Today, PFF released a short new paper in which I propose a voluntary “online code of conduct” for Internet operators to help us head-off further regulation of online speech and expression. With online speech under intense attack in Washington today, I believe it is essential that industry take a bold step to preemptively address the concerns that Congress wants to handle through new legislation and regulation.
The paper can be found online here and I have attached the text of the entire essay down below.
I look forward to comments and criticisms.
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Well, here we go again. Not satisfied with the prospect of merely regulating the broadcast television and radio airwaves, Congress is poised to again introduce legislation that would extend indecency regulations to cable and satellite television. Broadcasting & Cable magazine reports today that Rep. Dan Lipinski (D-Ill.) and Tom Osborne (R-Neb.) are introducing a bill, “The Family Choice Act of 2006,” that would try to control cable content by giving the industry a choice among three regulatory approaches.
The bill would require multichannel video providers to choose one of three options:
1) apply FCC broadcast indecency standards to their own programming;
2) offer channels a la carte so subscribers could choose not to take certain channels; or
3) offer a family-friendly tier that meets the definition supplied in the bill.
Wow, now how’s that for a devil’s choice! But cable or satellite providers shouldn’t be forced to pick among these poisons because government has absolutely no rational legal or philosophical basis for imposing censorship on pay-TV providers. As I noted last June in a Washington Post editorial:
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In my college days, I majored in both journalism and political science, but I briefly flirted with the idea of a major in psychology as well. (Actually, I was just trying to extend my college partying days as long as possible but I ran out of money!) While I was briefly flirting with the idea of a psychology major, I took a psyc class that featured a brief discussion of a subject that would forever change the way I look at the world and media issues in particular: “third-person-effect hypothesis.” Simply stated, the hypothesis predicts that people tend to overestimate the influence of communications / media on the attitudes and behavior of others relative to themselves. For example, many people will see media “bias” where there is none (or very little) and they will often advocate a “re-tilting” of the news in their preferred direction. (Incidentally, in case you’re wondering, there’s plenty of research to back up the thesis.)
When I first read about this hypothesis, I experienced a profound personal epiphany; a real “ah-hah!” moment that helped me finally unlock the secret to why so many people alleged media bias where I personally saw none. Specifically, it helped me understand why good friends of mine on both the political Left and Right saw different forms of bias in the exact same news. As someone who was, and remains, rabidly independent (I’ve never voted for either major party in my life and I doubt I ever will), I was always fascinated by this. When I sat down with classmates, friends, roommates or others to watch the news, I’d witnessed endless bickering among them about supposed slant one way or the other. But, with a few exceptions, I never quite saw or heard that bias myself. I’m not saying that all news is perfectly unbiased, it’s just that a large percentage of the time it is not biased and yet people argue that it is, but in decidedly different ways and directions.
What explains this? The answer is “third-person-effect hypothesis” and “hostile media effect” theory. To explain, let me step back and begin by telling you what got me thinking about this again.
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Here’s my blog on ipcentral regarding Nick’s comments on the cleanflicks case, with which I respectfully disagree.
Those wacky Chinese officials are at it again. Apparently they’ve grown tired of just pestering those curious critters who type “Tiananmen Square” or “Falun Gong” into their search engines. So, they’re upping the ante and going after anyone who reports on natural disasters, industrial accidents, or health and security hazards without prior state permission.
Yes, you read that right: Reporting the news will soon be a crime in China. According to this report in today’s Wall Street Journal, a new bill being considered in China’s Parliament would “make reports on the handling of and status of public emergencies without approval” or “issue false reports” punishable by fines of between $6,000 and $12,000.
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[This essay builds on Friday’s blog entry on “Social Networking and Child Protection.”]
At last week’s National Center for Missing and Exploited Children conference entitled “A Dialog on Social Networking Web Sites,” several law enforcement officials argued that expanded data retention mandates were needed to adequately police online networks and websites for potentially criminal activity. (In this case, child pornography or child predators were the concern, but data retention has also been proposed as a way to police online networks for terrorist activities among other things).
This push for expanded data retention was hardly surprising. In recent months, members of Congress and the Department of Justice have floated new proposals to require Internet Service Providers (ISP) and others (including search engines and social networking sites) to retain data on their customers and traffic flows for long periods (typically between 6 months and two years). These proposals mimic data retention laws that are being implemented in the European Union.
Let’s step back and consider this issue from two very different perspectives.
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Yesterday I spoke at a National Center for Missing and Exploited Children conference entitled “A Dialog on Social Networking Web Sites.” It featured dozens of industry, technology, law enforcement and government experts discussing how to protect children on social networking sites. I spoke on the final panel of the day on “The Public Policy Challenges of Social Networking” and was up against two state AGs: Connecticut Attorney General Richard Blumenthal and North Carolina Attorney General Roy Cooper. They both favored various regulatory measures to address concerns about online safety, including a complete ban on anyone under the age of 16 on social networking websites.
My response follows.
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FCC Chairman Martin’s push to impose “multicast” must-carry rules on cable providers looked like a done deal only a few days ago. Martin had made the the new mandate a priority, and with two new Republican members of the commission sworn in, its looked like Martin would certainly be able to get a majority to support him. He had even scheduled a vote for Wednesday, usually a sure sign that the votes were in the bag.
As it turned out, however, the bag was empty. The reason: Robert McDowell, who joined the commission only three weeks ago, said “no.” According to National Journal, sources said that McDowell “sees much benefit from the cable industry voluntarily agreeing to carry broadcasters’ multicasts and prefers a private sector solution.” Moreover, he was said to be unsure of the legality of the proposed regulation. Since the two Democrats apparently also opposed the move, that left Martin without a majority.
Hooray for the new guy. Forcing cable companies to carry multiple TV signals from each broadcaster over their systems is a bad idea. First, consumers would be worse off, since these channels would displace other channels consumers presumably prefer. (Note that cable firms actually pay broadcasters for the right to carry channels that are popular. By definition, we are talking about the unpopular ones here).
Moreover, the rules would violate the constitution. By actual count, multi-cast must-carry likely violates two amendments–the fifth amendment (taking of property) and the first (free speech). Do the math. That’s 20 percent of the bill of rights. Pretty good for one regulation. They might as well add in something about quartering troops and go for a trifecta.
Commissioner McDowell, you were right to block this. Welcome to the FCC, by the way. Glad to have you aboard.
If you thought the FCC’s regime of speech controls for broadcast television and radio was arbitrary and excessive, then just wait till we give similar authority to the Federal Trade Commission (FTC) to regulate video game content! That’s apparently what House Telecommunications Subcommittee Chairman Fred Upton (R-Mich) plans to do.
According to Broadcasting & Cable magazine, he is preparing a bill to give the FTC greater authority to fine video game manufacturers if they contain objectionable content. Barton, you will recall, was the sponsor of the recently passed Broadcast Decency Enforcement Act, which raised the fines that FCC could impose on broadcasters 10-fold. Apparently, he wants to give the FTC greater powers because he is angry about the agency’s recent decision in the “Grand Theft Auto” investigation. He said that the FTC’s action “wasn’t even a slap on the wrist” and that millions of dollars of fines should have been levied.
It’s just more bad news for the video game industry and fans of the First Amendment. (Here’s my recent paper summarizing some of the other threats the industry faces).
On the First Amendment front, the big news coming out of Washington this week was that, well… your government still doesn’t really believe in the First Amendment! President Bush signed into law a massive increase in broadcast “indecency” penalties. The new law, called the Broadcast Indecency Enforcement Act, would boost the fines that the Federal Communications Commission could impose on television and radio broadcasters from a current maximum of $32,500 to $325,000–a 10-fold increase.
No surprise here, of course. It’s an election year and this sort of thing wins you brownie points with certain constituencies. While I don’t want to get into an extended legal analysis about why I think all this will eventually be struck down by the courts–see this essay for that discussion–I just want to point out, for the umpteenth time, the radically unfair and illogical nature of all this. Let’s just lay out the current state of affairs in terms First Amendment protection in America:
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.