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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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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This week I appeared on C-SPAN’s weekly program “The Communicators” and discussed a wide variety of communications and media policy issues including: the outlook for telecom & media legislation in the new Democratic Congress, the First Amendment treatment of new media technologies, Net neutrality regulation and the need for universal service and spectrum policy reform.
The video can be viewed here and I apologize in advance if I put you to sleep!
When are state and local lawmakers going to stop wasting taxpayer dollars with unnecessary regulatory enactments and fruitless lawsuits aimed at censoring video games? I ask because this week the video game industry added yet another slam dunk victory to its growing string of impressive First Amendment wins. For those of you keeping track at home, this brings the tally to 10 major court wins for the video game industry versus zero wins for would-be government regulators. With a track record like that you would think that government officials would get the point. But the censorial tendencies of public officials have once again trumped common sense.
This week’s win came in the 7th Circuit Court of Appeals in the case of Entertainment Software Association v. Blagojevich. (Full decision here.) The case dealt with an Illinois statute that would have required that video game retailers to affix a 4-square-inch sticker with the numerals “18” on any “sexually explicit” game. It also would have imposed criminal penalties on any retailer who sold or rented a game with that designation to a minor. The statute also included signage and brochure requirements that would have forced retailers to place certain displays in their stores and provide all customers with brochures about game ratings.
The court’s decision overturning the law was written by Judge Ann Claire Williams and it echoed what every previous decision on this front has held, namely:
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I’m getting a lot of calls from reporters this week asking about what the Democratic takeover means for technology policy issues and First Amendment matters. My answer on both counts: Not much.
On the free speech front, the results of this election will probably have very little effect. Democrats and Republicans are now birds of a feather on these matters. Democrats used to be considered the party of the First Amendment, but I have a hard time finding any defenders of the First Amendment left in that party. I spend as much time dealing with new speech regulations from Democrats like Hillary Clinton and Joe Lieberman as I do any Republican in Congress. Thus, I suspect that, despite the shift in power, Congress will continue pushing for more media and Internet regulation just as they have been for the past 10 years. It’s a never-ending cycle and the only competition left between the two parties is the race to see who can regulate faster and more extensively than the other.
On the communications and broadband regulatory front the differences may be a bit more pronounced between the parties, but not too much so. To try to get a better feel for what Democratic rule might bring us I thought I’d take a look at a few items in the “Innovation Agenda” they produced before the election. (It can be found online here and here is the PDF).
From what I see it here, it sounds like the Democrats believe that spending a lot of taxpayer dollars on federal pork projects is the best way to improve America’s technological competitiveness.
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We’ve spent a lot of time here on the TLF discussing our reservations about age verification and data retention mandates. We object on many grounds, but privacy and data security concerns are typically at the top of our list.
Government officials or others supporting mandatory data collection / retention always assure us that our personal information will be secure and that it will not fall into the wrong hands. And then something like this happens in Utah and reminds us why we were right to be concerned:
In a jaw-dropping embarrassment, the state of Utah has mistakenly divulged e-mail addresses of kids on its so-called child-protection do-not-e-mail list–a registry proponents claim is foolproof. The gaffe stems from four citations the state issued recently against companies it alleges sent e-mail to children’s addresses on its do-not-e-mail registry promoting alcohol, gambling and pornography.
According to court papers, when Justin Weiss, director of legislative affairs for the E-mail Sender and Provider Coalition, requested copies of the citations from Utah, the state complied but failed to redact the e-mail addresses of the children in the complaints. “I have no personal knowledge of how many other unredacted copies may have been sent out to other individuals that made information requests like mine,” said Weiss in an affidavit.
State officials are reportedly mortified over the incident. “A fair amount of trust has been placed with us and this is not a good thing,” Utah’s Department of Commerce Director Francis Giani reportedly told the Salt Lake Tribune. “I’m sick about it.”
As you should be. But I also hope others heed the lesson here: Despite government assurances to the contrary, government-collected personal information is never perfectly secure. That’s why we must always be vigilant about limiting how much personal information our government can get its hands on. Read Jim Harper’s fine new book, Identity Crisis: How Identification is Overused and Misunderstood, to learn more about these dangers.
Washington Post technology columnist Mike Musgrove reminds us in his column today that the video game industry’s voluntary ratings system–the Entertainment Software Rating Board (ESRB)–continues to come under fire in Washington and in the states. Musgrove notes that:
“Earlier this year, Sen. Sam Brownback (R-Kan.) was one of several lawmakers who introduced bills that would take the video game rating system away from the ESRB, but those bills never made it out of committee. Last week, at a summit on video games, youth and public policy, Rep. Betty McCollum (D-Minn.) trashed the game industry’s ratings system and called for a new, independent system. Brownback and McCollum agree that the current system–because it’s run by the game industry–can’t be trusted.”
This is nothing new, of course. I have written extensively about the politics of video game regulation and discussed how the video game ratings system has been criticized for a number of supposed shortcomings. Most recently, I wrote about Sen. Hillary Clinton (D-NY) and Sen. Joe Lieberman’s (D-CT) “Family Entertainment Protection Act” (FEPA, S. 2126), which would create a federal enforcement regime for video games sales and require ongoing regulatory scrutiny of industry ratings and practices. (Note: There was also a House version of the bill).
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This is an example of exactly the sort of sting operation that Hance and I have been saying we need a lot more of to solve the online child predator problem. Law enforcement officials have arrested 125 people nationwide as a result of a massive sting operation to root out Internet child pornography. According to the Reuters report: “Those arrested are accused of using a commercial Web site to access videos and images of hard-core pornography involving children as young as infants engaged in sexual activities with adults, according to federal officials.”
“When I say ‘hard-core’ pornography, I am talking about child pornography that includes images of children as young as six months involved in bondage and sodomy,” U.S. Attorney Christopher Christie said. “This type of depraved conduct is something a civilized society cannot tolerate.”
Amen to that. This now becomes a good case study to see if our government is really serious about this issue. Will our government do the right thing and put these scumbags behind bars for a long, long time, or will they give them a slap on the wrist and let them walk after just a few years of hard time, meaning they’ll be out on the streets and behind keyboards again soon?
As always, I say lock ’em up and throw away the key. Again, that’s the more sensible approach than the current move to regulate the Internet and social networking sites through intrusive age verification schemes or data retention mandates.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.