Over at TCS Daily today, Derek Hunter points out why a la carte regulation is going to backfire for those who support it in the name of “cleaning up” cable and satellite television:
Smaller religious and family cable stations do not subsidize MTV, VH1, and other channels some people may find objectionable. Rather, the opposite is true, MTV, VH1, et. al, subsidize the small religious and family stations. By bundling them all together, it exposes the smaller channels to people who otherwise wouldn’t choose them, netting them more potential customers. If providers were forced to offer channels individually, the small networks with few subscribers would fizzle out due to lack of exposure. Given the choice between channels, the majority of people would not pick those small channels, their potential audience would shrink dramatically, and less audience means smaller revenues. So that “solution” would actually make the problem worse.
I was on vacation last week when ICANN handed down its latest rejection of the “.xxx” top-level domain (TLD). I just wanted to make two quick points about why I find this decision quite troubling.
First, it’s obvious that some critics of the .xxx TLD oppose the proposal because they think it somehow legitimizes online pornography or will lead to the proliferation of even more cyber-porn. I find this argument bizarre and naive. As John Dvorak makes abundantly clear in his recent PC Magazine column, Internet pornography is not going away and it is almost impossible to imagine how the .xxx TLD could have done anything to make it more accessible. Dvorak rightly asks: “How hard is it to find porn on the Net? Go to any search engine and type porn. Open your e-mail box. Who are these people kidding with this argument?”
Lisa Lerer of Forbes was nice enough to do a feature story this week about my views on the panic over social networking and the push for age verification of such sites. Her piece is entitled “Why MySpace is a Safe Space,” and begins as follows: “Adam Thierer doesn’t look like much of a revolutionary. But last month he challenged both Washington and conventional wisdom with a fairly radical proposition: Perhaps MySpace and the Internet aren’t so scary for kids, after all.”
I don’t really regard what I’ve been saying in my recentessays or big new PFF study as “revolutionary.” Rather, if you spend any time studying this issue and these sites in a dispassionate, educated way, I think the conclusions I draw seem quite reasonable. Unfortunately, I don’t think many policy makers or critics have spent any serious time on these sites or seriously explored the relative danger of online social networking sites relative to offline social networking places. A classic “moral panic” has developed because of this: An older generation fears a new medium that it does not use or understand.
Anyway, read my discussion with Lisa for more details.
The Parents Television Council (PTC), a media activist group that routinely petitions Congress and the FCC for greater content regulation, recently released a new poll which they say proves that the V-Chip and parental control technologies have been a failure.
Their poll finds that only 11% of those surveyed said they used the V-chip or their cable box parental controls to block unwanted content from their television during the past week. And that result is virtually unchanged from a poll they took last September asking the same question. Therefore, the PTC concludes that recent efforts by broadcasters and cable companies to spend hundreds of millions of dollars educating families about these parental control tools have been a failure. And, unsurprisingly, the PTC feels that this again shows the need for government regulators need to step in and do more national nannying for us.
As I’ll make clear in a moment, the V-Chip and current television ratings are certainly not perfect. And I have no doubt that household usage of these tools is quite low for reasons I’ll get into. But let me first address what appears to be a rather glaring methodological deficiency of this PTC poll which makes it difficult to take seriously.
Living under the gag order has been stressful and surreal. Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.
I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.
The inspector general’s report makes clear that NSL gag orders have had even more pernicious effects. Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI’s actions would have been subject to some degree of public scrutiny. To be sure, not all recipients would have spoken out; the inspector general’s report suggests that large telecom companies have been all too willing to share sensitive data with the agency — in at least one case, a telecom company gave the FBI even more information than it asked for. But some recipients would have called attention to abuses, and some abuse would have been deterred.
My friend Constantino Diaz-Duran has a great op-ed in the New York Post about the Egyptian blogger free speech case:
Egyptian authorities see blogging as so dangerous that they’ve kept Soliman in solitary confinement since his arrest in November. The former law student, whose dream was to open a human-rights law firm, has been been sentenced to four years in prison for the “crimes” of criticizing President Hosni Mubarak and insulting Islam.
The case sets a dangerous precedent in a country that has, until recently, been a beacon of hope for reform in the Middle East. Amnesty International, Human Rights Watch and the Hands Across the Mideast Alliance have condemned the sentence. Reporters Without Borders has even inducted Egypt into its Hall of Shame, naming it one of 2006’s “Internet Enemies.”
The U.S. State Department has expressed concern about Soliman’s conviction and the denial of his initial appeal. In Congress, Reps. Trent Franks (R-Ariz.) and Barney Frank (D-Mass.) have joined forces to plead with the Egyptian ambassador on behalf of Soliman. But they remain the sole voices championing the release of this young freedom fighter.
Considering that our government sends Egypt nearly $2 billion in foreign aid each year, the response has been timid.
Today’s decision in the U.S. District Court for the Eastern District of Pennsylvania again striking down the Child Online Protection Act of 1998 has important implications for the ongoing debate over age verification for social networking websites.
As I mentioned in an essay earlier this week, several state attorneys general (AGs) are currently pushing legislation to mandate age verification of minors before they would be allowed access to social networking sites. Already, age verification proposals have been introduced in Connecticut, Georgia and North Carolina. More proposals are likely on the way. AGs and other policy makers argue that age verification is necessary to protect kids from cyber-predators and other online dangers.
In my new paper, “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions“ I find that proposals to impose age verification mandates on social networking websites raise many sensitive questions with potentially profound implications for individual privacy and online freedom of speech and expression. That’s especially the case in light of the definitional ambiguities associated with “social networking.”
Today’s COPA decision bolsters many of the findings in my paper. “Requiring users to go through an age verification process would lead to a distinct loss of personal privacy,” Judge Lowell Reed Jr. says on page 55 of the decision. And his other conclusions are also relevant to the debate over social networking regulation.
As I noted in the first part of this essay, The Child Online Protection Act of 1998, which was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites, has again been struck down in the courts. The decision is fairly devastating for the government, which had been hoping to prove to the court that private Internet filtering technologies are ineffective in blocking objectionable material. The government had also hoped to prove that age verification technologies were available that might be used to block access by minors to various websites. The court rejected both of these arguments.
Here’s a quick summary of the court’s major findings on these two important issues:
The Child Online Protection Act of 1998, which was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites, has again been struck down in the courts. (Decision here) Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, ruled that:
COPA facially violates the First and Fifth Amendment rights of the plaintiffs because: (1) at least some of the plaintiffs have standing; (2) COPA is not narrowly tailored to Congress’ compelling interest; (3) defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative in achieving the compelling interest; and (3) COPA is impermissibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA.
This decision perpetuates the unbroken chain of Internet censorship cases that the government has lost since the Communications Decency Act of 1996 was overturned over ten years ago. After the CDA was rejected by a lower court and the Supreme Court, Congress passed COPA in 1998. COPA provided an affirmative defense to prosecution if a website operator could show that it had made a good faith effort to restrict site access by requiring a credit card, adult personal identification number, or some other type of age-verifying certificate or technology. But COPA was immediately challenged and has gone to the Supreme Court for review twice and, most recently, it has been stuck in the U.S. District Court where the government was again defending its constitutionality in a 4-week trial last Fall.
Thus, almost 10 years after its initial passage, the legislation remains stuck in jurisprudential limbo after endless legal wrangling about its constitutionality. Untold millions have been spent by the government litigating this decision, and they may not be done yet. If the Department of Justice appeals this latest ruling, the law might again be considered by the Third Circuit Court of Appeals and then make another return trip to the Supreme Court for an unprecedented third review by the highest court in the land.
If all the money that has been spent litigating this case had instead been spent on media literacy and online safety campaigns, it could have produced concrete, lasting results. But our government appears obsessed with pursuing regulatory mandates and legal appeals instead.
A few weeks ago, I was discussing “Campaign Finance Laws in the You Tube Age” and was wondering aloud whether current campaign finance regulations were sustainable in an age of user-generated content and viral videos. The Washington Postponders that same question today in highlighting the impact of clever mock campaign ad mash-ups like this one about “Big Sister” Hillary Clinton, which already has roughly 1.5 million hits:
The Post story notes that “this ad’s reach really blows up any notion that candidates and mainstream media outlets can control the campaign dialogue. Especially online.” That’s exactly right, but they don’t go on to ask the next logical question about how Congress and the FEC are going to deal with the growing flood of online campaign ads and commentary during coming election cycles. Remember, stuff like this can be regulated when aired on traditional television and radio outlets in the days leading up to an election. I just don’t see how current campaign finance regs and the Internet can co-exist in the long run. There’s just no way regulators are going to be able to keep pace with all the activity out there.
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.