Sen. Amy Klobuchar just released a letter to Facebook demanding the site require “a prominent safety button or link on the profile pages of users under the age of 18″—akin to the so-called “panic button” app launched earlier this week by the UK’s Child Exploitation & Online Protection Centre (CEOP). She doesn’t seem to realize that this app is available to all Facebook users, not just those in the UK. But her focus on empowerment tools and education is admirable, and it’s certainly a fair question to ask what sites like Facebook and MySpace are doing in these areas.
Unfortunately, Klobuchar’s letter also engages in blatant fear-mongering:
Recent research has shown that one in four American teenagers have been victims of a cyber predator. And when teens experience abusive behavior online, only ten percent discuss it with their parents and even fewer report the misconduct to law enforcement. It’s clear that teenagers need to know how to respond to a cyber attack and I believe we need stronger reporting mechanisms to keep our kids safe.
Klobuchar doesn’t actually cite anything, so it’s not clear what research she’s relying on. The 25% statistic is particularly incendiary, suggesting a nationwide cyber-predation crisis—perhaps leading the public to believe 8 or 9 million teens have been lured into sexual encounters offline. Perhaps the Senator considers every cyber-bully a cyber predator—which might get to the 25% number. But there are two serious problem with that moral equivalence.
First, to equate child predation with peer bullying is to engage in a dangerous game of defining deviancy down. Predation and bullying are radically different things. The first (sexual abuse) is a clear and heinous crime that can lead to long-term psychological damage. The second might be a crime in certain circumstances, but generally not. And it is even less likely to be a crime when it occurs among young peers, which research shows constitutes the vast majority of cases. As Adam Thierer and I noted in our Congressional testimony last year, there are legitimate concerns about cyberbullying, but it’s something best dealt with by parents and schools rather than prosecutors (like Klobuchar in her pre-Senate career).
Second, a series of official taskforces have concluded that the cyberpredator technopanic is vastly overblown. Continue reading →
Earlier this year, while I was preparing this mega-filing to the Federal Communications Commission in its “Future of Media” proceeding, I read Uninhibited, Robust, and Wide-open: A Free Press for a New Century, by Lee C. Bollinger, who is the president of Columbia University. I had planned on reviewing it since I try to review almost every book I read, but it was hard for me to believe that anyone would take this book too seriously, so I just moved along.
I hate to be that dismissive of any text but this is a book, after all, that proposes the creation of a massive U.S. propaganda machine. Bollinger doesn’t just want our government to help out a bit at the margins like it currently does; he wants the State to get under the covers, cuddle tight and become intimate lovers with the Press. And then he wants the Big Press to project itself more, especially overseas, to compete with other State-owned or subsidized media enterprises. Again, it’s a propaganda machine, pure and simple. In a new Wall Street Journal editorial today entitled, “Journalism Needs Government Help,” he argues:
To me a key priority is to strengthen our public broadcasting role in the global arena. In today’s rapidly globalizing and interconnected world, other countries are developing a strong media presence. In addition to the BBC, there is China’s CCTV and Xinhua news, as well as Qatar’s Al Jazeera. The U.S. government’s international broadcasters, like Voice of America and Radio Free Europe, were developed during the Cold War as tools of our anticommunist foreign policy. In a sign of how anachronistic our system is in a digital age, these broadcasters are legally forbidden from airing within the U.S. This system needs to be revised and its resources consolidated and augmented with those of NPR and PBS to create an American World Service that can compete with the BBC and other global broadcasters.
China’s CCTV and Xinhua news? Qatar’s Al Jazeera? Really?! As Jeff Jarvis rightly asks in his terrific response essay, “No American BBC,”: “In what sane world is the Chinese government’s relationship with news a model?” Indeed, this is frightening stuff. Has Bollinger not studied the Chinese system of state media meddling? Needless to say, it’s not pretty. And while I would agree that the BBC model shows that some State-funded media can be quite impressive and free of most meddling, that’s not been the case across the board. Continue reading →
The Second Circuit just threw out the FCC’s broadcast indecency rules—which had led to heavy fines for “fleeting expletives”—as “unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here.” What’s ultimately most important about this decision is not what the court did, but what it said: The Constitutional framework that has allowed broadcast censorship has been rendered obsolete by the rise of the Internet and parental empowerment tools for new and old media.
In short, the court utterly rejected the Supreme Court’s 1978 Pacifica decision—which gave the FCC great discretion in regulating indecency on broadcast radio and television in order to protect children who might be in the audience during daytime and early evening hours, citing the unique “pervasiveness” and “invasiveness” of broadcasting into the home. The court fully embraced what we’ve been saying for years—neither rationale holds true anymore:
we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook,and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in thelives of all Americans.”
The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast…. The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs…. Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. (15-16)
Thus, the Second Circuit all but begged the Supreme Court to throw out Pacifica completely, but quickly noted that it is “bound by Supreme Court precedent, regardless of whether it reflects today’s realities” (17). Fortunately, the court was able to reach the same result on vagueness grounds. It’s worth reading this key passage to see what a consistent approach to the First Amendment would look like: Continue reading →
Better late than never, I’ve finally given a close read to the Notice of Inquiry issued by the FCC on June 17th. (See my earlier comments, “FCC Votes for Reclassification, Dog Bites Man”.) In some sense there was no surprise to the contents; the Commission’s legal counsel and Chairman Julius Genachowski had both published comments over a month before the NOI that laid out the regulatory scheme the Commission now has in mind for broadband Internet access.
Chairman Genachowski’s “Third Way” comments proposed an option that he hoped would satisfy both extremes. The FCC would abandon efforts to find new ways to meet its regulatory goals using “ancillary jurisdiction” under Title I (an avenue the D.C. Circuit had wounded, but hadn’t actually exterminated, in the Comcast decision), but at the same time would not go as far as some advocates urged and put broadband Internet completely under the telephone rules of Title II.
Continue reading →
[cross-posted from BigGovernment.com]
In the battle over media and communications freedom, no group poses a more serious threat to a free and independent press than the insultingly misnamed regulatory activist group Free Press. Along with their founders, the prolific neo-Marxist media theorist Robert W. McChesney and Nation correspondent John Nichols, Free Press has engaged in relentless agitation for a truly radical media and communications policy agenda, and their influence is now spreading throughout the Obama Administration.
The Free Press-McChesney blueprint for media “reform” reads more like a script for State servitude. On the regulatory side, they call for media ownership restrictions, “localism” mandates, “Net neutrality” regulations, price controls on broadband, advertising and copyright restrictions, and layers of additional regulatory edicts. Once all that red tape smothers the life out the independent press and private communications providers, they plan to have the State step in become the primary benefactor of the Fourth Estate and high-tech infrastructure. For starters, McChesney and Nichols advocate a $35 billion annual “public works” program for the press modeled after the Works Progress Administration of the New Deal era. Their media WPA would include a “News AmeriCorps” for out-of-work journalists, a “Citizenship News Voucher” to funnel taxpayer support to struggling media entities, a significant expansion of postal subsidies, a massive new subsidy for journalism schools, corporate welfare for newspapers sufficient to pay 50 percent of the salaries of all “journalistic employees,” municipal government ownership of press and infrastructure, and many more bureaucratic programs. Continue reading →
I’m hoping to get some input from readers as I look to finish up an amicus brief for the forthcoming Schwarzenegger v. EMA video game case. (Respondent briefs are due in mid-Sept and the State of California just filed its brief with the Court today). You will recall that the Supreme Court accepted the case for review in April, meaning it will be the first major case regarding video game speech rights heard by our nation’s highest court. It raises questions about the First Amendment status of games and what rights minors have to buy or play “violent” video games. One section I hope to include in the brief I’m working on deals with how other forms of media content are increasingly intertwined with video game content. In it, I explain how video games are less of a discreet category of visual entertainment than they once were. I’d welcome ideas for other examples to use relative to the ones you see below.
I begin by discussing games that were inspired by major motion pictures, such as both the recent Star Wars and Lord of the Rings movie trilogies, for example. I also note that many games were inspired by notable books, such as the LotR games being inspired by Tolkien, and The Godfather video games that were inspired by Mario Puzo’s novel of the same name. I also make mention of The Terminator movies starring California Governor Arnold Schwarzenegger, which inspired a wide variety of video games, many of which featured his likeness.
More importantly, I highlight how many video games are now inspiring movies, music, books, and comics, including: Prince of Persia, Max Payne, Resident Evil, Tomb Raider, Doom, Final Fantasy, Halo, and Gears of War. The characters and storylines in the books, comics, and movies based on these games often closely track the video games that inspired them. Increasingly, therefore, games are developed along parallel tracks with these other forms of content. Thus, to regulate games under the standard California proposes in this case raises the question of whether those other types of media should be regulated in a similar fashion. Should every iteration of the original game title be regulated under the standard California has suggested if those books, comics, or movies contain violent themes?
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Join The Progress & Freedom Foundation and the law firm of Hogan Lovells LLP for a luncheon discussion (12-2 pm) on trans-national regulation and litigation of defamation, hate speech, indecency and political dissent on the Internet. Our own Adam Thierer will moderate a panel of cyberlawyers including:
Hope to see you at Hogan Lovells (555 13th Street NW Washington, D.C.) at noon on Wednesday, July 14. Space is limited, so please register here.
NY venture capitalist Fred Wilson notes eight advantages of using the iPhone’s Safari browser over iPhone apps to access content. Fred’s arguments seem pretty sound to me and help to illustrate the point I was trying to make a few months ago in a heated exchange over Adam’s post on Apple’s App Store, Porn & “Censorship”: Although Apple restricts pornographic apps, it does not restrict what iPhone (or iPad or iTouch) users can access on their browsers. (And it’s not censorship, anyway, because that’s what governments do!)
As I noted in that exchange, the main practical advantage of apps right now over the browser seems to be the ability to play videos from websites that require Flash—which is especially useful for porn! Apple has rejected using Flash on the iPhone on technical grounds, in favor of HTML5, which will allow websites to display video without Flash—including on mobile devices. But once HTML5 is implemented (large scale adoption expected in 2012), this primary advantage of apps over mobile Safari will disappear: Users will be able to view porn on their browsers without needing to rely on apps—and Apple’s control over apps based on their content will no longer matter so much, if at all.
Of course, it may take several more years for HTML5 to really become the standard, but what matters is that all Apple products, including mobile Safari, already support HTML5. So it’s just a question of when porn sites move from Flash to HTML5. That seems already to be happening, with major porn publishers already starting the transition. The main stumbling block seems to be HTML5 support from the other browser makers. But Internet Explorer 9 supports HTML5, and is expected out early in 2011 with a beta version due out this August. Mozilla’s Firefox 4.0 (formerly 3.7) also promises HTML5 support and is due out this November. Since porn publishers have always been on the cutting edge of implementing new web technologies, I’d bet we’ll start seeing many porn sites move to HTML5 by this Christmas. And by Christmas 2011, as we all sit around the fire with Grandma sipping eggnog and enjoying our favorite adult websites on our overpriced-but-elegant Apple products loading in HTML5 in the Safari browser, we’ll all look back and wonder why anyone made such a big deal about Apple restricting porn apps.
Oh, and if you get tired of waiting, get an Android phone! Anyway, here are my comments on Adam’s February post: Continue reading →
Common Sense Media (CSM) is a media “watchdog” group that provides a terrifically useful service to the public through independent reviews of popular media content (movies, music, TV, games, and more). As a parent, I find their service indispensable and, as a policy analyst, I have praised their rating system and their media literacy / digital citizenship programs again and again, including numerous endorsements in my special report on Parental Controls & Online Child Protection and other testimony and filings before Congress and federal regulatory agencies.
Thus, being such a big fan of CSM, I was quite dismayed to see the comments they just submitted to the Federal Trade Commission (FTC) as part of the agency’s review of the Children’s Online Privacy Protection Act (COPPA). They advocate not just expanded educational efforts, which are great, but also expanding COPPA’s age scope to cover all kids under 18 as well as opt-in mandates for the collection and use of any “personal information” or “behavioral marketing.” For all the background on the law and the FTC’s resulting COPPA rule, see this beefy paper Berin Szoka and I authored last year and this testimony and follow-up submission Berin did for the Senate Commerce Committee. And then read the joint submission made by PFF, CDT, and EFF in the same FTC proceeding that CSM just filed in.
Sadly, it’s clear to me that Common Sense Media didn’t take anything we warned about in those papers or filings seriously—or perhaps that they just didn’t bother to read them very carefully, if at all. Their filing is a classic example of good intentions gone wrong. I understand that they want to take additional steps to protect children online, but they completely ignore the practical realities of COPPA expansion and its associated trade-offs:
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“Don’t turn COPPA into a sweeping age verification mandate for the Internet!” That was essentially the core message of joint comments (below) Adam Thierer and I today filed with the Center for Democracy & Technology and the Electronic Frontier Foundation on the FTC’s Implementation Review of the rules that implement the Children’s Online Privacy Protection Act of 1998 (which requires verifiable parental consent for kids under 13 to use most interactive sites and services if those sites are “directed to” them or if the site has “actual knowledge” it might be collecting personal information from such kids or allowing them to share such information through the site).
Specifically, we counsel the Commission against expanding COPPA beyond its original, limited purposes and scope, or calling on Congress to enact an expansion. In a techno-functional sense, COPPA is already “expansive,” since it is essentially device- and technology- neutral—essentially applying to any site or service that uses the Internet. That flexibility should allow the FTC to apply the statute in a changing landscape without further legislative changes. But we explain why COPPA is necessarily narrow in its age scope and the “directed to” and “actual knowledge” concepts that actually trigger COPPA’s requirements—and why changing any one of these three critical parts would inevitably lead to unconstitutional restrictions on the speech rights of adults, minors, and site operators, while actually reducing online privacy but without enhancing the online safety of children.
We call instead for the agency (i) to use the breadth and flexibility already given to it by Congress in the COPPA statute to enforce the statute in a manner consistent with the rapidly changing technical landscape and (ii) to supplement enforcement of that existing law with increased educational efforts and promotion of parental empowerment solutions.
Adam and I certainly have our differences with CDT and EFF on some issues, but this is not one of them! I’m deeply proud to join with these organizations in pointing out the unintended consequences of expanding regulation in an area where all too many people stop thinking carefully about the effects of regulation because, they seem to think, “We can never do enough for the children!” As we point out in our comments, the trade-offs here aren’t just between “The Children” and anyone’s narrow economic interests, but run far, far deeper. Adam & I did our best to succinctly capture the true, complex cluster of issues at stake with the title of the paper we released last summer about COPPA expansion: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.”
The stakes here for our digital future could hardly be higher, yet more subtle. Continue reading →
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