for “free” content (i.e., speech) and services users prefer by making more valuable the advertising that supports online publishers. In short, regulations of speech and privacy are likely to be pure paternalism, even when billed as “libertarian paternalism as Thaler and Sunstein label their approach.^[21]

What might be called “regulatory blackmail” is also a time-honored tradition among both advocates of speech controls and privacy regulation. When censorship advocates have previously been impeded by the First Amendment, they have worked behind the scenes with lawmakers or regulatory agencies to use indirect pressure and strong-arming tactics to extract “voluntary concessions” from companies or others.^[22] For example, in 2004, the FCC strong-armed radio giant Clear Channel into agreeing to a “voluntary” consent decree that involved taking Howard Stern off the air.^[23] Similarly, in 2008, XM and Sirius Satellite Radio finally agreed to set aside 4% of their system capacity for use by politically favored racial minorities (a kind of speech control) as a “voluntary condition” of their merger—after the FCC had sat on their application for nearly 16 months.^[24] This race-based preference would have been unconstitutional if the FCC had imposed it directly.^[25] While the FTC has been far less prone to such abuse and actually plays a key role in holding companies to their promises, its current Chairman, Jon Leibowitz, has hung the “regulatory sword of Damocles” over the heads of the online advertising industry, threatening them with a “day of reckoning” if he doesn’t get what he wants from industry self-regulatory efforts.”^[26] The sword could actually fall if the FTC turns self-regulation into the European model of “co-regulation,” where the government steers and industry simply rows.^[27]

V. The Crisis Mentality that Drives Regulation

Speech and privacy regulatory advocates share another trait in common: an affinity for the use of a crisis mentality as a method of spurring political action. In his 1995 book The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, political philosopher and economist Thomas Sowell formulated a model that he argued drives ideological crusades to expand government power over our lives and economy. “The great ideological crusades of the twentieth-century intellectuals have ranged across the most disparate fields,” noted Sowell. But what they all had in common, he argued, was “their moral exaltation of the anointed above others, who are to have their different views nullified and superseded by the views of the anointed, imposed via the power of government.”^[28] These government-expanding crusades shared several key elements, which Sowell identified as follows:

1. Assertion of a great danger to the whole society, a danger to which the masses of people are oblivious.
2. An urgent need for government action to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many, in response to the prescient conclusions of the few.
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes.

We see this model at work on a daily basis today with our government’s various efforts to reshape our economy, but the model is equally applicable to debates over speech controls and privacy regulation. In particular, the various “technopanics”^[29] we have witnessed in recent years fit this model. For example, consider how this model plays out in the debate over online social networking:

1. Assertion of a great danger to the whole society [online sexual predators], a danger to which the masses of people are oblivious.
2. An urgent need for government action [such as mandatory online age verification ^[30] or the Deleting Online Predators Act ^[31]] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [must stop kids and adults from being online together on same sites], in response to the prescient conclusions of the few [some state Attorneys General].^[32]
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [child safety researchers and others are told that their research is meaningless or offbase].^[33]

We also see this model in play in other debates, such as efforts to regulate “excessively violent” video games and television programming.^[34] And consider how this model plays out on the privacy front:

1. Assertion of a great danger to the whole society [amorphous privacy violations], a danger to which the masses of people are oblivious.
2. An urgent need for government action [“baseline federal privacy regulation”] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [anyone who shares information online], in response to the prescient conclusions of the few [a handful of privacy advocacy groups].
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [any suggestion that privacy concerns are being overblown and that most information-sharing is socially beneficial is dismissed out-of-hand].

Worse yet, regulatory intervention in these cases simply begets more and more intervention to correct the inevitable failures of, or dissatisfaction with, previous interventions.^[35] Thus, the “crisis” cycle never ends.

VI. Third-Person Effect Hypothesis as an Explanation

Something more profound than simple political elitism seems to be at work here, however. A phenomenon psychologists refer to as the “third-person effect hypothesis” can explain many calls for government intervention, especially in the media world.^[36] Simply stated, speech and privacy critics sometimes seem to only see and hear in media or communications what they want to see and hear—or what they don’t want to see or hear. When they encounter perspectives or preferences that are at odds with their own, they are more likely to be concerned about the impact of those things on others throughout society and come to believe that government must “do something” to correct those perspectives. Many people desire regulation because they think it will be good for others, not necessarily for themselves. The regulation they desire has a very specific purpose in mind: “re-tilting” speech or market behavior in their desired direction.

The third-person effect hypothesis was first formulated by W. Phillips Davison in a seminal 1983 article:

In its broadest formulation, this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.^[37]

Davison used this hypothesis to explain how media critics on both the Left and Right seemed to simultaneously find “bias” in the same content or reports when they couldn’t possibly both be correct. In reality, their own personal preferences were biasing their ability to fairly evaluate that content. Davison’s article prompted further research by many other psychologists, social scientists, and public opinion experts to test just how powerful this phenomenon was in explaining calls for censorship and other social phenomena.^[38] In these studies, third-person effect has been shown to be the primary explanation for why many people fear—or even want to ban—various types of speech or expression, including news,^[39] misogynistic rap lyrics,^[40] television violence,^[41] video games,^[42] and pornography.^[43] In each case, the subjects surveyed expressed strong misgivings about allowing others to see or hear too much of the speech or expression in question, but greatly discounted the impact of that speech on themselves. Such studies thus reveal the strong paternalistic instinct behind proposals to regulate speech. As Davison notes:

Insofar as faith and morals are concerned… it is difficult to find a censor who will admit to having been adversely affected by the information whose dissemination is to be prohibited. Even the censor’s friends are usually safe from the pollution. It is the general public that must be protected. Or else, it is youthful members of the general public, or those with impressionable minds.^[44]

It’s easy to see how this same phenomenon is at work in debates about privacy. Regulatory advocates imagine their preferences are “correct” (right for everyone) and that the masses are being duped by external forces beyond their control or comprehension, even though the advocates themselves are somehow immune from the brain-washing and privy to some higher truth that the hoi polloi simply cannot fathom. Again, this is Sowell’s “Vision of the Anointed” at work.

Consider the flare-up in 2004 over the introduction of Gmail, Google’s free email service. At a time when Yahoo! mail (then as now the leading webmail provider) offered customers less than 10 megabytes of email storage, Gmail offered an astounding gigabyte of storage that would grow over time (now over 7 GB). Rather than charging some users for more storage or special features, Google paid for the service by showing advertisements next to each email “contextually” targeted to keywords in that email—a far more profitable form of advertising than “dumb banner” ads previously used by other webmail providers.^[45] Self-appointed (or, to extend Sowell’s framework, “self-anointed”) privacy advocates howled that Google was going to “read users’ email,” and led a crusade to ban such algorithmic contextual targeting.^[46] Thierer responded to these critics by pointing out that the service was purely voluntary and noted:

you don’t speak for me and a lot of other people in this world who will be more than happy to cut this deal with Google. So do us a favor and don’t ask the government to shut down a service just because you don’t like it. Privacy is a subjective condition and your value preferences are not representative of everyone else’s values in our diverse nation. Stop trying to coercively force your values and choices on others. We can decide these things on our own, thank you very much.^[47]

Interestingly, however, the frenzy of hysterical indignation about Gmail was followed by a collective cyber-yawn: Users increasingly understood that algorithms, not humans, were doing the “reading” and that, if they didn’t like it, they didn’t have to use it. Today, nearly 150 million of people around the world use Gmail, and it has a steadily growing share of the webmail market. Even though cyber-consumers have embraced the service, some privacy advocates persist in their effort to shut down Gmail. They appear determined to stop at nothing to impose their will on others—the essence of political elitism—even if that means cutting off free email service for 150 million people!^[48]

A similar debate has played out more recently regarding targeted online advertising in general. Advertising on search engines is, much like Gmail, targeted “contextually” based on search terms entered by users and most advertising on other websites is based on the nature of content on a site or page. But certain data is collected about users as they browse to make that advertising more effective—by measuring its performance, reducing fraud, preventing over-exposure, etc. Some privacy advocates have insisted that industry self-regulation of such practices (even if enforced by the FTC) is inadequate and have called for preemptive regulation. They are even more offended by “behavioral advertising” which allows publishers whose content would have little value as the basis for contextually targeting advertising on their own sites to compete for more highly valued advertising by showing ads to users based on other sites they’ve visited. In both cases, data collection can increase the funding available to publishers to produce more of the content and services preferred by users, thus conferring an enormous indirect benefit on users, but also directly benefits users by increasing the relevance of the advertising they see.^[49] For some of the more extreme advocates of privacy regulation, however, there are no trade-offs, only absolutist “solutions:” To them, privacy is so obviously desirable that they feel at ease in deciding what’s best for everyone else. Such absolutists often respond with righteous indignation and conspiratorial fulmination when challenged to identify the harm against which they’re protecting consumers, while disdainfully dismissing all talk of the benefits of online advertising as self-serving industry propaganda.^[50]

VII. The Principled Alternative: Trust People & Empower Them

There is an alternative to this elitist mentality: freedom and personal responsibility. Individuals should be permitted to live a life of their own, even if they sometimes make mistakes or choices that are at odds with what elites think is best for them. ^[51]

Of course, the world isn’t perfect. In an ideal world, adults would be fully empowered to tailor speech and privacy decisions to their own values and preferences. Specifically, in an ideal world, adults (and parents) would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block the things they don’t like—objectionable content, annoying ads or the collection of data about them—while also finding the things they want.

Achieving that ideal is likely impossible, but the good news is that we are moving closer to it with each passing day. Citizens have more tools and methods at their disposal than ever before which enable them to make decisions for themselves and their families. And this is true for both parental controls ^[52] and privacy controls.^[53]

Of course, some speech and privacy elitists will argue that we can’t trust empowerment tools ( e.g., filters, rating systems, or other controls) that are created by companies or other affected parties. But rather than trying to enhance those tools and educate users about how to use them, these elitists skip right past user empowerment and channel their energies into regulations that would impose a top-down, one-size-fits all standard on all adults and families—or even into trying to craft the perfect “nudge” that will help users make what elites believe to be the “right” decisions. Of course, these tools can, and should, be improved. Those groups worried about speech/content and privacy issues should focus on how we might drive such protections from the bottom-up by empowering individuals instead of government bureaucrats. The goal in both cases should be a “let-a-thousand-flowers-bloom” approach, which offers diverse tools and strategies for our diverse citizenry.^[54] We need not accept “one-size-fits” all approaches, whether they be regulatory mandates or “nudges,” based on the presumption that elites know best.

Finally, it is vital not to lose sight of what’s ultimately at stake here. If regulatory approaches trump the empowerment agenda we have described, the future of a free and open Internet—indeed, as technology converges, the future of all media—is at risk.^[55] By imposing technological solutions from the top-down that can never keep pace with technological change, regulation necessarily forecloses freedom and innovation.^[56] By contrast, individual empowerment allows innovation to flourish. The better approach across the board is education, not regulation.^[57] Empowerment, not elitism, is the path forward. The digital elite should be leading this effort by developing and promoting technologies of empowerment, not crafting regulatory mandates to force their will upon us.^[58]

#

Adam Thierer is a Senior Fellow with The Progress & Freedom Foundation and the director of its Center for Digital Media Freedom. Berin Szoka  is a Senior Fellow with PFF and the Director of PFF’s Center for Internet Freedom.

[1] . William A. Henry, In Defense of Elitism (1995) at 2-3.

[2] . See Adam Thierer, The Progress & Freedom Foundation, Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, Progress Snapshot 4.4, Feb. 2008, www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html. Like American courts, we use the term “speech” as a broad catch-all for communications, including both actual speaking as well as other forms of transmitting, as well as receiving, information (“content”).

[3] . See generally Adam Thierer, Don’t Scapegoat Media, USA Today, Dec. 4, 2008, www.pff.org/issues-pubs/ps/2008/ps4.24scapegoatmedia.html; Marjorie Heins, Not in Front of the Children, “Indecency,” Censorship, and the Innocence of Youth (2001); Karen Sternheimer, It’s Not the Media: The Truth about Pop Culture’s Influence on Children (2003); Karen Sternheimer, Kids These Days: Facts and Fictions about Today’s Youth (2006).

[4] . See Adam Thierer, The Progress & Freedom Foundation, FCC Violence Report Concludes that Parenting Doesn’t Work, PFF Blog, Apr. 26, 2007, http://blog.pff.org/archives/2007/04/fcc_violence_re.html.

[5] . See Adam Thierer, The Progress & Freedom Foundation, Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing, PFF Blog, June 26, 2007, blog.pff.org/archives/2007/06/sen_rockefeller_1.html.

[6] . Adam Thierer, Conservatives, Porn, and “Community Standards,” The Technology Liberation Front, March 2, 2009, http://techliberation.com/2009/03/02/conservatives-porn-and-community-standards.

[7] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Online Advertising & User Privacy: Principles to Guide the Debate, Progress Snapshot 4.19, Sept. 2008, www.pff.org/issues-pubs/ps/2008/ps4.19onlinetargeting.html.

[8] . Jeff Chester, for decades the great gadfly of American advertising, has decried “the system … developed to track each and every one of us and our behavior for one-on-one marketing efforts” as “manipulative, intrusive and un-democratic.” Wendy Melillo, Q&A: Chester Writes the Book on Privacy, Dec. 11, 2007, www.gfem.org/node/227. For instance, Chester and other leading “privacy advocates” ridicule the idea of smart phones as a “liberating technology” and insist that,

Despite the glowing words about customization and personalized service, what marketers and advertisers are increasingly offering consumers is merely the illusion of free choice. Mobile operators offer their various options and services, not on an individual basis, but preconfigured according to segmented demographic profiles.

Center for Digital Democracy and U.S. Public Interest Research Group, Complaint and Request for Inquiry and Injunctive Relief Concerning Unfair and Deceptive Mobile Marketing Practices, Jan. 13, 2009 (emphasis original), www.democraticmedia.org/files/FTCmobile_complaint0109.pdf. See generally Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Targeted Online Advertising: What’s the Harm & Where Are We Heading?, Progress on Point 16.2, Feb. 2009, www.pff.org/issues-pubs/pops/2009/pop16.2targetonlinead.pdf.

[9] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech, Progress on Point 16.11, May 2009, www.pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf.

[10] . The Supreme Court has used a “right to privacy” to strike down laws against the use of contraception by married couples, Griswold v Connecticut, 381 U.S. 479 (1965), and abortion, Roe v. Wade, 410 U.S. 113 (1973).

[11] . Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000), available at www.pff.org/issues-pubs/pops/pop7.15freedomofspeech.pdf.

[12] . See , Amicus Brief for Association Of National Advertisers, Cato Institute, Coalition For Healthcare Communication, Pacific Legal Foundation And The Progress & Freedom Foundation In Support Of Appellants, IMS Health v. Sorrell, No. 09-1913-cv(L), 09-2056-cv(CON) (2nd Cir. 2009), available at www.pff.org/issues-pubs/filings/2009/071309-Brief-Amici-Curiae-ANA-et-al-Second-Circuit-(09-1913-cv).pdf.

[13] . See Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, March 2007, www.pff.org/issues-pubs/ pops/pop14.8ageverificationtranscript.pdf; www.pff.org/issues-pubs/pops/pop14.5ageverification.pdfAdam Thierer, The Progress & Freedom Foundation, Statement Regarding the Internet Safety Technical Task Force’s Final Report to the Attorneys General, Jan. 14, 2008, www.pff.org/issues-pubs/other/090114ISTTFthiererclosingstatement.pdf; Nancy Willard, Why Age and Identity Verification Will Not Work—And is a Really Bad Idea, Jan. 26, 2009, www.csriu.org/PDFs/digitalidnot.pdf; Jeff Schmidt, Online Child Safety: A Security Professional’s Take, The Guardian, Spring 2007, www.jschmidt.org/AgeVerification/Gardian_JSchmidt.pdf.

[14] . Adam Thierer, The Progress & Freedom Foundation, Mandatory Data Retention: How Much is Appropriate, PFF Blog, June 26, 2006, http://blog.pff.org/archives/2006/06/mandatory_data.html

[15] . Adam Thierer, The Progress & Freedom Foundation, The Perils of Mandatory Parental Controls and Restrictive Defaults, Progress on Point 14.4, Apr. 11, 2008, www.pff.org/issues-pubs/pops/2008/pop15.4defaultdanger.pdf.

[16] . Adam Thierer, China’s Green Dam Filter and the Threat of Rising Global Censorship, PFF Blog, June 17, 2009, http://blog.pff.org/archives/2009/06/chinas_green_dam_filter_and_threat_of_rising_globa.html

[17] . They define choice architecture as follows: “A structure designed by a choice architect(s) to improve the quality of decisions made by homo sapiens. Often invisible, choice architecture is the specific user-friendly shape of an organization’s policy or physical building when homo sapiens come into contact with it. Examples of choice architecture include a voter ballot, a procedure for handling well-meaning people who forget a deadline, or a skyscraper.” Nudge Glossary of Terms, www.nudges.org/glossary.cfm.

[18] . Lawrence Lessig, Code and Other Laws of Cyberspace (1999) at 6.

[19] . See Adam Thierer, Code, Pessimism, and the Illusion of “Perfect Control,” Cato Unbound, May 2009, www.cato-unbound.org/2009/05/08/adam-thierer/code-pessimism-and-the-illusion-of-perfect-control

[20] . See Solveig Singleton & Jim Harper, With A Grain of Salt: What Consumer Privacy Surveys Don’t Tell Us, 2001, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299930.

[21] . As Cato Institute scholar Will Wilkinson has argued, the book’s “agreeably banal doctrine of choice-preserving helpfulness” blurs the lines between paternalism and libertarianism, and thus “the thrust of the conceptual renovation behind the term libertarian paternalism is to empower, not limit, political elites.” Why Opting Out Is No “Third Way,” Reason, October 2008, www.reason.com/news/show/128916.html. See also Adam Thierer, The Progress & Freedom Foundation, Sunstein’s “Libertarian Paternalism” is Really Just Paternalism, PFF Blog, April 7, 2008, http://blog.pff.org/archives/2008/04/sunsteins_liber.html.

[22] . See Robert Corn-Revere, “’Voluntary’ Self-Regulation and the Triumph of Euphemism,” in Rationales & Rationalizations: Regulating the Electronic Media (Robert Corn-Revere, ed., 1997), at 183-208.

[23] . Telecom Policy Report, Commission Settles Indecency Charges, But At What Cost?, June 30, 2004, http://findarticles.com/p/articles/mi_m0PJR/is_25_2/ai_n6091525.

[24] . See Adam Thierer, XM-Sirius, Regulatory Blackmail, and Diversity, June 17, 2008, http://blog.pff.org/archives/2008/06/xmsirius_regula.html.

[25] . See Comments of W. Kenneth Ferree on Implementation of Sirius-XM Merger Condition, The Progress & Freedom Foundation, MB Docket No. 07-57, March 30, 2009, www.pff.org/issues-pubs/filings/2009/033009siriusXMconditionfiling.pdf.

[26] . See Szoka & Adam Thierer, supra note 8 at 3.

[27] . See id. at 2.

[28] . Thomas Sowell, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy (1995) at 5.

[29] . Alice Marwick, To Catch a Predator? The MySpace Moral Panic, First Monday, Vol. 13, No. 6-2, June 2008, www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2152/1966; Wade Roush, The Moral Panic over Social Networking Sites, Technology Review, Aug. 7, 2006, www.technologyreview.com/communications/17266; Anne Collier, Why Techopanics are Bad, Net Family News, April 23, 2009, www.netfamilynews.org/2009/04/why-technopanics-are-bad.html; Adam Thierer, Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics,’ Inside ALEC, July 2009, at 16-17, www.alec.org/am/pdf/Inside_July09.pdf; Adam Thierer, Progress & Freedom Foundation, Technopanics and the Great Social Networking Scare, PFF Blog, June 10, 2008, http://techliberation.com/2008/07/10/technopanics-and-the-great-social-networking-scare.

[30] . Supra note 13.

[31] . In the 109th Congress, former Rep. Michael Fitzpatrick (R-PA) introduced the Deleting Online Predators Act (DOPA), which proposed a ban on social networking sites in public schools and libraries. DOPA passed the House of Representatives shortly thereafter by a lopsided 410-15 vote, but failed to pass the Senate. The measure was reintroduced just a few weeks into the 110th Congress by Senator Ted Stevens (R-AK), the ranking minority member and former chairman of the Senate Commerce Committee. It was section 2 of a bill that Sen. Stevens sponsored titled the “Protecting Children in the 21st Century Act” (S. 49), but was later removed from the bill. See Declan McCullagh, Chat Rooms Could Face Expulsion, CNet News.com, July 28, 2006, http://news.com.com/2100-1028_3-6099414.html?part=rss&tag=6099414&subj=news.

[32] . See Emily Steel & Julia Angwin, MySpace Receives More Pressure to Limit Children’s Access to Site, Wall Street Journal, June 23, 2006, online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html; Susan Haigh, Conn. Bill Would Force MySpace Age Check, Yahoo News.com, March 7, 2007, www.msnbc.msn.com/id/17502005.

[33] . See, e.g., Letter of Henry McMaster, Attorney General, South Carolina to Attorney General Richard Blumenthal and Attorney General Roy Cooper Regarding Internet Safety Task Force (“ISTTF”) Report, January 14, 2009, www.scag.gov/newsroom/pdf/2009/internetsafetyreport.pdf

[34] . See Adam Thierer, The Progress & Freedom Foundation, Video Games and “Moral Panic,” PFF Blog, Jan. 23, 2009, http://blog.pff.org/archives/2009/01/video_games_and_moral_panic.html ; Adam Thierer, The Progress & Freedom Foundation, Fact and Fiction in the Debate over Video Game Regulation, Progress Snapshot 13.7, March 2006, www.pff.org/issues-pubs/pops/pop13.7videogames.pdf.

[35] . “All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which—from the point of view of their authors’ and advocates’ valuations—is less desirable than the previous state affairs which they were designed to alter. If one wants to correct their manifest unsuitableness and preposterousness by supplementing the first acts of intervention with more and more of such acts, one must go farther and farther until the market economy has been entirely destroyed and socialism has been substituted for it.” Ludwig von Mises, Human Action, at 858 (3rd ed. 1963) (1949).

[36] . See generally Adam Thierer, The Progress & Freedom Foundation, Media Myths: Making Sense of the Debate over Media Ownership (2005) at 119-123, www.pff.org/issues-pubs/books/050610mediamyths.pdf (Explaining how the third-person effect serves as a powerful explanation for the heated backlash that followed an FCC effort to moderately liberalize media ownership rules in 2003-04).

[37] . W. Phillips Davison, The Third-Person Effect in Communication, 47 Public Opinion Quarterly 1, Spring 1983, at 3.

[38] . For the best overview of third-person effect research, see Douglas M. McLeod, Benjamin H. Detenber, and William P. Eveland., Jr., Behind the Third-Person Effect: Differentiating Perceptual Processes for Self and Other, 51 Journal of Communication, Vol. 51, No. 4, 2001, at 678-695.

[39] . Vincent Price, David H. Tewksbury & Li-Ning Huang, Third-person Effects of News Coverage: Orientations Toward Media, Journalism & Mass Communications Quarterly, Vol. 74, at 525-540.

[40] . Douglas M. McLeod, William P. Eveland & Amy I. Nathanson, Support for Censorship of Violent and Misogynic Rap Lyrics: And Analysis of the Third-Person Effect, Communications Research, Vol. 24, 1997, at 153-174.

[41] . Hernando Rojas, Dhavan V. Shah, and Ronald J. Faber, For the Good of Others: Censorship and the Third-Person Effect, International Journal of Public Opinion Research, Vol. 8, 1996, at 163-186.

[42] . James D. Ivory, Addictive, But Not For Me: The Third-Person Effect and Electronic Game Players’ Views Toward the Medium’s Potential for Dependency and Addiction, University of North Carolina at Chapel Hill, School of Journalism and Mass Communication, Aug. 2002.

[43] . Albert C. Gunther, Overrating the X-rating: The Third-person Perception and Support for Censorship of Pornography, Journal of Communication, Vol. 45, No. 1, 1995, at 27-38

[44] . Supra note 37 at 14. Along these lines, a December 2004 Washington Post article documented the process by which the Parents Television Council, a vociferous censorship advocacy group, screens various television programming. One of the PTC screeners interviewed for the story talked about the societal dangers of various broadcast and cable programs she rates, but then also noted how much she personally enjoys HBO’s “The Sopranos” and “Sex and the City,” as well as ABC’s “Desperate Housewives.” Apparently, in her opinion, what’s good for the goose is not good for the gander! See Bob Thompson, Fighting Indecency, One Bleep at a Time, The Washington Post, Dec. 9, 2004, at C1, www.washingtonpost.com/wp-dyn/articles/A49907-2004Dec8.html.

[45] . See Chris Anderson, Free: The Future of a Radical Price at 112-118 (2009).

[46] . See Letter from Chris Jay Hoofnagle, Electronic Privacy Information Center, Beth Givens, Privacy Rights Clearinghouse, Pam Dixon, World Privacy Forum, to California Attorney General Lockyer, May 3, 2004, http://epic.org/privacy/gmail/agltr5.3.04.html.

[47] . See email from Adam Thierer to Declan McCullaugh on Politech Email discussion group, April 30, 2004, http://lists.jammed.com/politech/2004/04/0083.html (emphasis added).

[48] . See Complaint and Request for Injunction of the Electronic Privacy Information Center against Google, Inc., March 17, 2009, http://epic.org/privacy/cloudcomputing/google/ftc031709.pdf; see also Ryan Radia, Should the FTC Shut Down Gmail and Google Docs Because of an Already-Fixed Bug?, Technology Liberation Front Blog, March 18, 2009, http://techliberation.com/2009/03/18/should-the-ftc-shut-down-gmail-and-google-docs-because-of-an-already-fixed-bug/.

[49] . See Berin Szoka & Mark Adams, The Progress & Freedom Foundation, The Benefits of Online Advertising & the Costs of Regulation, PFF Working Paper, forthcoming.

[50] . Anti-advertising crusader Jeff Chester often resorts to questioning the motives of those who question whether his regulatory prescriptions would actually benefit consumers, see, e.g., http://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/#comment-11698840. See generally Jeff Chester, Digital Destiny: New Media and the Future of Democracy (2007).

[51] . “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily or mental and spiritual.” John Stuart Mill, On Liberty (Penguin Classics, 1859, 1986) at 72.

[52] . Adam Thierer, The Progress & Freedom Foundation, Parental Controls & Online Child Protection, Special Report, Version 4.0, Summer 2009, www.pff.org/parentalcontrols.

[53] . Adam Thierer, Berin Szoka & Adam Marcus, The Progress & Freedom Foundation, Privacy Solutions, PFF Blog, Ongoing Series, http://blog.pff.org/archives/ongoing_series/privacy_solutions.

[54] . Comments of Adam Thierer, The Progress & Freedom Foundation, In the Matter of Implementation of the Child Save Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming; MB Docket No. 09-26, April 16, 2009, www.pff.org/issues-pubs/filings/2009/041509-%5bFCC-FILING%5d-Adam-Thierer-PFF-re-FCC-Child-Safe-Viewing-Act-NOI-(MB-09-26).pdf.

[55] . See Adam Thierer, FCC v. Fox and the Future of the First Amendment in the Information Age, Engage, Feb. 20, 2009, www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf

[56] . “To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.” Friedrich von Hayek, “The Pretence of Knowledge,” in The Essence of Hayek, (Hoover Inst., 1984), at 276.

[57] . Adam Thierer, The Progress & Freedom Foundation, Two Sensible, Education-Based Legislative Approaches to Online Child safety, Progress Snapshot 3.10, Sept. 2007, www.pff.org/issues-pubs/ps/2007/ps3.10safetyeducationbills.pdf.

[58] . See, e.g., Berin Szoka, Google, CDT, Online Advertising & Preserving Persistent User Choice Across Ad Networks Through Plug-ins, Technology Liberation Front Blog, March 13, 2009, http://techliberation.com/2009/ 03/13/google-cdt-online-advertising-preserving-persistent-user-choice-across-ad-networks-through-plug-ins/.

I have just released a new PFF white paper on “The Perils of Mandatory Parental Controls and Restrictive Defaults.” It points out the dangers of government mandating that parental controls be defaulted to their most restrictive position. I’ve gone ahead and just pasted the entire text below (but without the footnotes):

During ongoing debates about parental controls, ratings, and online child safety, there have occasionally been rumblings about the possibility of requiring that media, computing and communications devices: (1) be shipped to market with parental controls embedded, and possibly, (2) those controls being defaulted to their most restrictive position, forcing users to opt out of the controls later if they wanted to consume media rated above a certain threshold.

Imagine, for example, a law requiring that every television, TV set-top box, and video game console be shipped with on-board screening technologies that were set to block any content rated above “G” for movies, “TV-Y” for television, or “E” for video games, which are the most restrictive rating designations for each type of media. Similarly, all personal computers or portable media devices sold to the public could be forced 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 media content or online services. In theory, this might help limit underage access to objectionable media or online content. Such a mandate might be viewed as less intrusive than direct government censorship and, therefore, less likely to run afoul of the constitution.

For these reasons, such a proposal would likely have great appeal among some policymakers, “family” groups, child safety advocates, and parents. But mandating parental controls and restrictive defaults is a dangerous and elitist idea that must be rejected because it will have many unintended consequences and not likely achieve the goal of better protecting our kids. You Can Lead a Horse to Water, But…

As I have pointed out in my book on Parental Controls and Online Child Protection: A Survey of Tools and Methods, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children. And this is true for all forms of media, from TV and music to video games and the Internet.

That being said, one of the enduring mysteries about parental controls is why many parents do not take advantage of the tools and options at their disposal. It’s the proverbial “you can lead a horse to water, but you can’t make him drink” problem. There are a few reasons why this may be the case.

First, many households may not take advantage of parental control tools because they instead rely on a variety of non-technical “household media rules.” In chapter 2 of my book, I identified four categories of household media rules that surveys show almost all parents use in some combination to control their children’s media consumption: (1) “where” rules; (2) “when and how much” rules; (3) “under what conditions” rules, and, (4) “what” rules.

Second, in many homes, technical controls and rating systems are viewed as unnecessary if the kids are below or above a certain age. Many parents of children under 4 or 5 years of age, for example, do not let their kids consume much media, or they at least have much tighter control over their children’s media consumption habits. And after kids reach their mid-teen years, many parents eschew technical controls because they either trust their kids, or better yet, they constantly talk to them about media content or their online experiences.

Of course, it could also be the case that some parents do not use technical controls or rating systems because they find them too confusing. That may be true to some extent, but it is important to note that these controls and rating systems are getting increasingly easy to use. Most parental control tools are just one or two clicks away on most TVs, gaming systems, or personal computers. And although there are different rating schemes for different forms of media, those rating systems share much in common and are all quite descriptive. Setting up parental controls is certainly no more difficult now that programming a personal video recorder or uploading digital photographs to the Internet.

Finally, it may be the case that some parents are simply not aware of the controls or ratings. This too, however, is increasingly unlikely. Survey data suggests a growing familiarity with most rating systems, although some more than others. And companies and non-profit organizations are increasingly offering more information and tutorials along with the parental control tools that are typically embedded, free-of-charge, in almost all modern media devices. In any event, the answer to low awareness issues is not mandatory defaults but, as I explain below, increased educational efforts.

Forcing the Issue

Still, for whatever reason, many parents are not using parental controls or rating systems and, at the same time, many feel or express some concerns about being able to manage media use by their children. Regardless of the culprit—and it could be a combination of all of the factors listed above—what more could be done to encourage these parents to use these technical controls and rating systems to limit children’s access to potentially objectionable content or communications? There are two general options.

Increased Education & Empowerment Options One way to increase parental comfort levels is through better education and awareness-building initiatives. As mentioned, many companies already offer detailed information and tutorials along with the parental control tools they offer, but more could always be done to promote awareness of the tools and how to use them. Many parents may feel media use in their homes is unmanageable because they are unaware of their options or unsure how to utilize the available tools.

One sensible first step is the inclusion of easy-to-understand instructions in all user manuals. “Tip sheets” could also be bundled along with the products, which provide a summary of how set up parental controls, or what relevant ratings meant. Most vendors already offer this and much more on their websites, but sometimes the URLs for those pages can be difficult to find. All media companies should consider placing clearly labeled links on their websites to guide visitors to parental controls, ratings information, or online safety tips. Finally, customer support hotlines—whether automated and human-based—could probably be improved and expanded.

Again, most companies are already moving in this direction today. It’s simply a smart business practice since many parents increasingly expect such services to be available. To the extent some companies aren’t keeping up, others—policymakers and child safety groups, in particular—are increasing putting pressure on them to provide such tools and assistance.

Mandated Controls & Maximum Defaults The second approach to encouraging more widespread use of parental controls and rating systems would involve the sort of legal mandates described above. Presumably, this would require a law or regulation that would: (1) spell out what sort of controls or filters would be embedded in every “media or computing device” and then, (2) determine how restrictive the default control settings would be before the hardware or software in question was marketed. In essence, this would be a mandatory “opt out” regime for parental controls / filters.

The first portion of the mandate is largely unnecessary; almost all major media devices marketed today already contain some sort of parental control tools. All TVs include V-chips, all set-top boxes include additional TV screening controls, and all video game consoles include blocking tools for both games and movies. With PCs, filters and monitoring tools have been made ubiquitously available by ISPs and non-profit entities for little or no charge, and operating systems like the new Windows Vista have included parental control tools. Importantly, almost all of these tools are free-of-charge. A variety of supplementary tools can be purchased online or from electronics retailers or computer stores. As a general matter, moreover, it is rarely sound public policy to have governments—rather than markets—select a particular technology or service as a mandatory feature. This risks locking in less effective technology and, in a worst case scenario, creating financial windfalls for well-connected technology vendors.

The real debate, then, comes down to the question of how effective those embedded controls are at meeting the interests of parents, and whether the embedded controls should have pre-established defaults set to the most restrictive setting available before they are shipped or downloaded. Of course, any company could voluntarily offer such an alternative today. It’s worth asking, therefore, why are no companies currently doing so?

Enforcement Hassles

There are many reasons why no media or communications companies are currently offering such maximally restrictive defaults when they ship their products to market, and those reasons are instructive when considering the wisdom of mandating that such defaulted controls be imposed by law.

To begin, there’s just not as much demand for this as some might think. Again, not all parents see the need to use parental controls or ratings, usually because they rely on household rules or tightly monitor or restrict access to media and communications devices.

Second, not all homes have children in them. According to the U.S. Census Bureau, almost 68 percent of American homes do not have any children under 18 years of age in residence. Obviously, there is less interest in parental control technologies in adult-only homes.

Third, because there are many adults who purchase media devices for their own use, it would be illogical to ship all devices or products to market with the controls set to the most restrictive setting. In fact, many consumers (even some who are parents themselves) would likely find it annoying, and perhaps even somewhat insulting, to be forced to opt out of such controls when they purchase new media hardware or software. And it’s likely that as soon as such devices or services hit the market, consumer complaint hotlines would light up like Christmas trees due to calls from irate users griping about what they imagine to be defective hardware or software.

Could companies offer multiple versions of their hardware or software products to solve this problem? For example, some set-top boxes, gaming consoles, and PCs could be sold and labeled as “Kid-Friendly” (or “locked”) while others are “Adult-Only” (or “unlocked”). It goes without saying that this would represent a major expense to many vendors (especially hardware vendors). It could also create potential confusion when the devices are labeled and marketed for sale. And what would the penalty be for a mislabeled device, or the accidental sale of such a device to a minor?

Perverse Incentives and Possible Evasion

It may be that there is a market for such “kid-friendly” devices or services. There are, for example, some wireless device and service options designed for kids that have limited features, or some toy (and toy-like) devices that have filters on by default, or only work with certain age-appropriate internet services. Many social networking services designed for kids have strict settings on by default. These may well be fantastic choices for some parents and kids. But whether that is the case seems to be best determined by the market.

Mandating such a dual-version approach, particularly for mass-market general use devices like PCs and Televisions, seems likely to create perverse incentives, both for consumers and for media and technology providers. If services and devices are sold with the highest levels of restrictions active by default, many parents might seek to avoid the annoyance associated with the “kid-friendly” versions of the device and just purchase “unlocked” hardware or software. And kids would likely get quickly to work cracking the defaults on the locked / kid-friendly versions of the hardware or software. (Witness what happened in Australia within a few days of the government releasing subsidized filtering software). The result would be some significant degree of consumer dissatisfaction with high-default services and, except perhaps in the case of households with very young children, dissatisfaction with locked/kid-friendly services and devices.

Among the possible consequences would be a perverse incentive for service providers and device makers to avoid investing in parental control tools. If setting controls to the highest default level is mandatory, but at the same time most consumers don’t prefer that default level, some consumer backlash is inevitable. And when consumers are unhappy about a service feature—but companies are not permitted to address that unhappiness by turning off the higher settings—a likely result could be for companies to weaken or even not offer parental controls altogether.

There are other issues associated with enforcing such a mandate. Regulators would need to grapple with the possibility of widespread evasion in terms of offshore sales and black market devices. For example, would it be illegal for an eBay vendor located in Hong Kong to sell a U.S.-based customer an “unlocked” PlayStation Portable without first verifying that they are indeed an adult? If so, that’s another layer of regulation that needs to be considered in terms of online age verification.

Of course, governments could forbid the development of “unlocked” devices or software and mandate that every media or computing device sent to market had mandatory defaults set for maximum restrictiveness. Even assuming such rules would not run afoul of international trade rules, many of the same problems would still develop, however. It will likely be difficult to stem the flow of “illegal devices” or software, and hackers would likely only work harder to defeat existing controls. And what about all the existing “unlocked” devices already on the market? This mandate might breathe new life into older devices and discourage some consumers from making the jump to new hardware and software that includes superior parental control tools.

A final enforcement question relates to how broadly “media devices” are defined for purposed of this mandate. TVs, set-top boxes, gaming consoles and PCs would all be covered, of course. But what about mobile phones, iPods, MP3 players, PlayStation Portables and GameBoys, and so on? If Congress or the Federal Communications Commission defines “media devices” broadly, it would bring an unprecedented array of consumer electronic devices and communications technologies under the purview of federal regulatory authorities. Each class of devices would likely have its own set of enterprising hackers and renegade device makers, eager to evade the mandates. Presumably, financial penalties would be required and various enforcement actions would be sanctioned in an attempt to thwart such activity. Finally, as a result of these new mandates, the prices all the affected media devices would likely rise for consumers.

Unintended Consequences and Constitutional Concerns

At this point, some supporters of such an approach might be thinking: So what? Regulation is often difficult, even expensive, but we find ways to enforce many other laws if for no other reason than to try to teach the public, or kids, a lesson. In this case, some slippage in the system might be viewed as an acceptable trade-off for the increased awareness among some parents about parental control tools or potentially objectionable media content or forms of online communications.

But this mentality is quite myopic in that it ignores the many unintended consequences of such a regulatory regime. The fundamental problem with a mandate of this sort is that, while well-intentioned, it threatens to upset the current balance of things and could leave parents and their children less well off.

As was stated previously, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal. It would be foolish, however, to think that this situation might not be retarded or even reversed by misguided public policy prescriptions. One of the most unfortunate consequences of such a mandate would be that it might lull some parents into a false sense of security. If parents came to believe that because a filter was installed they need do nothing more to help their children go online safely, or become engaged in their media choices, that would be an extremely troubling outcome.

Moreover, as was noted above, a rule mandating restrictive parental control defaults might create perverse incentives for industry to not rate content or build better controls at all. After all, it is important to remember that the ratings and controls that government is seeking to regulate here are voluntary and private; there is no reason they couldn’t be abandoned tomorrow. Of course, if they were abandoned that might lead to calls for government intervention / regulation and the substitution of some sort of universal ratings regime for the voluntary systems that exist today. If that scenario developed, lawmakers will be forced into making content-based determinations that would likely run afoul of the First Amendment.

But even if voluntary rating systems remained in place as the basis of a new federal enforcement regime, there are some constitutional issues in play here. Namely, it would be unconstitutional for government to enshrine a private ratings scheme into law or use it as a trigger for legal liability. That is what several courts have held in past years after some state and local governments attempted to enact laws or ordinances based upon the MPAA’s voluntary movie ratings system.

For example, in Borger v. Bisciglia a U.S. District Court held that “[A] private organization’s ratings system cannot be used to determine whether a movie receives constitutional protection.” Similarly, in Swope v. Lubbers, the court held that “[t]he standards by which the movie industry rates its films do not correspond to the… criteria for determining whether an item merits constitutional protection or not.” Roughly a dozen court cases have come to largely the same conclusion: Government cannot co-opt a voluntary, private ratings system for its own ends. Recent video game cases have reached similar conclusions. Thus, a law mandating parental control defaults based on voluntary ratings systems will likely end up in court and become the subject of another protracted legal battle between government and industry.

Is This Really Necessary?

Finally, it’s worth noting that most media, communications, and computing devices cost substantial sums of money. Televisions, movies, video games, cell phones, MP3 players, computers, and so on, do not just drop from high-tech heaven into our kids’ laps! When our kids want those things—or want things that are advertised on those media platforms—they must come to us and ask for money (usually a lot of it). This “power of the purse” is, in many ways, the ultimate parental control tool. If parents are shelling out money for such devices, presumably they are also in a good position to set some rules about the use of those devices once they are brought into the home. Whether those rules take the form of informal household media rules or technical parental controls is, ultimately, a decision that each family must make for themselves. There is no reason for government to make that decision preemptively for all households by mandating highly restrictive parental control defaults.

Moreover, there are better ways for government and industry to encourage the diffusion and adoption of parental control tools and rating systems. Instead of spending money litigating cases against the government, industry should plow their resources into improved, easier-to-use parental control tools and consumer education efforts. And, as was mentioned above, government education and awareness-building campaigns could go a long way toward improving consumer adoption. In the past, government has helped change public attitudes about safety in other contexts by undertaking (or lending support to) various public awareness campaigns, including: forest fire prevention efforts (“Smokey the Bear” campaigns); anti-littering efforts (“Give a Hoot, Don’t Pollute”), and seat-belt safety. Those campaigns have helped forever change behavior and improved public safety as a result.

Policymakers should tap these more constructive, constitutional solutions and steer clear of mandating parental controls and restrictive default settings that would, ultimately, have many unintended consequences and leave parents and children worse off in the long run.