Should the federal government regulate what blogger’s blog? Yes, said the Federal Trade Commission yesterday — at least when it comes to product endorsements.
At issue were the FTC’s guidelines concerning the use of endorsements in advertising. These guidelines, among other things, require paid endorsers of products to disclose their relationships with advertisers. The goal is a good one, to prevent deception and fraud. In practice, the lines are hard to draw — what exactly is an endorsement? What constitutes payment? It gets even harder in today’s world of user-generated media, in which much advertising is by consumers themselves on blogs and elsewhere, sharing recommendations and opinions on just about everything. Continue reading →
While I was away at Oxford University last week, a USA Today story ran entitled “Online Hate Speech: Difficult to Police… and Define.” The author, Theresa Howard, was kind enough to call me for comment on the issue before I left and I made two general points in response to her questions about how serious online hate speech was and how we should combat it:
(1) “The Internet is a cultural bazaar. It’s the place to find the best and worst of all human elements on display.” What I meant by that, quite obviously, is that you can’t expect to have the most open, accessible communications platform the world has ever known and not also have a handful of knuckleheads who use it spew vile, hateful, ridiculous comments. But we need to put things in perspective: Those jerks represent only a very, very small minority of all online speech and speakers. Hate speech is not the norm online. The overwhelmingly majority of online speech is of a socially acceptable — even beneficial — nature.
(2) “When advocacy groups work together and use the new technology at their disposal, they have a way of signaling out bad speech and bad ideas.” What I meant by that was that the best way to combat the handful of neanderthals out there that spew hateful garbage is to: (a) use positive speech to drown out hateful speech, and (b) encourage websites to self-police themselves or use community policing techniques to highlight hateful speech and encourage the community to fight back. Importantly, this process is reinforcing. When online communities “flag and tag” objectionable or hateful content, it is easier for better site policing to occur, for social norms to develop, and for better speech to be targeted at that bad speech. Moreover, these new tools and methods are helping groups like the Anti-Defamation League and the National Hispanic Media Coalition to better identify hate speech and then channel their collective energy and efforts to unite the rest of the online community against those hateful speakers and sites.
I think this approach makes more sense than calling in governments to police online hate speech through censorship efforts. This is especially the case because, at the margins, “hate speech” can often be tricky to define and, at least in the United States, regulatory efforts could conflict with legitimate free speech rights. Again, the best way to deal with and marginalize such knuckleheads is with more and better speech. Fight stupidity with sensibility, not censorship.
Playboy’s newly released 2009 College Sex Survey found that 49% of college students admitted to “Sexting” (having sent or received sexually explicit messages and pictures via cell phones). A survey conducted a year ago by the National Campaign to Prevent Teen and Unplanned Pregnancy and CosmoGirl.com found that 20% of teens (13-19) and 33% young adults (20-26) have “sent/posted nude or seminude pictures or video of themselves.” Together, these two studies give us a sense of just how prevalent sexting is.
Since nude photos of minors under 18 can be considered “child” pornography even if taken and shared voluntarily by the minor, there’s a very real possibility that minors will be prosecuted for common (if inappropriate) interactions with their peers under laws that were intended to prevent adults from exploiting children sexually. This is serious stuff indeed when one considers the dire consequences of being convicted not just of a felony, but a “sex offense.” Depending on state law, “sexters” put on a sex offender registry may spend the rest of their lives on sex registries as social pariahs with difficulty in finding a job, housing, being banned from using “social networking sites,” etc.
The study conducted last year offered some excellent advice for teens, young adults, and their parents. Perhaps we ought to spend more time focused on education than on criminalization. The tips are worth repeating here. First, for teens and kids: “Five Things to Think about Before Pressing Send:” Continue reading →
The House Judiciary Committee’s Crime subcommittee yesterday held a hearing yesterday on the painful issues of cyberbullying (webcast). Rep. Linda Sánchez (D-CA) talked about her bill, the “Megan Meier Cyber Bullying Prevention Act” (H.R. 1966), which would create of a new federal felony to punish cyberharassment, including fines and jail time for violators. Rep. Debbie Wasserman Schultz (D-FL) talked about her bill, the “Adolescent Web Awareness Requires Education Act (AWARE Act)” (H.R. 3630), which would instead allocate $125 million over five years in grants for education and awareness-building about these problems. Without endorsing any particular approach, Adam and I discussed the general advantages of education over criminalization in our “Cyberbullying Legislation: Why Education is Preferable to Regulation” paper published by PFF in June, which we updated and submitted as written testimony. But we really couldn’t have done a better job at making this point than Ranking Member Louie Gohmert (R-TX), who powerfully articulated his opposition to the run-away growth of federal criminal law. Chairman Scott (D-VA) also expressed a commendable reluctance to just pass another law and assume that fixes the problem.
Problems with Criminalization
Three lawyers on the panel generally agreed on the thorny speech and due process concerns raised by criminalization and agreed that the Sánchez bill would require serious revision to pass constitutional muster. UVA Law Prof. Robert O’Neil (testimony) suggested that of the exceptions to free speech protection recognized by the Supreme Court, the only one that could likely be used to do what advocates of cyberbullying criminalization want to accomplish is the intentional infliction of emotional distress. But O’Neill emphasized that this is generally a tort, not a criminal action—which seems like a pretty big distinction to me, especially when the criminal sanction might involve a felony conviction, as Sánchez has proposed. Felony convictions are the “Mark of Cain” in modern life, exceeded only in their lasting effect by being required to register on a sex offender registry. Cato Adjunct Fellow and civil rights lawyer Harvey Silverglate (testimony) highlighted the serious problems raised by vagueness and over-breadth in attempting to define harassment—as evidenced by speech codes at many universities. Harvard Law Prof. John Palfrey (testimony) generally echoed these concerns.
Criminalizing what is mostly child-on-child behavior simply will not solve the age-old problem of kids mistreating each other, a problem that has traditionally been dealt with through counseling and rehabilitation at the local level. For all the talk of how to craft a criminal law (especially its definitions) to minimize constitutional problems, I was very surprised that no one at the hearing raised the critical issue of just who it is we’re trying to protect and from whom. Continue reading →
I’ll be heading to Oxford University this week to participate in an Oxford Internet Institute (OII) forum on the subject of “Child Protection, Free Speech and the Internet: Mapping the Territory and Limitations of Common Ground.” It’s being led by several experts from the OII as well as my good friends John Morris and Leslie Harris of the Center for Democracy & Technology (CDT). The aims of this forum are:
- To facilitate a dialogue between NGOs campaigning to protect respectively, child protection and children’s rights online, and freedom of speech and other civil liberties online.
- To promote a better understanding of each others’ positions, to share perspectives and information with a view to identifying areas of common ground and areas of disagreement.
- To identify any shared policy goals, and possible tools to support the achievement of those goals.
- To publicize the findings of the forum in international policy debates about Internet governance and regulation.
Conference participants were asked to submit a 2-3 pg summary of their views on a couple of questions that will be discussed at this event. I have listed those questions, and my answers, down below the fold. It’s my best attempt to date to succinctly outline my views about how to balance content concerns and free speech issues going forward. Continue reading →
Yesterday up on Capitol Hill, I hosted a very interesting discussion about “Next-Generation Parental Controls & Child Safety Efforts.” I thought I’d provide a quick recap here for those who couldn’t attend. [Note: audio of the event will be up shortly at the link above and transcript is in the works.] The event featured Steve Crown, Vice President and Deputy General Counsel of Microsoft Corporation’s Entertainment & Devices Division; Dane Snowden, Vice President of External & State Affairs of CTIA – The Wireless Association; and Stephen Balkam, Chief Executive Officer of Family Online Safety Institute.
Steve Crown of Microsoft kicked the show off with a terrific overview of some the current and next-generation parental control tools and awareness efforts that Microsoft is deploying to help empower parents and keep kids safer both online and in gaming environments. Crown outlined Microsoft’s 5-prong strategy regarding how they have approached these issues on the gaming front, and I think it represents an excellent model of how sensible industry self-regulation and “best practices” can go a long way toward addressing concerns that many parents and policymakers have. The five strategies Crown outlined were: (1) Respect both the freedom of game creators and freedom of choice for game consumers; (2) empower parents with ratings, tools, and information; (3) use independent ratings (like the ESRB) to label content; (4) require all games be rated before they can be used on a platform so that parents can implement blocking controls; and (5) respect regional laws and rating systems in different parts of the globe.
In my book on Parental Controls & Online Child Safety: A Survey of Tools & Methods, I’ve documented many of the empowerment tools that Microsoft has deployed in recent years to make this empowerment vision a reality. One of the most important things MS does on its XBox 360 console is to provide an immediate “out-of-the-box” prompt for parents to set up parental controls and establish other limitations on online chat, spending, or Internet access. Microsoft announced another cool new feature in November 2007, the “Family Timer.” It lets parents limit how and when children play games on the console. This is similar to the time management tools Microsoft offers in its Vista operating system for PCs. Incidentally, my wife has asked me to start using the Family Timer on our XBox — not for our kids, but for me! This particular 40-year-old man is still a big kid at heart.
Continue reading →
Those of you who follow debates about online child protection, free speech, and parental empowerment might be interested in attending an event I am hosting Friday morning at 9:00 in the U.S. Capitol on “Next-Generation Parental Controls & Child Safety Efforts.” Our particular focus will be on the gaming sector and the mobile marketplace. The details are below and you can RSVP here to reserve one of the remaining seats.
Title: “Next-Generation Parental Controls & Child Safety Efforts”
When: this Friday, Sept. 25th from 9:00 a.m. to 10:30 a.m.
Where: U.S. Capitol Room H-137
Speakers:
- Steve Crown, Vice President and Deputy General Counsel of Microsoft Corporation’s Entertainment & Devices Division
- Dane Snowden, Vice President of External & State Affairs, CTIA – The Wireless Association
- Stephen Balkam, Chief Executive Officer, Family Online Safety Institute
- Adam Thierer (Moderator), Senior Fellow, The Progress & Freedom Foundation
Description: Exciting new digital technologies and online opportunities are available to all Americans today. Some parents and policymakers, however, continue to express concerns about the availability of objectionable content or unwanted communications online. There is also increasing concern about the accessibility of such content on newer digital devices, including mobile phones and video game platforms. Luckily, a diverse array of new tools and methods are being developed and deployed to address these concerns. At “Next-Generation Parental Controls & Child Safety Efforts,” a congressional seminar hosted by The Progress & Freedom Foundation, a panel of experts will discuss these child safety concerns and outline the diverse array of new tools and resources that are being developed and deployed to address these issues. At the event, Steve Crown, Vice President and Deputy General Counsel of Microsoft Corporation’s Entertainment & Devices Division, will discuss some of the tools and methods Microsoft has developed to help parents deal with these concerns. He and other panelists will discuss how industry and other organizations are taking steps to empower families with new tools to deal with new Digital Era challenges.
Forbes.com has just published an editorial that Berin Szoka and I penned about yesterday’s net neutrality announcement from the FCC.
by Adam Thierer & Berin Szoka
There was a time, not so long ago, when the term “Internet Freedom” actually meant what it implied: a cyberspace free from over-zealous legislators and bureaucrats. For a few brief, beautiful moments in the Internet’s history (from the mid-90s to the early 2000s), a majority of Netizens and cyber-policy pundits alike all rallied around the flag of “Hands Off the Net!” From censorship efforts, encryption controls, online taxes, privacy mandates and infrastructure regulations, there was a general consensus as to how much authority government should have over cyber-life and our cyber-liberties. Simply put, there was a “presumption of liberty” in all cyber-matters.
Those days are now gone; the presumption of online liberty is giving way to a presumption of regulation. A massive assault on real Internet freedom has been gathering steam for years and has finally come to a head. Ironically, victory for those who carry the banner of “Internet Freedom” would mean nothing less than the death of that freedom.
We refer to the gradual but certain movement to have the federal government impose “neutrality” regulation for all Internet actors and activities—and in particular, to yesterday’s announcement by Federal Communications Commission (FCC) Chairman Julius Genachowski that new rules will be floated shortly. “But wait,” you say, “You’re mixing things up! All that’s being talked about right now is the application of ‘simple net neutrality,’ regulations for the infrastructure layer of the net.” You might even claim regulations are not really regulation but pro-freedom principles to keep the net “free and open.”
Such thinking is terribly short-sighted. Here is the reality: Because of the steps being taken in Washington right now, real Internet Freedom—for all Internet operators and consumers, and for economic and speech rights alike—is about to start dying a death by a thousand regulatory cuts. Policymakers and activists groups are ramping up the FCC’s regulatory machine for a massive assault on cyber-liberty. This assault rests on the supposed superiority of common carriage regulation and “public interest” mandates over not just free markets and property rights, but over general individual liberties and freedom of speech in particular. Stated differently, cyber-collectivism is back in vogue—and it’s coming very soon to a computer near you! Continue reading →
Two great articles today about the dangers of government getting too involved in the newspaper business as the industry experiences serious marketplace difficulties. Slate’s Jack Shafer (“Saving Newspapers From Their Saviors“) and Mark Hopkins of Silicon Angle (“Obama Administration ‘Open’ to State Run Newspapers“) both raise concerns about President Obama’s recent comments hinting that he is open to legislation that might grant struggling news organizations tax breaks if they were to restructure as nonprofit businesses.
In a piece for the City Journal back in March entitled “Socializing Media in Order to Save It,” I discussed the specific proposal in question, Senator Benjamin L. Cardin’s (D-MD) bill, S. 673, the “Newspaper Revitalization Act,” which would allow newspapers to become nonprofit organizations in an effort to help them stay afloat. Importantly, however, the measure would also disallow political endorsements on their editorial pages as part of the deal. In my essay, I pointed out how “If the FCC received grant-making authority to dole out subsidies to media operators… it’s hard to imagine how journalists won’t be expected to surrender something in exchange.” And that something would be their journalistic independence.
Shafer and Hopkins raise similar concerns in their essays. Continue reading →
In his brilliantly-titled essay, Of Dynamic Media, Steamed Dinners, and Bare Breasts, PFF’s Ken Ferree points out that FCC’s “Janet Jackson case” just continues to wind on and on and on. There is basically no end in sight for this case, CBS Corp. vs. FCC or the other major ongoing broadcast indecency case, FCC v. Fox, even though the incidents that motivated these cases took place years ago (between 2002-2204). As Ken notes:
Can we not all agree that there is something wrong with this process? The media landscape has changed dramatically, even since that fateful day in 2004 when Justin Timberlake pulled the veil from the now senescent Ms. Jackson, and it will likely be unrecognizable by the time any final conclusion in this matter is reached — which could be another ten years hence.
The problem is that the wheels of justice turn slowly while the wheels of technology propel the media markets ahead at a blistering pace. We simply can’t go on pretending that broadcasting is what it was in the 1970s, 1980s, or even in the 1990s. The markets have changed, the number of program options has grown, consumers’ usage patterns have become more varied and variable, new delivery platforms have evolved, and the technologies available to manage media on a personal level — especially for parents — have become ever more sophisticated. It is time the “expert” agency recognize the media revolution that has occurred and abandon its holy war on broadcasting.
Ken’s got it exactly right when he notes that “the wheels of justice turn slowly while the wheels of technology propel the media markets ahead at a blistering pace.” Indeed, Janet Jackson will probably be an old woman living in a Florida nursing home by the time this case winds its way back and forth through the courts and finally comes to a conclusion.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.