Last night, I appeared on the Jim Bohannon radio show for 30 minutes and discussed the past, present, and future of the Fairness Doctrine and broadcast industry regulation in general. More specifically, we got into efforts to drive Fairness Doctrine-like regulations back on the books via backdoor efforts like “localism” mandates, community oversight boards, and other public interest requirements. These are issues that Brian Anderson and I discuss in our new book, A Manifesto for Media Freedom, which I blogged about here when it was released in October.
If you’re interested, you can listen to the entire show by clicking here.
Today, President Bush signed S. 602, “The Child Safe Viewing Act.”(CNet story here). The measure requires the Federal Communications Commission (FCC) to conduct an inquiry to examine the availability of, and methods of encouraging the use of, advanced blocking technologies that help parents protect their children from transmitted video and audio programming that the parents determine to be indecent or objectionable. The FCC has 270 days to complete the report.
I wrote about the measure more extensively when it passed the Senate back in October. As I noted in then, the measure was modified slightly when it passed through the Commerce Committee last year, but it still contains some provision that could be problematic. Specifically, as part of the FCC’s required study, the bill commands the FCC to “consider advanced blocking technologies” that:
may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms;
operate independently of ratings pre-assigned by the creator of such video or audio programming.
Those two provisions are cause for concern since they raise the specter of what I referred to as “convergence-era content regulation” in a PFF paper about the bill last year. It does so in two ways. First, it opens the door to FCC bureaucrats investigating media content controls for wireless and Internet platforms, something it has never been empowered to do before. Second, by specifying that these new advanced content blocking technologies should “operate independently of ratings pre-assigned by the creator,” the law seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption that suggests the FCC might be able to come up with better media ratings on its own.
Last month, I noted that UCLA Law School professor Doug Lichtman has a wonderful new monthly podcast called the “Intellectual Property Colloquium.” This month’s show features two giants in the field of tech policy — George Washington Law Professor Daniel Solove and Santa Clara Law Professor Eric Goldman –- discussing online privacy, defamation, and intermediary liability. More specifically, in separate conversations, Solove and Goldman both consider the scope of Section 230 of the Communications Decency Act of 1996, which shields Internet intermediaries from liability for the speech and expression of their users. Sec. 230 is the subject of hot debate these days and Solove and Goldman provide two very different perspectives about the law and its impact.
Goldman calls Sec. 230 “pure cyberspace exceptionalism” in the sense that it breaks from traditional tort norms governing intermediary liability. But he argues that this new online version of intermediary liability (which is extremely limited in scope) encourages more robust speech and expression than the older, offline version of liability (which was far more strict). I completely agree with Eric Goldman, but I respect the arguments that Lichtman and Solove raise about the privacy and defamation problems raised by the purist approach that Goldman and I favor.
Goldman also does a nice job dissecting the Roomates.com and Craigslist.com cases. And Lichtman brings up the JuicyCampus.com case during the conclusion. These are important cases for the future of Sec. 230 and online liability. Incidentally, there’s also an interesting conversation between Lichtman and Solove (around the 32:00 mark) about an issue that Alex Harris and Tim Lee have been raising here about the nature of online contracts and the perils of messy EULAs / Terms of Service (TOS).
These are two absolutely terrific conversations. Very in-depth and very highly recommended. Listen here.
[Note: I recently reviewed Daniel Solove’s important new book, Understanding Privacy, here.]
Back in June, Adam Thierer and I denounced (PDF) Kevin Martin’s plans to create broadband utility to provide censored (and very slow) broadband for free to all Americans. The WSJ reports that this scheme is now at the top of Martin’s December agenda:
The proposal to allow a no-smut, free wireless Internet service is part of a proposal to auction off a chunk of airwaves. The winning bidder would be required to set aside a quarter of the airwaves for a free Internet service. The winner could establish a paid service that would have a fast wireless Internet connection. The free service could be slower and would be required to filter out pornography and other material not suitable for children. The FCC’s proposal mirrors a plan offered by M2Z Networks Inc., a start-up backed by Kleiner Perkins Caufield & Byers partner John Doerr.
One could speculate as to how big an impact this service would really have. Having just spent two weeks “wardriving” around Paris, Abu Dhabi and Dubai (looking for open wi-fi hotspots to try to get Internet access on my otherwise non-functional smart phone), I could certainly imagine scenarios in which some people might well use even a slow wireless service at least as a supplement to another provider–if their devices supported it. But however useful the service might be to some people, and whether any company would actually want to build such a system in the first place if they have to give away such service, I think it’s a safe bet that if this is actually implemented, it will represent a victory for government censorship over content some people don’t like.
If this idea is still alive and kicking when the Obama administration has security escort Martin out of FCC headquarters in January–to hearty applause from nearly all quarters in Washington, no doubt–it will be interesting to see which impulse prevails on the Left, both within the new Administration and in the policy community. Will the defenders of free expression triumph over those who see ensuring free broadband as a social justice issue? Or will those on the Left who usually joining us in opposing censorship simply remain silent as the government extends the architecture of censoring the “public airways” onto the Net (where the underlying rationale of traditional broadcast regulation–that parents are powerless–does not apply)?
Do we have any Australian TLF readers out there? If so, I’d be interested in their input about how well video game censorship works down under.
I follow Australian content regulation via the wonderful “Somebody Think of the Children!” blog, operated by Michael Meloni of Brisbane, Australia. (Mike, if you’re listening, you have at least one big fan here in the U.S. and thank you for keeping the rest of us up-to-speed about censorship developments on the other side of the globe!) This week, Mike reports that another video game (“F.E.A.R. 2”) was refused classification by the Australian government’s Classification Board. Apparently, the “refused classification” designation is the equivalent of a ban in Australia. And F.E.A.R. 2 is the fifth game to receive that designation in 2008. (Other games that have been censored, or subject to some sort of political investigation or pressure, are inventoried at the “Refused Classification.com” website.)
First, let me just say that this again reminds me how lucky we are to have strong free speech protections here in the United States thanks to the First Amendment of our Constitution. I do so much bitching about efforts to regulate speech and media content (especially video games) that I sometimes fail to step back and appreciate how fortunate we are here in the U.S. to not have to worry about an official government ratings body overseeing all game releases. This really hit home for me when I read that “Fallout 3” was one of the 5 games banned this year. It’s a brilliant game and I just can believe it would be censored such that the Australian public could not play the same version of it that I can.
Second, I’m wondering how well these bans work in Australia. A big part of my research on speech regulation is focused on the practicality of censorship in the modern Information Age. [See my “End of Censorship” essay.] Thus — taking off my advocate hat and putting on my academic hat — I would be very interested in hearing from Australians about how effective these regulatory schemes are in practice. Can you still get games from overseas and play them on consoles and PCs in Australia? Do you download uncensored versions (either legally or illegally)? Does the government take steps to stem the flow of unregulated content? Or, are most citizens willing to just played the censored version of games that the Australian government eventually authorizes? Have there been academic studies done on the practical side of content censorship in Australia?
You get the idea. Any input would be greatly appreciated.
[Note: I have also been following the Australian government’s big recent push for centralized Internet filtering. Would be interested in input as that as well from Australians citizens.]
Important article in the New York Times yesterday in which Brian Stelter wondered if, in the wake of the Lori Drew verdict this week, “Is lying about one’s identity on the Internet now a crime?” It’s still unclear if the case will have such profound ramifications, but it has many quite worried. Stelter quotes occasional TLF contributor Andrew Grossman, who is Senior Legal Policy Analyst at the Heritage Foundation. Andrew penned an outstanding paper on the case for Heritage in mid-September: “The MySpace Suicide: A Case Study in Overcriminalization.” He summarized the paper and the important issues at stake in the case in this post for the TLF: “Go to Jail for Online Anonymity: The End of Internet Freedom?” Make sure you read them. I wholeheartedly agree with the concerns Andrew outlines in those essays.
You’ll also want to check out Orin Kerr’s analysis of the case over at the Volohk Consipiracy as well as his tounge-and-cheek piece today about changing the blog’s Terms of Service in light of the decision. I’ve been more focused recently on the threat posed to online anonymity by mandatory online age verification, but this case could have equally important ramifications.
Over the past year, I have been monitoring a very interesting trend with important ramifications for the future of Internet policy. State Attorneys General (AGs) — often in league with the National Center for Missing and Exploited Children (NCMEC) — have been striking a variety of “voluntary” agreements with various Internet companies that deal with child safety concerns or other online issues. These agreements require the companies involved to take various steps to alter site architecture and functionality, commit to stop certain practices, or take steps to block certain users (ex: predators; escort services) or types of content (ex: child porn; online “discrimination”) altogether.
To begin, let me be very clear about one thing: Some of these activities or types of content warrant a law enforcement response. That is certainly the case with child pornography or predation, for example. However, as I will note down below, there is a legitimate question about whether state officials and a non-profit private organization should be crafting legal or regulatory policies to address such concerns for a global medium like the Internet. Regardless, these agreements are creating a new layer of Internet regulation (almost extra-legal in character) that is worthy of exploration.
First, let me itemize some of these recent “voluntary” agreements between Internet companies and the AGs and/or NCMEC:
Because the subject line of the email they sent me promoting their “Safe at Any Speed” conference about online safety is: “What Will the Obama Administration Do . . . ?”
Please: Nothing, nothing, nothing. It is, and shall forever be, the responsibility of parents to raise their children, including by guiding kids’ access to and use of the online world. Adam pointed you last week to a report that appears to do a good job of keeping things in perspective.
It’s nice to see that FOSI is involving people like Adam and First Amendment lawyer nonpareil Bob Corn-Revere in their conference. The next thing they should do is move it out of Washington to where the parents are. And don’t ask what presidents will do about online safety.
“The doggone law. The consarned law. The lousy, frickin’, nit-pickin’, noveau-Prussian, freedom-crushin’ . . . .” Nice to Be Wanted twangs the sad tale:
Like Sensible Khakis and Take Up the Flame,Nice to Be Wanted comes with a license allowing pretty free non-commercial use. Also like those songs, this one requires commercial licensees to tithe 10% to a good cause—here, the Institute for Justice.
We all owe IJ thanks for its Good Works. I owe IJ a special “thank you,” for inspiring the lines in Nice to Be Wanted about the plight of the “charmin’ lady down New Orleans’ way.” Alas, her tale rings all too true. May she—and may we all—win greater freedom to pursue our livelihoods. Go get ’em IJ! (The bit about “pumped his own gas” also draws from a real-world inspiration: just scroll down to Oregon Revised Statute § 480.330.)
I plan at least a few more of these videos, by the way. Subscribe to my channel to catch them all. My efforts remain pretty raw for now, granted; Nice to Be Wanted comes from only the second take of my first visit to a recording studio. Please share your suggestions about how I might improve. (You can skip, “Suck less,” though. I’m already working on that, thanks.)
At Stanford Law School, I am a member of the Stanford Law and Technology Association and the Center for Internet and Society. I write for CIS’s publication, Packets. I just published a piece summarizing the recent Third Circuit case once again holding the Child Online Protection Act unconstitutional. When the decision was released back in July, Adam Thierer wrote a wonderful post here on it. Adam’s and my pieces are complementary. Though Adam gave a nice assessment of COPA’s future, my summary goes into a bit greater detail on the court’s legal reasoning. If you’re interested in the law or in the constitutional principles involved, you may want to check out this interview with my brother, who was a counsel on the case.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology. Learn more about TLF →
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.