Articles by Adam Thierer 
Senior Fellow in Technology & Innovation at the R Street Institute in Washington, DC. Formerly a senior research fellow at the Mercatus Center at George Mason University, President of the Progress & Freedom Foundation, Director of Telecommunications Studies at the Cato Institute, and a Fellow in Economic Policy at the Heritage Foundation.
The FCC got a wake-up call yesterday in the Second Circuit Court of Appeals in New York City. The agency was there in court defending its recent actions in various indecency enforcement cases against Fox Television. Specifically, the question at hand was whether of not the use of a fleeting explicative should be categorically barred from the airwaves and punishable by massive fines if they are uttered. (You can find the video of the trial on C-Span’s website).
The 3-judge panel showed very little patience with the FCC and asked some sharp questions about its stepped-up crusade to regulate broadcast speech. (The case is
Fox Television v. FCC and, as I mentioned here before, I filed a joint amicus brief in the case along with my friends at the Center for Democracy and Technology.)
Before a packed courtroom, FCC attorney Eric Miller was grilled by Second Circuit Judges Rosemary Pooler, Pierre Leval and Peter Hall on numerous issues. Here are a few highlights:
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This new poll from the folks over at 463 Communications and Zogby reveals that an overwhelming majority of Americans (83 percent, to be exact) “believe that a typical 12-year-old knows more about the Internet than their member of Congress.” And there is no difference by party affliation. Republicans (85 percent) and Democrats (86 percent) agreed completely on this point.
How sad, and some days in this town, I’m inclined to agree.
I spend a lot of time arguing with media critics who would like to see various types of content censored in the name of protecting children. Video games are usually at the top of their regulatory wish list. Some of these critics claim that video games are, at a minimum, creating a generation of slothful youth. But others make more grandiose claims that video games are training today’s youth to essentially be cop killers or serial murderers. That’s the conclusion of one book I read recently with the title (I’m not kidding) “Stop Teaching Our Kids to Kill.” The authors of this over-the-top book argue that there is “a clear cause-and-effect relationship between screen violence and violent behavior.”
But it just isn’t true. As I documented in this recent study, juvenile murder, rape, robbery and assault are all down significantly over the past decade. Overall, aggregate violent crime by juveniles fell 43 percent from 1995-2004. And there are fewer murders at school today and fewer students report carrying weapons to school or anywhere else than at any point in the past decade. Other juvenile trends are improving, too. Alcohol and drug abuse among high school seniors has generally been falling and is currently at a 20-year low. Teen birth rates have hit a 20-year low in 2002 and fewer teens are having sex today than they were 15 years ago. High school dropout rates continue to fall steadily, as they have for the past 30 years. And although the teenage suicide rate rose steadily until the mid-1990s, it began a dramatic decline after that that continues today. (All these statistics are thoroughly documented in my study).
But let’s set aside these meddlesome things called facts for a moment and ask a different question: Are the “games” that kids play today really more dangerous than the games older generations played when they were children? Are the electronically-rendered games that kids play today really more dangerous than the games children played back in the “good ol’ days”?
What got me thinking about this website that one of my PFF colleagues brought to my attention entitled “The 10 Most Dangerous Play Things of All Time.” It’s a humorous look at some of the most dangerous toys and games of the past few decades. And when I say dangerous, I mean seriously dangerous toys–as in death, dismemberment or poisoning. That kind of dangerous. And I’m proud to say that even though I owned and played with 3 of the toys on the “most dangerous” list, I made it out of childhood alive and unharmed! Nonetheless, the list is frightening.
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My former Cato Institute colleague and frequent co-author Wayne Crews suggests in an editorial today the time may be right for a “Declaration of Independence for virtual games.” Crews, who is currently vice president for policy at the Competitive Enterprise Institute, argues that:
“Can political regulation be avoided? ‘Second Life’ is a grand experiment: Those appreciative of today’s numerous revolutions in communications, of which ‘Second Life’ is one striking example, have a stake in keeping voluntary, private networks like ‘Second Life’ as unregulated as possible, or at the very least, relying on existing law that obviates the need for harmful regulatory adventurism.”
This is something I’ve wondered about myself in various essays here. It’s been ten years since John Perry Barlow penned his famous “Declaration of Independence for Cyberspace.” Maybe it’s time for someone take a shot at one for the virtual reality world. So, who wants be the Thomas Jefferson of virtual reality?!
A poll out today from the Washington Post finds that two-thirds of Americans believe their government is spying on them. Specifically, the poll asked if the FBI and other agencies are “intruding on some Americans’ privacy rights” in terrorism investigations. 66% said YES, up from 58% in a poll taken in September 2003. The Post poll also found that “Support for intrusive tactics has dropped even more significantly during that time. A bare majority, 51 percent, feel the tactics are justified, down from 63 percent three years ago.” And you might recall that an earlier privacy poll conducted by CNN & Gallop in February of this year found that 21% of Americans think federal agents have listened in on their phone calls!
Are we Americans too paranoid? I don’t know, but I think it’s generally a good thing that so many people are skeptical about their government’s actions. Of course, I do not for one minute think that 21% of Americans actually have their phones tapped right now. Just do the math on that. In a nation of 300 million that would mean our government is tapping 63 million phones. I sincerely doubt our government is big enough or competent enough to tap 63 million phones at once and process all that information.
Regardless, it’s good that citizens are skeptical and vigilant about the liberty and privacy rights.
Well, here we go again. As I have said again and again and again and again and again and again, our public policy makers persist in the mistaken belief that the solution to the online predator problem is more Internet regulation instead of stiff sentences for offenders.
The non-solution du jour is an proposal that has been introduced both in Congress and now my home state of Virginia which would require sex offenders to register their e-mail addresses or IM address with the government. Senators John McCain (R-AZ) and Chuck Schumer (D-NY) introduced a bill (S. 4089) in Congress last week that contains this provision. And, according to today’s Washington Post Virginia Attorney General Robert McConnell will soon be introducing a similar e-mail registration bill. In theory, after the federal or state government officials got the predator’s e-mail or IM address, they would give social networking sites like MySpace.com access to the database to cross-reference it with their users. Again, in theory, this would allow social networking sites to weed out the bad guys.
Except, of course, that there is nothing stopping the bad guys from simply signing up for a different e-mail address somewhere else! I mean, come on, this proposal doesn’t even pass the laugh test! I don’t know about you, but I have multiple e-mail accounts and often switch providers and change my address to evade spammers. A determined predator is going to do the same thing once this law is passed. In fact, they probably already have multiple accounts today to throw people off their trail.
Again, when will our government do the right thing and put these scumbags who hurt children behind bars for a long, long time? Instead, our lawmakers now just give them a slap on the wrist and let them walk after just a few years of hard time, meaning they are out on the streets and behind keyboards again too soon. This 2003 Department of Justice study reported that the average sentence for child molesters was approximately seven years and, on average, they were released after serving just three of those seven years.
That is outrageous, and until we get serious about bringing bad guys to justice and locking them up for a long, long time, we’re never going to get this problem under control.
It is too early to say for sure but there are some encouraging signs that our public policymakers are finally starting to get the point went it comes to the sensibility (and constitutional futility) of trying to regulate video game content. Just yesterday, for example, lawmakers in the District of Columbia passed legislation that establishes a program to educate consumers about existing video game ratings and console-based controls. This represents a major shift away from the regulatory approach originally floated by incoming D.C. Mayor Adrian Fenty. While serving as a D.C. Councilman, Fenty introduced a bill that would have proposed the old regulatory combo of mandates and stiff fines on game retailers who didn’t enforce the city’s approved regulatory scheme.
But the new version of the bill, entitled the “Consumer Education on Video and Computer Games for Minors Act,” takes a very different approach. The bill requires the city to “Develop a consumer education program to educate consumers about the appropriateness of video and computer games for certain ago groups, which may include information on video and computer game rating systems and the manner in which parental controls can enhance the ability of parents to regulate their children’s access to video and computer games.”
In a phrase, D.C.’s new approach is “education, not regulation.” And while some might object to the idea of government promoting education efforts about video game ratings or console controls, that approach is infinitely more sensible (and constitutionally permissible) than government censorship.
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I’m very excited to welcome Drew Clark to the Tech Liberation Front as a regular contributor. Drew is a friend to all of us here at the TLF and is well-known in technology policy circles as one of the finest writers about the Digital Economy issues we cover here. Many of you will be familiar with his past work as a senior writer at National Journal’s Technology Daily, which is required reading for tech policy wonks. And you’ve probably seen some of his “Wired in Washington” columns on occasion, too. Or his frequent freelance work for major papers like The Washington Post or Slate. Or even his excellent chapter on “How Copyright Became Controversial” for a book I edited a few years ago. (OK, so you probably didn’t see that book, but at least make sure to read Drew’s chapter!)
Today, Drew is a Senior Fellow and Project Manager at the Center for Public Integrity. He has headed the Center’s “Well Connected” Project on telecommunications and the media since August 2006 and is responsible for the re-launch of the Center’s “Media Tracker” service. The Media Tracker is a free Internet database that allows Americans to see who owns the media and communications networks in their city and ZIP code and also allows users to examine the political contributions and lobbying expenditures by almost 300 telecom, media and technology companies.
Drew also blogs on his own Web site, www.drewclark.com and at the Center for Public Integrity’s “Telecom Watch Blog.” We are very excited he’ll also be sharing his thoughts with us here on the TLF.
Welcome aboard Drew!
Over at CNet News.com today, Daniel Terdiman reports that “IRS taxation of online game virtual assets [seems] inevitable”:
That’s because game publishers may well in the not-too-distant future have to send the forms–which individuals receive when earning nonemployee income from companies or institutions–to virtual world players engaging in transactions for valuable items like Ultima Online castles, EverQuest weapons or Second Life currency, even when those players don’t convert the assets into cash. Most governments are only beginning to become aware of the substantial economic activity in online games, but the games’ rapid growth and the substantial value of the many virtual assets changing hands in them is almost certain to bring them into the popular consciousness. “Given growth rates of 10 to 15 percent a month, the question is when, not if, Congress and IRS start paying attention to these issues,” said Dan Miller, a senior economist with the Congress’ Joint Economic Committee, who is also a fan of virtual worlds. “So it is incumbent on us to set the terms and the debate so we have a shaped tax policy toward virtual worlds and virtual economies in a favorable way.”
My problem with all this is not just that I am a rabid, anti-tax libertarian. It’s that we’re putting the cart before the horse in the sense that we haven’t even figured out what sort of governance structures will be imposed within most of these virtual worlds yet. Despite that, we’re already having a discussion about how “Meat Space” (tangible world) taxes should be to applied cyberspace worlds. Sounds like old fashion “taxation without representation” to me.
We first need to figure out a lot of other basic things about virtual world governance before rushing to impose real world taxes. What sort of property rights will apply? What about copyrights? (See my previous essay on that issue here). How will contracts be enforced? Etc, etc. And, to the maximum extent possible, these things should be decided by the Net-izens living in those virtual worlds before any Congress critters or IRS bureaucrats try to impose taxes on virtual worlds they likely have never even visited.
Yesterday, the Center for Democracy & Technology and the Progress & Freedom Foundation filed joint comments in both the Second Circuit Court of Appeals and Third Circuit Court of Appeals calling upon the courts to halt the Federal Communications Commission’s (FCC) recent over-zealous indecency enforcement activities. The cases are Fox Television Stations v. FCC (the Second Circuit case) and CBS Corp. v. FCC (the Third Circuit case). (The filings we submitted to the courts were virtually identical so I’m just posting the link for the Second Circuit brief which you can find here).
In our joint amicus briefs we argued that the status quo cannot stand for three primary reasons:
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