A growing number of conservatives are calling for Big Government censorship of social media speech platforms. Censorship proposals are to conservatives what price controls are to radical leftists: completely outlandish, unworkable, and usually unconstitutional fantasies of controlling things that are ultimately much harder to control than they realize. And the costs of even trying to impose and enforce such extremist controls are always enormous.

Earlier this year, The Wall Street Journal ran a response I wrote to a proposal set forth by columnist Peggy Noonan in which she proposed banning everyone under 18 from all social-media sites (“We Can Protect Children and Keep the Internet Free,” Apr. 15). I expanded upon that letter in an essay here entitled, “Should All Kids Under 18 Be Banned from Social Media?” National Review also recently published an article penned by Christine Rosen in which she also proposes to “Ban Kids from Social Media.” And just this week, Zach Whiting of the Texas Public Policy Foundation published an essay on “Why Texas Should Ban Social Media for Minors.”

I’ll offer a few more thoughts here in addition to what I’ve already said elsewhere. First, here is my response to the Rosen essay. National Review gave me 250 words to respond to her proposal:

While admitting that “law is a blunt instrument for solving complicated social problems,” Christine Rosen (“Keep Them Offline,” June 27) nonetheless downplays the radicalness of her proposal to make all teenagers criminals for accessing the primary media platforms of their generation. She wants us to believe that allowing teens to use social media is the equivalent of letting them operate a vehicle, smoke tobacco, or drink alcohol. This is false equivalence. Being on a social-media site is not the same as operating two tons of steel and glass at speed or using mind-altering substances. Teens certainly face challenges and risks in any new media environment, but to believe that complex social pathologies did not exist before the Internet is folly. Echoing the same “lost generation” claims made by past critics who panicked over comic books and video games, Rosen asks, “Can we afford to lose another generation of children?” and suggests that only sweeping nanny-state controls can save the day. This cycle is apparently endless: Those “lost generations” grow up fine, only to claim it’s the  next generation that is doomed! Rosen casually dismisses free-speech concerns associated with mass-media criminalization, saying that her plan “would not require censorship.” Nothing could be further from the truth. Rosen’s prohibitionist proposal would deny teens the many routine and mostly beneficial interactions they have with their peers online every day. While she belittles media literacy and other educational and empowerment-based solutions to online problems, those approaches continue to be a better response than the repressive regulatory regime she would have Big Government impose on society.

I have a few more things to say beyond these brief comments.

First, as I alluded to in my short response to Rosen, we’ve heard similar “lost generation” stories before. Rosen might as well be channeling the ghost of Dr. Fredric Wertham (author of Seduction of the Innocent), who in the 1950s declared comics books a public health menace and lobbied lawmakers to restrict teen access to them, insisting such comics were “the cause of a psychological mutilation of children.” The same sort of “lost generation” predictions were commonplace in countless anti-video game screeds of the 1990s. Critics were writing books with titles like Stop Teaching Our Kids to Kill and referring to video games as “murder simulators,” Ironically, just as the video game panic was heating up, juvenile crime rates were plummeting. But that didn’t stop the pundits and policymakers from suggesting that an entire generation of so-called “vidiots” were headed for disaster. (See my 2019 short history: “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics“).

It is consistently astonishing to me how, as I noted in 2012 essay, “We Always Sell the Next Generation Short.” There seems to be a never-ending cycle of generational mistrust. “There has probably never been a generation since the Paleolithic that did not deplore the fecklessness of the next and worship a golden memory of the past,” notes Matt Ridley, author of The Rational Optimist.

For example, in 1948, the poet T. S. Eliot declared: “We can assert with some confidence that our own period is one of decline; that the standards of culture are lower than they were fifty years ago; and that the evidences of this decline are visible in every department of human activity.” We’ve heard parents (and policymakers) make similar claims about every generation since then.

What’s going on here? Why does this cycle of generational pessimism and mistrust persist? In a 1992 journal article, the late journalism professor Margaret A. Blanchard offered this explanation:

“[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.”

In a 2009 book on culture, my colleague Tyler Cowen also noted how, “Parents, who are entrusted with human lives of their own making, bring their dearest feelings, years of time, and many thousands of dollars to their childrearing efforts.” Unsurprisingly, therefore, “they will react with extreme vigor against forces that counteract such an important part of their life program.” This explains why “the very same individuals tend to adopt cultural optimism when they are young, and cultural pessimism once they have children,” Cowen says.

Building on Blanchard and Cowen’s observation, I have explained how the most simple explanation for this phenomenon is that many parents and cultural critics have passed through their “adventure window.” The willingness of humans to try new things and experiment with new forms of culture—our “adventure window”—fades rapidly after certain key points in life, as we gradually settle in our ways. As the English satirist Douglas Adams once humorously noted: “Anything that is in the world when you’re born is normal and ordinary and is just a natural part of the way the world works. Anything that’s invented between when you’re fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. Anything invented after you’re thirty-five is against the natural order of things.”

There is no doubt social media can create or exacerbate certain social pathologies among youth. But pro-censorship conservatives wants to take the easy way out with a Big Government media ban for the ages.

Ultimately, it’s a solution that will not be effective. Raising children and mentoring youth is certainly the hardest task we face as adults because simple solutions rarely exist to complex human challenges–and the issues kids face are often particularly hard for many parents and adults to grapple with because we often fail to fully understand both the unique issues each generation might face, and we definitely fail to fully grasp the nature of each new medium that youth embrace.  Simplistic solution–even proposals for outright bans–will not work or solve serious problems.

An outright government ban on online platforms or digital devices is likely never going to happen due to First Amendment constraints, but even ignoring the jurisprudential barriers, bans won’t work for a reason that these conservatives never bother considering: Many parents will help their kids get access to those technologies and to evade restrictions on their use. Countless parents already do so in violation of COPPA rules, and not just because they worry that their kid won’t have access to what some other kids have. Rather, many parents (like me) both wanted to make sure I could more easily communicate with them, and also ensure that they could enjoy those technologies and use them to explore the world.

These conservatives might think some parents like me are monsters for allowing my (now grown) children to get on social media when they were teens. I wasn’t blind to the challenges, but recognized that sticking one’s head in the ground or hoping for divine intervention from the Nanny State was impractical and unwise. The hardest conversations I ever had with my kids were about the ugliness they sometimes experienced online, but those conversations were also countered by the many joys that I knew online interactions brought them. Shall I tell you about everything my son learned online before 13 about building model rockets or soapbox derby cars? Or the countless sites my daughter visited gathering ideas for her arts and crafts projects when, before the age of 13, she started hand-painting and selling jean jackets (eventually prompting her to pursue an art school degree)? Again, as I noted in my National Review response, Rosen’s prohibitionist proposal would deny teens these experiences and the countless other routine and entirely beneficial interactions that they have with their peers online every day.

There is simply no substitute for talking to your kids in the most open, understanding, and loving fashion possible. My #1 priority with my own children was not foreclosing all the new digital media platforms and devices at their disposal. That was going to be almost impossible. Other approaches are needed.

Yes, of course, the world can be an ugly place. I mean, have you ever watched the nightly news on television? It’s damn ugly. Shouldn’t we block youth access to it when scenes of war and violence are shown? Newspapers are full of ugliness, too. Should a kid be allowed to see the front page of the paper when it discusses or shows the aftermath of school shootings, acts of terrorism, or even just natural disasters? I could go on, but you get the point. And you could try to claim that somehow today’s social media environment is significantly worse for kids than the mass media of old, but you cannot prove it.

Of course you’ll have anecdotes, and many of them will again point to complex social pathologies. But I have entire shelves full of books on my office wall that made similar claims about the effects of books, the telephone, radio and television, comics, cable TV, every musical medium ever, video games, and advertising efforts across all these mediums. Hundreds upon hundreds of studies were done over the past half century about the effects of depictions of violence in movies, television, and video games. And endless court battles ensued.

In the end, nothing came out of it because the literature was inconclusive and frequently contradictory. After many years of panicking about youth and media violence, in 2020, the American Psychological Association issued a new statement slowly reversing course on misguided past statements about video games and acts of real-world violence. The APA’s old statement said that evidence “confirms [the] link between playing violent video games and aggression.”  But the APA has come around and now says that, “there is insufficient scientific evidence to support a causal link between violent video games and violent behavior.” More specifically, the APA now says: “Violence is a complex social problem that likely stems from many factors that warrant attention from researchers, policy makers and the public. Attributing violence to violent video gaming is not scientifically sound and draws attention away from other factors.”

This is exactly what we should expect to find true for youth and social media. Most of the serious scholars in the field already note studies and findings about youth and social media must be carefully evaluated and that many other factors need to be considered whenever evaluating claims about complex social phenomenon.

While Rosen belittles media literacy and other educational and empowerment-based solutions to online problems, those approaches continue to represent the best first-order response when compared to the repressive regulatory regime she would impose on society.

Finally, I want to just reiterate what I said in my brief  National Review response about the enormous challenges associated with mass criminalization or speech platforms. Rosen seems to image that all the costs and controversies will lie on the supply-side of social media. Just call for a ban and then magically all kids disappear from social media and the big evil tech capitalists eat all the costs and hassles. Nonsense. It’s the demand-side of criminalization efforts where the most serious costs lie. What do you really think kids are going to do if Uncle Sam suddenly does ban everyone under 18 from going on a “social media site,” whatever that very broad term entails? This will become another sad chapter in the history of Big Government prohibitionist efforts that fail miserably, but not before declaring mass groups of people criminals–this time including everyone under 18–and then trying to throw the book at them when they seek to avoid those repressive controls. There are better ways to address these problems than with such extremist proposals.

Additional Reading from Adam Thierer on Media & Content Regulation :

• “Should All Kids Under 18 Be Banned from Social Media?”
• “Why Do We Always Sell the Next Generation Short?”
• “The APA’s Welcome New Statement on Video Game Violence“
• “Video Games and Moral Panic“
• Parental Controls & Online Child Protection: A Survey of Tools & Methods, 4th Edition.
• “Technopanics and the Great Social Networking Scare“
• “More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime“
• “Video Games, Media Violence & the Cathartic Effect Hypothesis.”)
• “The Classical Liberal Approach to Digital Media Free Speech Issues“
• “Left and right take aim at Big Tech — and the First Amendment“
• “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“
• “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“
• “Conservatives & Common Carriage: Contradictions & Challenges“
• “The Great Deplatforming of 2021“
• “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“
• “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“
• “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“
• “Sen. Hawley’s Moral Panic Over Social Media“
• “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“
• “The Not-So-SMART Act“
• “The Surprising Ideological Origins of Trump’s Communications Collectivism“

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” Catholic University Law School, 15 CommLaw Conspectus (Summer 2007): 431-482.
• Testimony at FCC’s Hearing on “Serving the Public Interest in the Digital Era”, March 3, 2010.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,”

This weekend, The Wall Street Journal ran my short letter to the editor entitled, “We Can Protect Children and Keep the Internet Free.” My letter was a response to columnist Peggy Noonan’s April 9 oped, “Can Anyone Tame Big Tech?” in which she proposed banning everyone under 18 from all social-media sites. She specifically singled out TikTok, Youtube, and Instagram and argued “You’re not allowed to drink at 14 or drive at 12; you can’t vote at 15. Isn’t there a public interest here?”

I briefly explained why Noonan’s proposal is neither practical nor sensible, noting how it:

would turn every kid into an instant criminal for seeking access to information and culture on the dominant medium of their generation. I wonder how she would have felt about adults proposing to ban all kids from listening to TV or radio during her youth. Let’s work to empower parents to help them guide their children’s digital experiences. Better online-safety and media-literacy efforts can prepare kids for a hyperconnected future. We can find workable solutions that wouldn’t usher in unprecedented government control of speech.

Let me elaborate just a bit because this was the focus of much of my writing a decade ago, including my book, Parental Controls & Online Child Protection: A Survey of Tools & Methods, which spanned several editions. Online child safety is a matter I take seriously and the concerns that Noonan raised in her oped have been heard repeatedly since the earliest days of the Internet. Regulatory efforts were immediately tried. They focused on restricting underage access to objectionable online content (as well as video games), but were immediately challenged and struck down as unconstitutionally overbroad restrictions on free speech and a violation of the First Amendment of the U.S. Constitution.

But practically speaking, most of these efforts were never going to work anyway. There was almost no way to bottle up all the content flowing in the modern information ecosystem without highly repressive regulation, and it was going to be nearly impossible to keep kids off the Internet altogether when it was the dominant communications and entertainment medium of their generation. The first instinct of every moral panic wave–from the waltz to comic books to rock or rap music to video games–has often been to take the easy way out by proposing sweeping bans on all access by kids to the content or platforms of their generation. It never works.

Nor should it. There is a huge amount of entirely beneficial speech, content, and communications that kids would be denied by such sweeping bans. That would make such ban highly counter-productive. But, again, usually such efforts just were not practically enforceable because kids are often better at the cat-and-mouse game than adults give them credit for. Moreover, imposing age limitations of speech or content are far more difficult than age-related bans on specific tangible products, like tobacco or other dangerous physical products.

Acknowledging these realities, most sensible people quickly move on from extreme proposals like flat bans of all kids using the popular media platforms and systems of the day. Over the past half century in the U.S., this has led to a flowering of more decentralized governance approach to kids and media that I have referred to as the “3E approach.” That stands for empowerment (of parents), education (of youth), and enforcement (of existing laws). The 3E approach includes a variety of mechanisms and approaches, including: self-regulatory codes, private content rating systems, a wide variety of different parental control technologies, and much more.

Over the past two decades, many multistakeholder initiatives and blue-ribbon commissions were created to address online safety issues in a holistic fashion. I summarized their conclusions in my 2009 report, “Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer.” The crucial takeaway from all these task forces and commissions is that no silver-bullet solutions exist to hard problems. Child safety demands a vigilant but adaptive approach, rooted in a variety of best practices, educational approaches, and technological empowerment solutions to address various safety concerns. Digital literacy is particularly crucial to building wiser, more resilient kids and adults, who can work together to find constructive approaches to hard problems.

Importantly, our task here is never done. This is an ongoing and evolving process. Issues like underage access to pornography or violent content have been with us for a very long time and will never be completely “solved.” We must constantly work to improve existing online safety mechanisms while also devising new solutions for our rapidly evolving information ecosystem. Nothing should be off the table except the one solution that Noonan suggested in her essay. Just proposing outright bans on kids on social media or any other new media platform (VR will be next) is an unworkable and illogical response that we should dismiss fairly quickly. No matter how well-intentioned such proposals may be, moral panic-induced prohibitions on kids and media ultimately are not going to help them learn to live better, safer, and more enriching lives in the new media ecosystems of today or the future. We can do better.

I’ve spent a lot of time here through the years trying to identify the factors that fuel moral panics and “technopanics.” (Here’s a compendium of the dozens of essays I’ve written here on this topic.) I brought all this thinking together in a big law review article (“Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle”) and then also in my new booklet, “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom.”

One factor I identify as contributing to panics is the fact that “bad news sells.” As I noted in the book, “Many media outlets and sensationalist authors sometimes use fear-based tactics to gain influence or sell books. Fear mongering and prophecies of doom are always effective media tactics; alarmism helps break through all the noise and get heard.”

In line with that, I want to highly recommend you check out this excellent new oped by John Stossel of Fox Business Network on “Good News vs. ‘Pessimism Porn‘.”  Stossel correctly notes that “the media win by selling pessimism porn.” He says:

Are you worried about the future? It’s hard not to be. If you watch the news, you mostly see violence, disasters, danger. Some in my business call it “fear porn” or “pessimism porn.” People like the stuff; it makes them feel alive and informed. Of course, it’s our job to tell you about problems. If a plane crashes — or disappears — that’s news. The fact that millions of planes arrive safely is a miracle, but it’s not news. So we soak in disasters — and warnings about the next one: bird flu, global warming, potential terrorism. I won Emmys hyping risks but stopped winning them when I wised up and started reporting on the overhyping of risks. My colleagues didn’t like that as much.

He continues on to note how, even though all the data clearly proves that humanity’s lot is improving, the press relentlessly push the “pessimism porn.” He argues that “time and again, humanity survived doomsday. Not just survived, we flourish.” But that doesn’t stop the doomsayers from predicting that the sky is always set to fall. In particular, the press knows they can easily gin up more readers and viewers by amping up the fear-mongering and featuring loonies who will be all too happy to play the roles of pessimism porn stars. Of course, plenty of academics, activists, non-profit organizations and even companies are all too eager to contribute to this gloom-and-doom game since they benefit from the exposure or money it generates.

The problem with all this, of course, is that it perpetuates societal fears and distrust. It also sometimes leads to misguided policies based on hypothetical worst-case thinking. As I argue in my new book, which Stossel was kind enough to cite in his essay, if we spend all our time living in constant fear of worst-case scenarios—and premising public policy upon them—it means that best-case scenarios will never come about.

Facts, not fear, should guide our thinking about the future.

______________________

Related Reading:

• Journalists, Technopanics & the Risk Response Continuum (July 15, 2012)
• How & Why the Press Sometimes “Sells Digital Fear” (April 8, 2012)
• danah boyd’s “Culture of Fear” Talk (March 26, 2012)
• Prophecies of Doom & the Politics of Fear in Cybersecurity Debates (Aug. 8., 2011)
• Cybersecurity Threat Inflation Watch: Blood-Sucking Weapons! (March 22, 2012)

There was an important article about online age verification in The New York Times yesterday entitled, “Verifying Ages Online Is a Daunting Task, Even for Experts.” It’s definitely worth a read since it reiterates the simple truth that online age verification is enormously complicated and hugely contentious (especially legally). It’s also worth reading since this issue might be getting hot again as Facebook considers allowing kids under 13 on its site.

Just five years ago, age verification was a red-hot tech policy issue. The rise of MySpace and social networking in general had sent many state AGs, other lawmakers, and some child safety groups into full-blown moral panic mode. Some wanted to ban social networks in schools and libraries (recall that a 2006 House measure proposing just that actually received 410 votes, although the measure died in the Senate), but mandatory online age verification for social networking sites was also receiving a lot of support. This generated much academic and press inquiry into the sensibility and practicality of mandatory age verification as an online safety strategy. Personally, I was spending almost all my time covering the issue between late 2006 and mid-2007. The title of one of my papers on the topic reflected the frustration many shared about the issue: “Social Networking and Age Verification: Many Hard Questions; No Easy Solutions.”

Simply put, too many people were looking for an easy, silver-bullet solution to complicated problems regarding how kids get online and how to keep them safe once they get there. For a time, age verification became that silver bullet for those who felt that “we must do something” politically to address online safety concerns. Alas, mandatory age verification was no silver bullet. As I summarized in this 2009 white paper, “Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” all previous research and task force reports looking into this issue have concluded that a diverse toolbox and a “layered approach” must be brought to bear on these problems. There are no simple fixes. Specifically, here’s what each of the major online child safety task forces that have been convened since 2000 had to say about the wisdom of mandatory age verification:

2000 – Commission on Online Child Protection (“COPA Commission”)

“[Age verification] imposes moderate costs on users, who must get an I.D. It imposes high costs on content sources that must install systems and might pay to verify I.D.s. The adverse effect on privacy could be high. It may be lower than for credit card verification if I.D.s are separated from personally-identifiable information. Uncertainty about the application of a harmful to minors standard increases the costs incurred by harmful to minors sites in connection with such systems.  An adverse impact on First Amendment values arises from the costs imposed on content providers, and because requiring identification has a chilling effect on access. Central collection of credit card numbers coupled with the “embarrassment effect” of reporting fraud and the risk that a market for I.D.s would be created may have adverse effect on law enforcement.”

2002 – Youth, Pornography, and the Internet (“Thornburgh Commission”)

“In an online environment, age verification is much more difficult because a pervasive nationally available infrastructure for this purpose is not available. […] Note that each of these [age verification] methods imposes a cost in convenience of use, and the magnitude of this cost rises as the confidence in age verification increases.” (p. 63-4)

2008 – Safer Children in a Digital World (“Byron Review”)

“[N]o existing approach to age verification is without its limitations, so it is important that we do not fixate on age verification as a potential ‘silver bullet.’” (p. 99)

2009 – Internet Safety Technical Task Force (ISTTF)”

Age verification and identity authentication technologies are appealing in concept but challenged in terms of effectiveness.  Any system that relies on remote verification of information has potential for inaccuracies.  For example, on the user side, it is never certain that the person attempting to verify an identity is using their own actual identity or someone else’s.  Any system that relies on public records has a better likelihood of accurately verifying an adult than a minor due to extant records.  Any system that focuses on third-party in-person verification would require significant political backing and social acceptance.  Additionally, any central repository of this type of personal information would raise significant privacy concerns and security issues.” (p. 10)

2009 – “Point Smart. Click Safe” Blue Ribbon Working Group

“The task force acknowledges that the issues of identity authentication and age verification remain substantial challenges for the Internet community due to a variety of concerns including privacy, accuracy, and the need for better technology in these areas.”

2010 – Youth Safety on a Living Internet: Repost of the Online Safety and Technology Working Group (“OSTWG“)

“There is no quick fix or “silver bullet” solution to child safety concerns, especially given the rapid pace of change in the digital world. A diverse array of protective tools are currently available today to families, caretakers, and schools to help encourage better online content and communications. They are most effective as part of a “layered” approach to child online safety. The best of these technologies work in tandem with educational strategies, parental involvement, and other approaches to guide and mentor children, supplementing but not supplanting the educational and mentoring roles.”  […] “age verification is not only not effective but not necessarily advisable. There was some evidence presented to the (ISTTF) Task Force that it might actually endanger youth by keeping adult guidance or supervision out of online spaces where peer-on-peer harassment or cyberbullying could occur.” (p. 7, 27)

This makes it clear that there is near-universal consensus that mandatory age verification is not the smart path forward. In my closing statement to the Harvard Berkman Center Internet Safety Technical Task Force, of which I was a member, I actually went even further and argued that mandatory age verification represents a dangerous solution to concerns about online child safety because it:

1. Won’t Work: Mandatory age verification will not work as billed. For the reasons detailed below, it will fail miserably and create more problems than it will solve.
2. Will Create a False Sense of Security: Because it will fail, mandatory age verification will create a false sense of security for parents and kids alike. It will lead them to believe they are entering “safe spaces” simply because someone has said users are “verified.”
3. Is Not a Background Check: Moreover, even if age verification did work as billed, it is important to realize it is not synonymous with a complete background check. In other words, even if the verification process gets the age part of the process right, that tells us little else about the person being verified.
4. Is a Grave Threat to Privacy: Mandatory age verification is dangerous because it would require that even more personal information (about kids, no less) be put online at a time when identity theft and privacy violations continue to be a major concern.
5. Will Seriously Misallocate Resources: Devising and enforcing age verification regulations might also divert valuable time and resources that could be better used to focus on education and awareness-building efforts, especially K-12online safety and media literacy education. Moreover, it might divert law enforcement energy and resources away from policing serious crimes or more legitimate threats to children

I went on to post  “10 Questions about Age Verification that the AGs Must Answer” if they continued their foolish pursuit of this misguided silver bullet (non-)solution. Instead of repeating them all here, I have simply appended my closing statement to this post. [see Scribd embed below].

In closing, I remain convinced that nothing on the ground has changed since back then. All the traditional age verification schemes remain highly flawed, and the more sophisticated age verification systems (tapping school records and using biometric identifiers to create “digital passports,” for example), would have rather obvious downsides and still not likely be effective in practice. In the end, there is simply no substitute for an education and awareness-based approach to online safety that relies on parental mentoring, digital literacy / digital citizenship, and better social norms and self-regulation.  Techno-silver bullets will always fail.

ISTTF Thierer Closing Statement

[UPDATE: 2/14/2013: As noted here, this paper was published by the Minnesota Journal of Law, Science & Technology in their Winter 2013 edition. Please refer to that post for more details and cite this final version of the paper going forward.]

I’m pleased to report that the Mercatus Center at George Mason University has just released my huge new white paper, “Technopanics, Threat Inflation, and the Danger of an Information Technology Precautionary Principle.” I’ve been working on this paper for a long time and look forward to finding it a home in a law journal some time soon.  Here’s the summary of this 80-page paper:

Fear is an extremely powerful motivating force, especially in public policy debates where it is used in an attempt to sway opinion or bolster the case for action. Often, this action involves preemptive regulation based on false assumptions and evidence. Such fears are frequently on display in the Internet policy arena and take the form of full-blown “technopanic,” or real-world manifestations of this illogical fear. While it’s true that cyberspace has its fair share of troublemakers, there is no evidence that the Internet is leading to greater problems for society. This paper considers the structure of fear appeal arguments in technology policy debates and then outlines how those arguments can be deconstructed and refuted in both cultural and economic contexts. Several examples of fear appeal arguments are offered with a particular focus on online child safety, digital privacy, and cybersecurity. The  various  factors  contributing  to  “fear  cycles”  in these policy areas are documented. To the extent that these concerns are valid, they are best addressed by ongoing societal learning, experimentation, resiliency, and coping strategies rather than by regulation. If steps must be taken to address these concerns, education and empowerment-based solutions represent superior approaches to dealing with them compared to a precautionary principle approach, which would limit beneficial learning opportunities and retard technological progress.

The complete paper can be found on the Mercatus site here, on SSRN, or on Scribd.  I’ve also embedded it below in a Scribd reader.

Technopanics and Threat Inflation [Adam Thierer – Mercatus Center]

By Berin Szoka & Adam Thierer

This morning, The Progress & Freedom Foundation (PFF) and the Electronic Frontier Foundation (EFF) filed joint comments with the Federal Communications Commission (FCC) in the inquiry “Empowering Parents and Protecting Children in an Evolving Media Landscape.” (MB Docket No. 09-194)  As Adam summarized here before, the stated purpose of this FCC Notice of Inquiry is to:

seek information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks [and] to gather data and recommendations from experts, industry, and parents that will enable us to identify actions that all stakeholders can take to enable parents and children to navigate this promising electronic media landscape safely and successfully.

In our joint comments with Lee Tien and Seth David Schoen of EFF, we warned that the FCC should tread carefully when considering taking action on areas described in their inquiry. The agency simply has no authority to act on many of the topics discussed throughout the NOI, and it should not attempt to preempt successful private sector solutions. Congress never authorized the Commission to regulate Internet media, nor asked the agency to consider doing so.  In fact, Congress plainly declared that the Internet should be kept “unfettered by Federal or State regulation.”

Any regulation of online media would also fail to pass First Amendment scrutiny, as there are less restrictive means than government regulation to control minors’ access to objectionable content.  In addition, any mandate on content creators or access providers to rate or tag content would constitute compelled speech.

In response to the agency’s request for comments on the awareness and adoption of parental control technologies, we catalog the diverse array of tools and methods available to parents to tailor their exposure to potentially objectionable media and advertising, but advise that only a small percentage of U.S. households potentially need such technologies.  We also warn against a government-run content ratings system because of the overwhelming volume of content available online and because content outside the U.S. would be outside the government’s jurisdiction but just as easily accessible.

Finally, we also respond to the agency’s questions concerning children and advertising, explaining that, in addition to jurisdictional and First Amendment concerns, increased regulation of advertisements could have a negative impact on the production of children’s programming and content, since the majority of this content is supported by advertising or, on the Internet, flows over platforms like YouTube and Facebook that are supported by advertising.

In light of such concerns, “the Commission should continue what it began with its Child Safe Viewing Act Notice by expanding information and education about existing tools and ratings systems and encouraging parents to use these tools and methods and to talk to their children about appropriate media use,” we conclude.  “Beyond that narrow Congressionally-sanctioned mission, the Commission should tread cautiously.”

Read the entire filing here or down below in the Scribd reader.

PFF-EFF Response to FCC Empowering Parents Protecting Children NOI MB 09-194 http://d1.scribdassets.com/ScribdViewer.swf

Rep. Bart Stupak, (D-MI) recently introduced the ‘‘Online Age Verification and Child Safety Act’’ (H.R. 4059), which would require mandatory online age verification for “any pornographic website accessible by any computer located within the United States to display any pornographic material, including free content that may be available prior to the purchase of a subscription or product.”  The measure does not specify how such verification is to be administered, saying only that “any website or online service” must “establish and maintain a system of internal policies, procedures and controls to ensure that no such material is displayed to any user attempting to access their site without first verifying that the user is 18 years or older.”

In essence, the Stupak bill is the “Son of COPA,” or the Child Online Protection Act of 1998, a law that has been constitutionally tested and come up short during an epic, decade-long legal battle in which it was made clear that mandatory age verification is unwise, unworkable, and unconstitutional under the First Amendment.

COPA sought to make it a crime for someone to “knowingly” place materials online that were “harmful to minors.” The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict[ ] access by minors to material that is harmful to minors” using credit cards or age verification schemes. COPA was immediately challenge, however, and a 10-year court battle ensued.  The law was blocked by lower courts because it was too sweeping in effect and because courts held that there were other “less restrictive means” that parents could use to deal with objectionable content — such as Internet filters.

COPA’s decade-long legal battle finally concluded in January 2009 when the U.S. Supreme Court refused to revisit the law.  COPA had already been reviewed by the Supreme Court twice before — in 2002 and 2004.  Thus, a third visit to the Supreme Court by COPA would have been something of a historical development in the world of First Amendment jurisprudence. But with the Supreme Court’s rejection of the government’s appeal in January, lower court rulings stood and COPA remained unconstitutional and unenforceable. The key recent legal battle occurred in the Third Circuit Court of Appeals, which upheld a lower court ruling striking down COPA. The Third Circuit’s full decision is here. And I penned a 3-part series on the lower court ruling by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, here, here, and here. Also make sure to check out this summary of COPA’s legal journey that Alex Harris penned last November.

Many, many times here before I have documented my serious ongoing reservations about mandatory age verification.  [In particular, see this lengthy white paper and this event transcript for all the details.]  Moreover, as I pointed out in a recent PFF white paper (“Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer“), every major online safety task force that has studied the possibility of mandatory age verification for the Internet has come to the same conclusion: It won’t work, it’s unconstitutional, and it raises serious privacy concerns. Down below the fold I have pulled some of the relevant language from the five online safety task forces that have met since 2000 and considered this issue.  Some of the very best minds in academia, industry, government, and the child safety community sat on these task forces.  And, taken together, these five task forces heard from hundreds of experts and produced thousands of pages of testimony and reports on a wide variety of issues related to online child safety.

I would hope that Mr. Stupak and other lawmakers would heed the warnings about mandatory age verification that these task forces issued.  Read on for brief look at what the experts had to say. And as you do, remember that every dollar spent litigating another misguided attempt to mandate online age verification is another dollar that could be spent on education and empowerment solutions or other law enforcement strategies, all of which could be put in place immediately to make our kids safer online.

2000 – Commission on Online Child Protection (“COPA Commission”)

[Age verification] imposes moderate costs on users, who must get an I.D. It imposes high costs on content sources that must install systems and might pay to verify I.D.s. The adverse effect on privacy could be high. It may be lower than for credit card verification if I.D.s are separated from personally-identifiable information. Uncertainty about the application of a harmful to minors standard increases the costs incurred by harmful to minors sites in connection with such systems.  An adverse impact on First Amendment values arises from the costs imposed on content providers, and because requiring identification has a chilling effect on access. Central collection of credit card numbers coupled with the “embarrassment effect” of reporting fraud and the risk that a market for I.D.s would be created may have adverse effect on law enforcement.[1]

2002 – Youth, Pornography, and the Internet (“Thornburgh Commission”)

In an online environment, age verification is much more difficult because a pervasive nationally available infrastructure for this purpose is not available. […] Note that each of these [age verification] methods imposes a cost in convenience of use, and the magnitude of this cost rises as the confidence in age verification increases.[2]

2008 – Safer Children in a Digital World (“Byron Review”)

[N]o existing approach to age verification is without its limitations, so it is important that we do not fixate on age verification as a potential ‘silver bullet’.[3]

2009 – Internet Safety Technical Task Force (ISTTF)

Age verification and identity authentication technologies are appealing in concept but challenged in terms of effectiveness.  Any system that relies on remote verification of information has potential for inaccuracies.  For example, on the user side, it is never certain that the person attempting to verify an identity is using their own actual identity or someone else’s.  Any system that relies on public records has a better likelihood of accurately verifying an adult than a minor due to extant records.  Any system that focuses on third-party in-person verification would require significant political backing and social acceptance.  Additionally, any central repository of this type of personal information would raise significant privacy concerns and security issues.[4]

2009 – “Point Smart. Click Safe.” Blue Ribbon Working Group

The task force acknowledges that the issues of identity authentication and age verification remain substantial challenges for the Internet community due to a variety of concerns including privacy, accuracy, and the need for better technology in these areas.[5]

[2] Computer Science and Telecommunications Board, National Research Council, Youth, Pornography and the Internet (Washington, DC: National Academy Press, 2002), at 63-4, www.nap.edu/html/youth_internet/

[3] Safer Children in a Digital World: The Report of the Byron Review, March 27, 2008, at 99.  www.dcsf.gov.uk/byronreview

[4] Internet Safety Technical Task Force, Enhancing Child Safety & Online Technologies: Final Report of the Internet Safety Technical Task Force to the Multi-State Working Group on Social Networking of State Attorneys General of the United States, Dec. 31, 2008, at 10, http://cyber.law.harvard.edu/pubrelease/isttf.

[5] www.pointsmartclicksafe.org/report

[NOTE: Follow H.R. 4059 and comment on it over at Washington Watch.]

ATTACHMENT: Final Statement of Adam D. Thierer on Age Verification to the Internet Safety Technical Task Force

ISTTF Thierer Closing Statement http://d1.scribdassets.com/ScribdViewer.swf?document_id=10275410&access_key=key-2arwch33v27rw4obom5&page=1&version=1&viewMode=list

I really enjoyed my Second Life appearance on “Government’s Place in Virtual Worlds and Online Communities,” which was hosted by Metanomics.  You can watch the entire segment on the Metanomics site.  But the folks at Metanomics have also posted 6 clips from the show at YouTube that highlight some of the topics we discussed.  Here’s the list of clips and the videos:

Part 1: Are the Feds about to Regulate Second Life & Virtual Worlds?

Part 2: Global Communities, Local Values, Internet Governance & The Dangers of “Harmonization”

Part 3:  Virtual Child Pornography & Our Virtual Reality Future

Part 4: Why Speech Controls & Privacy Regulations are Two Sides of the Same Coin

Part 5: Privacy, Advertising, User Empowerment, and the “Free” Internet

Part 6: Virtual World Self-Governance and a “Utopia of Utopias”

Finally, here’s some of the background material I referenced during the show:

• “Parental Controls and Online Child Protection: A Survey of Tools & Methods [VERSION 4.0]“
• “Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics’“, Inside ALEC, July 2009.
• “Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” PFF Progress on Point 16.13, July 8, 2009
• “Cyberbullying Legislation:  Why Education is Preferable to Regulation,” by Berin Szoka and Adam Thierer, PFF Progress on Point 16.12, June 19, 2009
• “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” by Berin Szoka and Adam Thierer, PFF Progress on Point 16.11, May 21, 2009
• Web 2.0, Section 230, and Nozick’s “Utopia of Utopias”, Jan. 13, 2009, Tech Liberation Front

Today I was invited to the Federal Communications Commission (FCC) to testify at one of the agency’s Broadband Working Group workshops. This particular workshop was on “Broadband Consumer Context,” which focused on “a range of challenges and opportunities as the internet becomes a focal point for commercial transactions, social networking, and a host of activities pertaining to information gathering and exchange.”

I was asked to address the issue of whether there is a relationship between online safety concerns and broadband uptake. In my testimony, I noted that, in my 15 years of research in this area, I have never unearthed any substantive empirical evidence suggesting a correlation between parental concerns about online activity and overall household broadband uptake. I have seen occasional anecdotal news stories discussing the concerns some parents have had about their kids online that led them to reject online connectivity, but these stories have been exceedingly rare (and I haven’t seen any in recent memory).

I also argued that I did not think it at all surprising that such anecdotes are harder to find, or that empirical evidence on this front seems non-existent. I argued that there were four logical explanations for why parental concerns about online safety haven’t “moved the broadband needle” much in the negative direction:

1. Not every home has children present
2. Parents use a variety of household media rules to control media & Internet usage
3. A vibrant marketplace of parental control technologies exists
4. Likely that most parents believe that the benefits of broadband outweigh the potential downsides

For all the details on each of those, read my entire testimony or check out the presentation embedded below that I made to the FCC today.

Is There a Relationship Between Online Safety Concerns and Broadband Uptake? (Adam Thierer – PFF) http://d.scribd.com/ScribdViewer.swf?document_id=19575851&access_key=key-1igiha619z8f15dm6hg5&page=1&version=1&viewMode=

My friends Anne Collier and Larry Magid, two of America’s leading experts on Internet safety matters, have just released a terrific new “Online Safety 3.0” manifesto.  Anne is the editor of Net Family News, Larry pens the “Safe and Secure” blog for CNet News, and together they run ConnectSafely.org.  Everything they do is must-reading for those of us who cover and care about the intersection of online child safety and free speech issues. [Disclosure: I am currently serving along with Anne and Larry on the new, government-appointed Online Safety Technology Working Group.]

In their new “Online Safety 3.0” essay, Anne and Larry argue that:

Both the Internet and the way young people use technology are constantly changing, but Internet safety messages change very slowly if at all. A few years ago, some of us in the Net safety community started talking about how to adjust our messaging for the much more interactive “Web 2.0.” And we did so, based on the latest research as it emerged. But even those messages are starting to get a bit stale.

Their “Version 3.0” for online safety refocuses the discussion on “the positive reasons for safe use of social technology.” They want to”enable[] youth enrichment and empowerment. Its main components — new media literacy and digital citizenship – are both protective and enabling.”  They argue that “promoting critical thinking, mindful producing, and the ethics, responsibilities and rights of citizenship” is “empowering because it’s protective. This is protection that lasts a lifetime.”  Amen to that.

What I like best about Anne and Larry’s approach is that is fundamentally optimistic.  Whereas so many supposed child safety experts talk down to both parents and kids and seem to suggest that both are completely oblivious to the world around them, Anne and Larry have a very different worldview and approach. They are positive about the potential of both parents and kids to take on new challenges and make the best of the new technologies they have at their disposal, even if there are some bumps along the way. The other thing I love about Anne and Larry is that they have done more than any two journalists I know to debunk the “technopanic” hysteria that others in the media world have propagated over the past 15 years.

Anyway, make sure to read their “Online Safety 3.0” manifesto.  Best thing I’ve seen on the subject in a long time.

I like this new document about guarding your online reputation that has just been jointly published by Reputation Defender and the Internet Keep Safe Coalition (iKeepSafe). They list these “3 Key Tips for Parents” for how to deal with concerns about their children’s online safety, privacy, and reputation:

1. Keep Current with Technology: Talk to teachers about what forms of Internet safety tools they implement in computer labs and technology classes, consider these safety tools for home use, and stay up-to-date on the capabilities of any mobile devices your child may have. 2. Keep Communicating with Your Kids: Find out who your child talks to online, educate your kids about the permanence of any “digital footprints” they leave behind, limit the use of social networks, and make it a habit to engage your kids in critical conversation—the more you talk to your kids about their online usage, the more they will learn to use digital products in a safe and healthy manner. 3. Keep Checking Your Kid’s Internet Activity: Keep computers in a central public location, check your child’s browsing histories, and limit your child’s computer time—there’s a whole world of outdoor and offline activities where they should be involved!

All good advice. I especially like their focus on getting parents to communicate early and often with their kids. It’s something I have beat the drum about quite a bit in my own work on the subject. Specifically, they rightly stress the importance of “encourag[ing] your child to think critically and evaluate sources of online information, and about promises made by other people online.” “[M]ake it a habit to engage your kids in critical conversation,” they stress. “The more you talk to your kids about their online usage, the more they will learn to use digital products in a safe and healthy manner.”

Here are some of the questions they suggest to parents that will help them get these conversations rolling with their kids:

• “How much time do you spend online when you’re not at home?”
• “What kinds of things do you or your friends usually do when you’re online?”
• “Show me your favorite sites.”
• “Why are they your favorites?”
• “Are there any websites you don’t like? Why don’t you like them?”
• “Do you talk to other people online?”
• “Who are they?”
• “What do you talk about?”
• “Are you the same person online as you are offline?”

All good stuff.  This how responsible parenting in the Information Age gets started. It’s never easy to have such conversations, but they are essential.  Especially if we don’t want lawmakers proposing that Uncle Sam become our national nanny.

What Unites Advocates of Speech Controls & Privacy Regulation? [pdf]

by Adam Thierer & Berin Szoka The Progress & Freedom Foundation, Progress on Point No. 16.19

Anyone who has spent time following debates about speech and privacy regulation comes to recognize the striking parallels between these two policy arenas. In this paper we will highlight the common rhetoric, proposals, and tactics that unite these regulatory movements. Moreover, we will argue that, at root, what often animates calls for regulation of both speech and privacy are two remarkably elitist beliefs:

1. People are too ignorant (or simply too busy) to be trusted to make wise decisions for themselves (or their children); and/or,
2. All or most people share essentially the same values or concerns and, therefore, “community standards” should trump household (or individual) standards.

While our use of the term “elitism” may unduly offend some understandably sensitive to populist demagoguery, our aim here is not to launch a broadside against elitism as Time magazine culture critic William H. Henry once defined it: “The willingness to assert unyieldingly that one idea, contribution or attainment is better than another.”^[1] Rather, our aim here is to critique that elitism which rises to the level of political condescension and legal sanction. We attack not so much the beliefs of some leaders, activists, or intellectuals that they have a better idea of what it in the public’s best interest than the public itself does, but rather the imposition of those beliefs through coercive, top-down mandates.

That sort of elitism—elitism enforced by law—is often the objective of speech and privacy regulatory advocates. Our goal is to identify the common themes that unite these regulatory movements, explain why such political elitism is unwarranted, and make it clear how it threatens individual liberty as well as the future of free and open Internet. As an alternative to this elitist vision, we advocate an empowerment agenda: fostering an environment in which users have the tools and information they need to make decisions for themselves and their families.

I. The Elitism of Speech Regulation

First, consider how those two elitist beliefs identified above are on display when lawmakers or regulatory advocates make efforts to control speech or content.^[2] Calls to regulate free speech are often premised on the belief that something must be done to “protect The Children.”^[3] Personal and parental responsibility ^[4] are regarded as inadequate safeguards ^[5] since some parents will inevitably fall down on the job by not adequately shielding their children’s eyes and ears from potentially objectionable (or supposedly harmful) speech. Therefore, government must regulate content that is indecent, profane, excessively violent, and so on. The definition of those things is then left to unelected bureaucrats and judges to make on our behalf.

But it’s not just about “The Children.” Some regulatory advocates believe that even the choices made by consenting adults must be disregarded because some people fail to understand the supposedly destructive nature of the speech they are consuming. Government must act to protect people from making what some regulatory advocates regard as destructive or even immoral choices that could bring harm to them or their loved ones.

In sum, regulatory advocates are essentially saying that people cannot be trusted or left to their own devices and, therefore, government must intervene and establish a baseline “community standard” on behalf of the entire citizenry to tell them what‘s best for them.^[6] Even if those citizens have tools and information at their disposal to make sensible decisions about objectionable content, that’s not good enough because they might not do the job properly. Government must do it for them!

II. The Elitism of Privacy Regulation

This same mentality motivates calls for privacy regulations. Those who call for government interventions to “protect privacy” often claim that people too willingly surrender personal information about themselves and that they don’t understand the adverse consequences of those actions.^[7] Alternatively, regulatory advocates claim that advertising and marketing efforts are inherently “manipulative” and that people do not realize they are being duped into surrendering personal information or into buying products or services they supposedly don’t need.^[8] Of course, those regulatory advocates rarely pause to explain to us how it is that they were not also duped and manipulated by the same things—again revealing their deeply-rooted elitism! (As discussed below, this makes it clear how the psychological phenomenon of “third-person effect hypothesis” is driving much of this debate.)

“Protecting The Children” is also used as a rhetorical cover for regulation here, but not as often in debates over speech controls.^[9] Instead, regulatory advocates mostly focus on adults who are presumed not to know what is in their own best interest—necessitating paternalistic government intervention on their behalf.

III. Intellectual Schizophrenia on Both the Left & Right

What is particularly interesting about all this is the way these two issues expose a sort of intellectual schizophrenia at work on both the Left and Right of the political spectrum. Left-leaning policymakers and intellectuals typically decry censorship efforts (except where “commercial speech,” “hate speech” and “bias” are at issue), but are quick to rally around proposals to layer privacy regulations on the Internet. The opposite is often true of many on the Right of the political spectrum: They typically declare privacy regulations to be paternalistic and antithetical to free enterprise (or perhaps just erosive of efforts to legislate morality),^[10] but in the next breath advocate controls on content they find objectionable.

Few on either side stop to consider the relationship between speech and privacy. In fact, they are but two sides of the same coin. After all, what is your “right to privacy” but a right to stop me from observing you and speaking about you?^[11] “Protecting privacy,” therefore, typically means restricting speech rights in the process. Advocates of privacy regulation often insist that the use, processing and collection of information are “conduct” unprotected by the First Amendment, but in fact, the First Amendment broadly protects the gathering and distribution of information as part of the process of communication (“speech”).^[12] Similarly, attempts to “clean up” speech or “protect The Children,” often require regulations that would betray the privacy of adults by expanding the role of government, and impose serious burdens on businesses and markets—such as age verification mandates ^[13] or extensive data retention requirements.^[14]

IV. Common Tactics & Regulatory Mechanisms

The two movements also share common political tactics and regulatory approaches. Privacy advocates generally favor “opt-in” mandates as the federal “baseline standard” for any website collecting information about users, especially their browsing habits (regardless of whether the information is “personally identifiable”). In other words, the law would create a property right in such “personal information” (ironically, many advocates of this approach criticize or reject intellectual property.) In a similar vein, many advocates of speech controls push for mandatory parental control tools or restrictive default settings.^[15] That is, if government won’t censor speech outright, regulatory advocates want lawmakers to at least (1) require that media, computing and communications devices be shipped to market with parental controls embedded or included (as proposed in Australia and with China’s “Green Dam” filter),^[16] and possibly, (2) that such controls be defaulted to their most restrictive position—forcing users to opt-out of the controls later if they want to consume media rated above a certain threshold.

More sophisticated advocates of speech controls and privacy regulation will likely argue that their paternalism is less elitist or intrusive because they merely want to “nudge” the public into making “better” decisions. Economist Richard Thaler and legal scholar Cass Sunstein (director of President Obama’s Office of Information and Regulatory Affairs, responsible for analyzing most new federal regulations) popularized this approach with their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness. Based on behavioral economics studies, they argue that both government and private actors must inevitably make decisions about “choice architecture” and that, by setting defaults, incentives and rules smartly, “choice architects” can and should improve decision-making without blocking, fencing-off or significantly burdening choices.^[17]

In this regard, Sunstein and Thaler’s approach parallels the work of Lawrence Lessig, one of the most influential Internet policy thinkers. Lessig has argued that the “architecture” of “code” (how software is written) “regulates” all online activities and requires government oversight and intervention to keep in check. Otherwise, he warned ominously a decade ago, “Left to itself, cyberspace will become a perfect tool of control.”^[18] Lessig’s hyper-pessimistic predictions have proven unwarranted, however. Far from fostering a world of “perfect control,” code and cyberspace have proven remarkably difficult to regulate, but nonetheless has generally benefited consumers and citizens without centralized direction.^[19] Still, Lessig, Sunstein, and others of this ilk persist in their advocacy of “nudges” of many varieties to impose their will on cyberspace through mandates from above.

But while it might be possible to define “better decisions” and argue that poor choice architecture leads people to choose things they clearly don’t want in contexts like investment decisions and mortgages, how can elites know what other people really want in highly subjective contexts like privacy and speech? Should they rely on opinion polls—the highly subjective results of which depend heavily on “choice architecture” of question-crafting—to guess what the right default should be?^[20] Was the Chinese proposal to mandate deployment of “Green Dam” just a harmless “nudge” because users weren’t barred from uninstalling the filtering software that must accompany their computers (i.e., “opting-out”)? The problem becomes even more difficult where trade-offs among competing values are inevitable. For example, data collection about Internet users raises privacy concerns for some but benefits all, creating more funding for “free” content (i.e., speech) and services users prefer by making more valuable the advertising that supports online publishers. In short, regulations of speech and privacy are likely to be pure paternalism, even when billed as “libertarian paternalism as Thaler and Sunstein label their approach.^[21]

What might be called “regulatory blackmail” is also a time-honored tradition among both advocates of speech controls and privacy regulation. When censorship advocates have previously been impeded by the First Amendment, they have worked behind the scenes with lawmakers or regulatory agencies to use indirect pressure and strong-arming tactics to extract “voluntary concessions” from companies or others.^[22] For example, in 2004, the FCC strong-armed radio giant Clear Channel into agreeing to a “voluntary” consent decree that involved taking Howard Stern off the air.^[23] Similarly, in 2008, XM and Sirius Satellite Radio finally agreed to set aside 4% of their system capacity for use by politically favored racial minorities (a kind of speech control) as a “voluntary condition” of their merger—after the FCC had sat on their application for nearly 16 months.^[24] This race-based preference would have been unconstitutional if the FCC had imposed it directly.^[25] While the FTC has been far less prone to such abuse and actually plays a key role in holding companies to their promises, its current Chairman, Jon Leibowitz, has hung the “regulatory sword of Damocles” over the heads of the online advertising industry, threatening them with a “day of reckoning” if he doesn’t get what he wants from industry self-regulatory efforts.”^[26] The sword could actually fall if the FTC turns self-regulation into the European model of “co-regulation,” where the government steers and industry simply rows.^[27]

V. The Crisis Mentality that Drives Regulation

Speech and privacy regulatory advocates share another trait in common: an affinity for the use of a crisis mentality as a method of spurring political action. In his 1995 book The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy, political philosopher and economist Thomas Sowell formulated a model that he argued drives ideological crusades to expand government power over our lives and economy. “The great ideological crusades of the twentieth-century intellectuals have ranged across the most disparate fields,” noted Sowell. But what they all had in common, he argued, was “their moral exaltation of the anointed above others, who are to have their different views nullified and superseded by the views of the anointed, imposed via the power of government.”^[28] These government-expanding crusades shared several key elements, which Sowell identified as follows:

1. Assertion of a great danger to the whole society, a danger to which the masses of people are oblivious.
2. An urgent need for government action to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many, in response to the prescient conclusions of the few.
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes.

We see this model at work on a daily basis today with our government’s various efforts to reshape our economy, but the model is equally applicable to debates over speech controls and privacy regulation. In particular, the various “technopanics”^[29] we have witnessed in recent years fit this model. For example, consider how this model plays out in the debate over online social networking:

1. Assertion of a great danger to the whole society [online sexual predators], a danger to which the masses of people are oblivious.
2. An urgent need for government action [such as mandatory online age verification ^[30] or the Deleting Online Predators Act ^[31]] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [must stop kids and adults from being online together on same sites], in response to the prescient conclusions of the few [some state Attorneys General].^[32]
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [child safety researchers and others are told that their research is meaningless or offbase].^[33]

We also see this model in play in other debates, such as efforts to regulate “excessively violent” video games and television programming.^[34] And consider how this model plays out on the privacy front:

1. Assertion of a great danger to the whole society [amorphous privacy violations], a danger to which the masses of people are oblivious.
2. An urgent need for government action [“baseline federal privacy regulation”] to avert impending catastrophe.
3. A need for government to drastically curtail the dangerous behavior of the many [anyone who shares information online], in response to the prescient conclusions of the few [a handful of privacy advocacy groups].
4. A disdainful dismissal of arguments to the contrary as either uninformed, irresponsible, or motivated by unworthy purposes [any suggestion that privacy concerns are being overblown and that most information-sharing is socially beneficial is dismissed out-of-hand].

Worse yet, regulatory intervention in these cases simply begets more and more intervention to correct the inevitable failures of, or dissatisfaction with, previous interventions.^[35] Thus, the “crisis” cycle never ends.

VI. Third-Person Effect Hypothesis as an Explanation

Something more profound than simple political elitism seems to be at work here, however. A phenomenon psychologists refer to as the “third-person effect hypothesis” can explain many calls for government intervention, especially in the media world.^[36] Simply stated, speech and privacy critics sometimes seem to only see and hear in media or communications what they want to see and hear—or what they don’t want to see or hear. When they encounter perspectives or preferences that are at odds with their own, they are more likely to be concerned about the impact of those things on others throughout society and come to believe that government must “do something” to correct those perspectives. Many people desire regulation because they think it will be good for others, not necessarily for themselves. The regulation they desire has a very specific purpose in mind: “re-tilting” speech or market behavior in their desired direction.

The third-person effect hypothesis was first formulated by W. Phillips Davison in a seminal 1983 article:

In its broadest formulation, this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.^[37]

Davison used this hypothesis to explain how media critics on both the Left and Right seemed to simultaneously find “bias” in the same content or reports when they couldn’t possibly both be correct. In reality, their own personal preferences were biasing their ability to fairly evaluate that content. Davison’s article prompted further research by many other psychologists, social scientists, and public opinion experts to test just how powerful this phenomenon was in explaining calls for censorship and other social phenomena.^[38] In these studies, third-person effect has been shown to be the primary explanation for why many people fear—or even want to ban—various types of speech or expression, including news,^[39] misogynistic rap lyrics,^[40] television violence,^[41] video games,^[42] and pornography.^[43] In each case, the subjects surveyed expressed strong misgivings about allowing others to see or hear too much of the speech or expression in question, but greatly discounted the impact of that speech on themselves. Such studies thus reveal the strong paternalistic instinct behind proposals to regulate speech. As Davison notes:

Insofar as faith and morals are concerned… it is difficult to find a censor who will admit to having been adversely affected by the information whose dissemination is to be prohibited. Even the censor’s friends are usually safe from the pollution. It is the general public that must be protected. Or else, it is youthful members of the general public, or those with impressionable minds.^[44]

It’s easy to see how this same phenomenon is at work in debates about privacy. Regulatory advocates imagine their preferences are “correct” (right for everyone) and that the masses are being duped by external forces beyond their control or comprehension, even though the advocates themselves are somehow immune from the brain-washing and privy to some higher truth that the hoi polloi simply cannot fathom. Again, this is Sowell’s “Vision of the Anointed” at work.

Consider the flare-up in 2004 over the introduction of Gmail, Google’s free email service. At a time when Yahoo! mail (then as now the leading webmail provider) offered customers less than 10 megabytes of email storage, Gmail offered an astounding gigabyte of storage that would grow over time (now over 7 GB). Rather than charging some users for more storage or special features, Google paid for the service by showing advertisements next to each email “contextually” targeted to keywords in that email—a far more profitable form of advertising than “dumb banner” ads previously used by other webmail providers.^[45] Self-appointed (or, to extend Sowell’s framework, “self-anointed”) privacy advocates howled that Google was going to “read users’ email,” and led a crusade to ban such algorithmic contextual targeting.^[46] Thierer responded to these critics by pointing out that the service was purely voluntary and noted:

you don’t speak for me and a lot of other people in this world who will be more than happy to cut this deal with Google. So do us a favor and don’t ask the government to shut down a service just because you don’t like it. Privacy is a subjective condition and your value preferences are not representative of everyone else’s values in our diverse nation. Stop trying to coercively force your values and choices on others. We can decide these things on our own, thank you very much.^[47]

Interestingly, however, the frenzy of hysterical indignation about Gmail was followed by a collective cyber-yawn: Users increasingly understood that algorithms, not humans, were doing the “reading” and that, if they didn’t like it, they didn’t have to use it. Today, nearly 150 million of people around the world use Gmail, and it has a steadily growing share of the webmail market. Even though cyber-consumers have embraced the service, some privacy advocates persist in their effort to shut down Gmail. They appear determined to stop at nothing to impose their will on others—the essence of political elitism—even if that means cutting off free email service for 150 million people!^[48]

A similar debate has played out more recently regarding targeted online advertising in general. Advertising on search engines is, much like Gmail, targeted “contextually” based on search terms entered by users and most advertising on other websites is based on the nature of content on a site or page. But certain data is collected about users as they browse to make that advertising more effective—by measuring its performance, reducing fraud, preventing over-exposure, etc. Some privacy advocates have insisted that industry self-regulation of such practices (even if enforced by the FTC) is inadequate and have called for preemptive regulation. They are even more offended by “behavioral advertising” which allows publishers whose content would have little value as the basis for contextually targeting advertising on their own sites to compete for more highly valued advertising by showing ads to users based on other sites they’ve visited. In both cases, data collection can increase the funding available to publishers to produce more of the content and services preferred by users, thus conferring an enormous indirect benefit on users, but also directly benefits users by increasing the relevance of the advertising they see.^[49] For some of the more extreme advocates of privacy regulation, however, there are no trade-offs, only absolutist “solutions:” To them, privacy is so obviously desirable that they feel at ease in deciding what’s best for everyone else. Such absolutists often respond with righteous indignation and conspiratorial fulmination when challenged to identify the harm against which they’re protecting consumers, while disdainfully dismissing all talk of the benefits of online advertising as self-serving industry propaganda.^[50]

VII. The Principled Alternative: Trust People & Empower Them

There is an alternative to this elitist mentality: freedom and personal responsibility. Individuals should be permitted to live a life of their own, even if they sometimes make mistakes or choices that are at odds with what elites think is best for them. ^[51]

Of course, the world isn’t perfect. In an ideal world, adults would be fully empowered to tailor speech and privacy decisions to their own values and preferences. Specifically, in an ideal world, adults (and parents) would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block the things they don’t like—objectionable content, annoying ads or the collection of data about them—while also finding the things they want.

Achieving that ideal is likely impossible, but the good news is that we are moving closer to it with each passing day. Citizens have more tools and methods at their disposal than ever before which enable them to make decisions for themselves and their families. And this is true for both parental controls ^[52] and privacy controls.^[53]

Of course, some speech and privacy elitists will argue that we can’t trust empowerment tools ( e.g., filters, rating systems, or other controls) that are created by companies or other affected parties. But rather than trying to enhance those tools and educate users about how to use them, these elitists skip right past user empowerment and channel their energies into regulations that would impose a top-down, one-size-fits all standard on all adults and families—or even into trying to craft the perfect “nudge” that will help users make what elites believe to be the “right” decisions. Of course, these tools can, and should, be improved. Those groups worried about speech/content and privacy issues should focus on how we might drive such protections from the bottom-up by empowering individuals instead of government bureaucrats. The goal in both cases should be a “let-a-thousand-flowers-bloom” approach, which offers diverse tools and strategies for our diverse citizenry.^[54] We need not accept “one-size-fits” all approaches, whether they be regulatory mandates or “nudges,” based on the presumption that elites know best.

Finally, it is vital not to lose sight of what’s ultimately at stake here. If regulatory approaches trump the empowerment agenda we have described, the future of a free and open Internet—indeed, as technology converges, the future of all media—is at risk.^[55] By imposing technological solutions from the top-down that can never keep pace with technological change, regulation necessarily forecloses freedom and innovation.^[56] By contrast, individual empowerment allows innovation to flourish. The better approach across the board is education, not regulation.^[57] Empowerment, not elitism, is the path forward. The digital elite should be leading this effort by developing and promoting technologies of empowerment, not crafting regulatory mandates to force their will upon us.^[58]

#

Adam Thierer is a Senior Fellow with The Progress & Freedom Foundation and the director of its Center for Digital Media Freedom. Berin Szoka  is a Senior Fellow with PFF and the Director of PFF’s Center for Internet Freedom.

[1] . William A. Henry, In Defense of Elitism (1995) at 2-3.

[2] . See Adam Thierer, The Progress & Freedom Foundation, Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, Progress Snapshot 4.4, Feb. 2008, www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html. Like American courts, we use the term “speech” as a broad catch-all for communications, including both actual speaking as well as other forms of transmitting, as well as receiving, information (“content”).

[3] . See generally Adam Thierer, Don’t Scapegoat Media, USA Today, Dec. 4, 2008, www.pff.org/issues-pubs/ps/2008/ps4.24scapegoatmedia.html; Marjorie Heins, Not in Front of the Children, “Indecency,” Censorship, and the Innocence of Youth (2001); Karen Sternheimer, It’s Not the Media: The Truth about Pop Culture’s Influence on Children (2003); Karen Sternheimer, Kids These Days: Facts and Fictions about Today’s Youth (2006).

[4] . See Adam Thierer, The Progress & Freedom Foundation, FCC Violence Report Concludes that Parenting Doesn’t Work, PFF Blog, Apr. 26, 2007, http://blog.pff.org/archives/2007/04/fcc_violence_re.html.

[5] . See Adam Thierer, The Progress & Freedom Foundation, Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing, PFF Blog, June 26, 2007, blog.pff.org/archives/2007/06/sen_rockefeller_1.html.

[6] . Adam Thierer, Conservatives, Porn, and “Community Standards,” The Technology Liberation Front, March 2, 2009, http://techliberation.com/2009/03/02/conservatives-porn-and-community-standards.

[7] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Online Advertising & User Privacy: Principles to Guide the Debate, Progress Snapshot 4.19, Sept. 2008, www.pff.org/issues-pubs/ps/2008/ps4.19onlinetargeting.html.

[8] . Jeff Chester, for decades the great gadfly of American advertising, has decried “the system … developed to track each and every one of us and our behavior for one-on-one marketing efforts” as “manipulative, intrusive and un-democratic.” Wendy Melillo, Q&A: Chester Writes the Book on Privacy, Dec. 11, 2007, www.gfem.org/node/227. For instance, Chester and other leading “privacy advocates” ridicule the idea of smart phones as a “liberating technology” and insist that,

Despite the glowing words about customization and personalized service, what marketers and advertisers are increasingly offering consumers is merely the illusion of free choice. Mobile operators offer their various options and services, not on an individual basis, but preconfigured according to segmented demographic profiles.

Center for Digital Democracy and U.S. Public Interest Research Group, Complaint and Request for Inquiry and Injunctive Relief Concerning Unfair and Deceptive Mobile Marketing Practices, Jan. 13, 2009 (emphasis original), www.democraticmedia.org/files/FTCmobile_complaint0109.pdf. See generally Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Targeted Online Advertising: What’s the Harm & Where Are We Heading?, Progress on Point 16.2, Feb. 2009, www.pff.org/issues-pubs/pops/2009/pop16.2targetonlinead.pdf.

[9] . Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech, Progress on Point 16.11, May 2009, www.pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf.

[10] . The Supreme Court has used a “right to privacy” to strike down laws against the use of contraception by married couples, Griswold v Connecticut, 381 U.S. 479 (1965), and abortion, Roe v. Wade, 410 U.S. 113 (1973).

[11] . Eugene Volokh, Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop People From Speaking About You, 52 Stanford L. Rev. 1049 (2000), available at www.pff.org/issues-pubs/pops/pop7.15freedomofspeech.pdf.

[12] . See , Amicus Brief for Association Of National Advertisers, Cato Institute, Coalition For Healthcare Communication, Pacific Legal Foundation And The Progress & Freedom Foundation In Support Of Appellants, IMS Health v. Sorrell, No. 09-1913-cv(L), 09-2056-cv(CON) (2nd Cir. 2009), available at www.pff.org/issues-pubs/filings/2009/071309-Brief-Amici-Curiae-ANA-et-al-Second-Circuit-(09-1913-cv).pdf.

[13] . See Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, March 2007, www.pff.org/issues-pubs/ pops/pop14.8ageverificationtranscript.pdf; www.pff.org/issues-pubs/pops/pop14.5ageverification.pdfAdam Thierer, The Progress & Freedom Foundation, Statement Regarding the Internet Safety Technical Task Force’s Final Report to the Attorneys General, Jan. 14, 2008, www.pff.org/issues-pubs/other/090114ISTTFthiererclosingstatement.pdf; Nancy Willard, Why Age and Identity Verification Will Not Work—And is a Really Bad Idea, Jan. 26, 2009, www.csriu.org/PDFs/digitalidnot.pdf; Jeff Schmidt, Online Child Safety: A Security Professional’s Take, The Guardian, Spring 2007, www.jschmidt.org/AgeVerification/Gardian_JSchmidt.pdf.

[14] . Adam Thierer, The Progress & Freedom Foundation, Mandatory Data Retention: How Much is Appropriate, PFF Blog, June 26, 2006, http://blog.pff.org/archives/2006/06/mandatory_data.html

[15] . Adam Thierer, The Progress & Freedom Foundation, The Perils of Mandatory Parental Controls and Restrictive Defaults, Progress on Point 14.4, Apr. 11, 2008, www.pff.org/issues-pubs/pops/2008/pop15.4defaultdanger.pdf.

[16] . Adam Thierer, China’s Green Dam Filter and the Threat of Rising Global Censorship, PFF Blog, June 17, 2009, http://blog.pff.org/archives/2009/06/chinas_green_dam_filter_and_threat_of_rising_globa.html

[17] . They define choice architecture as follows: “A structure designed by a choice architect(s) to improve the quality of decisions made by homo sapiens. Often invisible, choice architecture is the specific user-friendly shape of an organization’s policy or physical building when homo sapiens come into contact with it. Examples of choice architecture include a voter ballot, a procedure for handling well-meaning people who forget a deadline, or a skyscraper.” Nudge Glossary of Terms, www.nudges.org/glossary.cfm.

[18] . Lawrence Lessig, Code and Other Laws of Cyberspace (1999) at 6.

[19] . See Adam Thierer, Code, Pessimism, and the Illusion of “Perfect Control,” Cato Unbound, May 2009, www.cato-unbound.org/2009/05/08/adam-thierer/code-pessimism-and-the-illusion-of-perfect-control

[20] . See Solveig Singleton & Jim Harper, With A Grain of Salt: What Consumer Privacy Surveys Don’t Tell Us, 2001, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=299930.

[21] . As Cato Institute scholar Will Wilkinson has argued, the book’s “agreeably banal doctrine of choice-preserving helpfulness” blurs the lines between paternalism and libertarianism, and thus “the thrust of the conceptual renovation behind the term libertarian paternalism is to empower, not limit, political elites.” Why Opting Out Is No “Third Way,” Reason, October 2008, www.reason.com/news/show/128916.html. See also Adam Thierer, The Progress & Freedom Foundation, Sunstein’s “Libertarian Paternalism” is Really Just Paternalism, PFF Blog, April 7, 2008, http://blog.pff.org/archives/2008/04/sunsteins_liber.html.

[22] . See Robert Corn-Revere, “’Voluntary’ Self-Regulation and the Triumph of Euphemism,” in Rationales & Rationalizations: Regulating the Electronic Media (Robert Corn-Revere, ed., 1997), at 183-208.

[23] . Telecom Policy Report, Commission Settles Indecency Charges, But At What Cost?, June 30, 2004, http://findarticles.com/p/articles/mi_m0PJR/is_25_2/ai_n6091525.

[24] . See Adam Thierer, XM-Sirius, Regulatory Blackmail, and Diversity, June 17, 2008, http://blog.pff.org/archives/2008/06/xmsirius_regula.html.

[25] . See Comments of W. Kenneth Ferree on Implementation of Sirius-XM Merger Condition, The Progress & Freedom Foundation, MB Docket No. 07-57, March 30, 2009, www.pff.org/issues-pubs/filings/2009/033009siriusXMconditionfiling.pdf.

[26] . See Szoka & Adam Thierer, supra note 8 at 3.

[27] . See id. at 2.

[28] . Thomas Sowell, The Vision of the Anointed: Self-Congratulation as a Basis for Social Policy (1995) at 5.

[29] . Alice Marwick, To Catch a Predator? The MySpace Moral Panic, First Monday, Vol. 13, No. 6-2, June 2008, www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2152/1966; Wade Roush, The Moral Panic over Social Networking Sites, Technology Review, Aug. 7, 2006, www.technologyreview.com/communications/17266; Anne Collier, Why Techopanics are Bad, Net Family News, April 23, 2009, www.netfamilynews.org/2009/04/why-technopanics-are-bad.html; Adam Thierer, Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics,’ Inside ALEC, July 2009, at 16-17, www.alec.org/am/pdf/Inside_July09.pdf; Adam Thierer, Progress & Freedom Foundation, Technopanics and the Great Social Networking Scare, PFF Blog, June 10, 2008, http://techliberation.com/2008/07/10/technopanics-and-the-great-social-networking-scare.

[30] . Supra note 13.

[31] . In the 109th Congress, former Rep. Michael Fitzpatrick (R-PA) introduced the Deleting Online Predators Act (DOPA), which proposed a ban on social networking sites in public schools and libraries. DOPA passed the House of Representatives shortly thereafter by a lopsided 410-15 vote, but failed to pass the Senate. The measure was reintroduced just a few weeks into the 110th Congress by Senator Ted Stevens (R-AK), the ranking minority member and former chairman of the Senate Commerce Committee. It was section 2 of a bill that Sen. Stevens sponsored titled the “Protecting Children in the 21st Century Act” (S. 49), but was later removed from the bill. See Declan McCullagh, Chat Rooms Could Face Expulsion, CNet News.com, July 28, 2006, http://news.com.com/2100-1028_3-6099414.html?part=rss&tag=6099414&subj=news.

[32] . See Emily Steel & Julia Angwin, MySpace Receives More Pressure to Limit Children’s Access to Site, Wall Street Journal, June 23, 2006, online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html; Susan Haigh, Conn. Bill Would Force MySpace Age Check, Yahoo News.com, March 7, 2007, www.msnbc.msn.com/id/17502005.

[33] . See, e.g., Letter of Henry McMaster, Attorney General, South Carolina to Attorney General Richard Blumenthal and Attorney General Roy Cooper Regarding Internet Safety Task Force (“ISTTF”) Report, January 14, 2009, www.scag.gov/newsroom/pdf/2009/internetsafetyreport.pdf

[34] . See Adam Thierer, The Progress & Freedom Foundation, Video Games and “Moral Panic,” PFF Blog, Jan. 23, 2009, http://blog.pff.org/archives/2009/01/video_games_and_moral_panic.html ; Adam Thierer, The Progress & Freedom Foundation, Fact and Fiction in the Debate over Video Game Regulation, Progress Snapshot 13.7, March 2006, www.pff.org/issues-pubs/pops/pop13.7videogames.pdf.

[35] . “All varieties of interference with the market phenomena not only fail to achieve the ends aimed at by their authors and supporters, but bring about a state of affairs which—from the point of view of their authors’ and advocates’ valuations—is less desirable than the previous state affairs which they were designed to alter. If one wants to correct their manifest unsuitableness and preposterousness by supplementing the first acts of intervention with more and more of such acts, one must go farther and farther until the market economy has been entirely destroyed and socialism has been substituted for it.” Ludwig von Mises, Human Action, at 858 (3rd ed. 1963) (1949).

[36] . See generally Adam Thierer, The Progress & Freedom Foundation, Media Myths: Making Sense of the Debate over Media Ownership (2005) at 119-123, www.pff.org/issues-pubs/books/050610mediamyths.pdf (Explaining how the third-person effect serves as a powerful explanation for the heated backlash that followed an FCC effort to moderately liberalize media ownership rules in 2003-04).

[37] . W. Phillips Davison, The Third-Person Effect in Communication, 47 Public Opinion Quarterly 1, Spring 1983, at 3.

[38] . For the best overview of third-person effect research, see Douglas M. McLeod, Benjamin H. Detenber, and William P. Eveland., Jr., Behind the Third-Person Effect: Differentiating Perceptual Processes for Self and Other, 51 Journal of Communication, Vol. 51, No. 4, 2001, at 678-695.

[39] . Vincent Price, David H. Tewksbury & Li-Ning Huang, Third-person Effects of News Coverage: Orientations Toward Media, Journalism & Mass Communications Quarterly, Vol. 74, at 525-540.

[40] . Douglas M. McLeod, William P. Eveland & Amy I. Nathanson, Support for Censorship of Violent and Misogynic Rap Lyrics: And Analysis of the Third-Person Effect, Communications Research, Vol. 24, 1997, at 153-174.

[41] . Hernando Rojas, Dhavan V. Shah, and Ronald J. Faber, For the Good of Others: Censorship and the Third-Person Effect, International Journal of Public Opinion Research, Vol. 8, 1996, at 163-186.

[42] . James D. Ivory, Addictive, But Not For Me: The Third-Person Effect and Electronic Game Players’ Views Toward the Medium’s Potential for Dependency and Addiction, University of North Carolina at Chapel Hill, School of Journalism and Mass Communication, Aug. 2002.

[43] . Albert C. Gunther, Overrating the X-rating: The Third-person Perception and Support for Censorship of Pornography, Journal of Communication, Vol. 45, No. 1, 1995, at 27-38

[44] . Supra note 37 at 14. Along these lines, a December 2004 Washington Post article documented the process by which the Parents Television Council, a vociferous censorship advocacy group, screens various television programming. One of the PTC screeners interviewed for the story talked about the societal dangers of various broadcast and cable programs she rates, but then also noted how much she personally enjoys HBO’s “The Sopranos” and “Sex and the City,” as well as ABC’s “Desperate Housewives.” Apparently, in her opinion, what’s good for the goose is not good for the gander! See Bob Thompson, Fighting Indecency, One Bleep at a Time, The Washington Post, Dec. 9, 2004, at C1, www.washingtonpost.com/wp-dyn/articles/A49907-2004Dec8.html.

[45] . See Chris Anderson, Free: The Future of a Radical Price at 112-118 (2009).

[46] . See Letter from Chris Jay Hoofnagle, Electronic Privacy Information Center, Beth Givens, Privacy Rights Clearinghouse, Pam Dixon, World Privacy Forum, to California Attorney General Lockyer, May 3, 2004, http://epic.org/privacy/gmail/agltr5.3.04.html.

[47] . See email from Adam Thierer to Declan McCullaugh on Politech Email discussion group, April 30, 2004, http://lists.jammed.com/politech/2004/04/0083.html (emphasis added).

[48] . See Complaint and Request for Injunction of the Electronic Privacy Information Center against Google, Inc., March 17, 2009, http://epic.org/privacy/cloudcomputing/google/ftc031709.pdf; see also Ryan Radia, Should the FTC Shut Down Gmail and Google Docs Because of an Already-Fixed Bug?, Technology Liberation Front Blog, March 18, 2009, http://techliberation.com/2009/03/18/should-the-ftc-shut-down-gmail-and-google-docs-because-of-an-already-fixed-bug/.

[49] . See Berin Szoka & Mark Adams, The Progress & Freedom Foundation, The Benefits of Online Advertising & the Costs of Regulation, PFF Working Paper, forthcoming.

[50] . Anti-advertising crusader Jeff Chester often resorts to questioning the motives of those who question whether his regulatory prescriptions would actually benefit consumers, see, e.g., http://techliberation.com/2009/06/17/behavioral-advertising-industry-practices-hearing-some-issues-that-need-to-be-discussed/#comment-11698840. See generally Jeff Chester, Digital Destiny: New Media and the Future of Democracy (2007).

[51] . “The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily or mental and spiritual.” John Stuart Mill, On Liberty (Penguin Classics, 1859, 1986) at 72.

[52] . Adam Thierer, The Progress & Freedom Foundation, Parental Controls & Online Child Protection, Special Report, Version 4.0, Summer 2009, www.pff.org/parentalcontrols.

[53] . Adam Thierer, Berin Szoka & Adam Marcus, The Progress & Freedom Foundation, Privacy Solutions, PFF Blog, Ongoing Series, http://blog.pff.org/archives/ongoing_series/privacy_solutions.

[54] . Comments of Adam Thierer, The Progress & Freedom Foundation, In the Matter of Implementation of the Child Save Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming; MB Docket No. 09-26, April 16, 2009, www.pff.org/issues-pubs/filings/2009/041509-%5bFCC-FILING%5d-Adam-Thierer-PFF-re-FCC-Child-Safe-Viewing-Act-NOI-(MB-09-26).pdf.

[55] . See Adam Thierer, FCC v. Fox and the Future of the First Amendment in the Information Age, Engage, Feb. 20, 2009, www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf

[56] . “To act on the belief that we possess the knowledge and the power which enable us to shape the processes of society entirely to our liking, knowledge which in fact we do not possess, is likely to make us do much harm.” Friedrich von Hayek, “The Pretence of Knowledge,” in The Essence of Hayek, (Hoover Inst., 1984), at 276.

[57] . Adam Thierer, The Progress & Freedom Foundation, Two Sensible, Education-Based Legislative Approaches to Online Child safety, Progress Snapshot 3.10, Sept. 2007, www.pff.org/issues-pubs/ps/2007/ps3.10safetyeducationbills.pdf.

[58] . See, e.g., Berin Szoka, Google, CDT, Online Advertising & Preserving Persistent User Choice Across Ad Networks Through Plug-ins, Technology Liberation Front Blog, March 13, 2009, http://techliberation.com/2009/ 03/13/google-cdt-online-advertising-preserving-persistent-user-choice-across-ad-networks-through-plug-ins/.

The Economist magazine has just released an important feature article entitled, “Sex Laws: Unjust and Ineffective.” In an indirect way, the article makes a point that I have been trying to get across in my work on this issue: If you want to keep your kids safe from real sex offenders, we need to scrap our current sex offender registries and completely rethink the way we define and punish sex offenses in this country.  That’s because, currently, a significant percentage of those people listed in sex offender registries pose almost no threat to children, making it difficult for us to know who really does pose a threat to our kids and what we should do about them.

Simply stated, we’ve dumbed-down the notion of “sex crimes” in this country. As a nation, we have foolishly come to equate almost all sex offenses equally.  While sex offender registry laws vary from state to state, many basically say that that two teens caught engaging in consensual oral sex in high school belong on the same list alongside child rapists. That is insanity. And it leaves many in the public, especially parents, thinking that the whole world is full of predators lurking on every corner just waiting to snatch, rape, and kill their children. [ For the actual facts, see the appendix I have included down below: “Is America Suffering from a National Child Abduction Epidemic”?]  In reality, as The Economist feature story points out, the truth is quite different:

Every American state keeps a register of sex offenders. California has had one since 1947, but most states started theirs in the 1990s. Many people assume that anyone listed on a sex-offender registry must be a rapist or a child molester. But most states spread the net much more widely. A report by Sarah Tofte of Human Rights Watch, a pressure group, found that at least five states required men to register if they were caught visiting prostitutes. At least 13 required it for urinating in public (in two of which, only if a child was present). No fewer than 29 states required registration for teenagers who had consensual sex with another teenager. And 32 states registered flashers and streakers. Because so many offences require registration, the number of registered sex offenders in America has exploded. As of December last year, there were 674,000 of them, according to the National Centre for Missing and Exploited Children. If they were all crammed into a single state, it would be more populous than Wyoming, Vermont or North Dakota. As a share of its population, America registers more than four times as many people as Britain, which is unusually harsh on sex offenders. America’s registers keep swelling, not least because in 17 states, registration is for life.

Georgia has more than 17,000 registered sex offenders. Some are highly dangerous. But many are not. And it is fiendishly hard for anyone browsing the registry to tell the one from the other. The Georgia Sex Offender Registration Review Board, an official body, assessed a sample of offenders on the registry last year and concluded that 65% of them posed little threat. Another 30% were potentially threatening, and 5% were clearly dangerous. The board recommended that the first group be allowed to live and work wherever they liked. The second group could reasonably be barred from living or working in certain places, said the board, and the third group should be subject to tight restrictions and a lifetime of monitoring. A very small number “just over 100” are classified as “predators”, which means they have a compulsion to commit sex offences. When not in jail, predators must wear ankle bracelets that track where they are.

Let’s repeat a few key numbers here: 674,000 registered offenders, “more populous than Wyoming, Vermont or North Dakota.”  Those are the kind of numbers that send sensationalistic media outlets and average parents alike into a tizzy. Rarely does anyone stop to ask what those numbers mean or who these people are on the sex offender registries. But, as The Economist notes, when you dig below the surface and start taking a serious look at who these people are and what they have done to land on the list, a very different story emerges. We’re polluting these lists with petty offenders (flashers and streakers) and people who should have been dealt with in different ways (like teens who were caught in the act).

What about the real bad guys?  As the Georgia Review Board found, only 5% of those on their sex offender registry were “clearly dangerous” and “should be subject to tight restrictions and a lifetime of monitoring.”  These would be your true scum of the Earth; the sick fiends who really have preyed on children or raped repeatedly.  Here’s a question I want answered about these scum: Why do we need a sex offender registry for them at all? Why are they not behind bars for life?  Why don’t we cut off their privates!  I am deadly serious here.  If anyone raped one of my children, I would go after him and snip his manhood myself… slowly… with a dull, rusty blade.  Any yet we release these people to re-offend. And then we put them on a list. A list that had teens on it who made a stupid mistake in high school in the back of car and got caught. DOES THIS MAKE ANY DAMN SENSE???  (And yes, I am shouting when I use all caps!  Because I am sick and tired of this nonsense.)

Here is the sobering fact to consider: a 2003 Department of Justice study reported that the average sentence for child molesters was approximately seven years and, on average, they were released after serving just three of those seven years. That is an extremely troubling statistic. If you have young children in your home, it is even more upsetting. When our government is putting people who viciously hurt innocent children behind bars for just seven years and then letting them out after only three, then our government has failed us at a very fundamental level.

Worse yet, policymakers then point fingers at everyone else and scold Internet companies and ISPs for not doing enough to protect children from predators, all the while conveniently ignoring the government’s own failed policies that allow those predators to be on the streets and behind keyboards in the first place!  It is not “market failure” at work when child predators are lurking online; it is government failure in the extreme. We are never going to solve this problem until we hunt down the real bad guys and lock them up for a long, long time.

In the meantime, however, as Lenore Skenazy argues, parents might want to just “burn your sex offender maps” because they instill a sense of dread and panic in us about the world around us based simply on the large number of people on them — even though they tell you little about who is an actual threat to your child.  I have parents in my neighborhood who tell me they won’t let their kids ride their bike down the sidewalks in our very safe and fairly affluent neighborhood in McLean, Virgina because they have heard there are sex offenders in the area. I ask them if they have ever examined those “offenders” to see what they are on the list for.  They haven’t bothered.  I have.  Not one of the sex offenders in my area had anything to with sex crimes against children.  Strangely, most of the sex offenders in my area are listed as just  being convicted of “sodomy.”  I always wonder, was that consensual sodomy that occurred when it was still a crime in Virginia? (That is, before the Supreme Court struck down such laws in the 2003 case of Lawrence v. Texas). If so, that’s not a crime in my book and those people do not belong on any sex offender list.  Of course, if it was actual rape, that’s a very serious crime and it deserves conviction. Either way, these are not sex crimes against children even though that’s the impression many parents have when parents see or hear about these sex offender registries.  So, when only a small percentage of those on the lists are the ones we truly need to fear (the child molesters and rapists), isn’t there a better solution? Like: LOCK THEM UP AND THROW AWAY THE KEY!  Or, if we are not going to do that, at least create a separate registry for these more serious offenders. Call it the “Scum of the Earth List” and make these people were bright neon monitoring bracelets and anklets so we can see them.

At a minimum, we need follow the advice Human Rights Watch has set forth, as The Economist summarizes:

Human Rights Watch urges America to scale back its sex-offender registries. Those convicted of minor, non-violent offences should not be required to register, says Ms Tofte. Nor should juveniles. Sex offenders should be individually assessed, and only those judged likely to rape someone or abuse a child should be registered. Such decisions should be regularly reviewed and offenders who are rehabilitated (or who grow too old to reoffend) should be removed from the registry. The information on sex-offender registries should be held by the police, not published online, says Ms Tofte, and released “on a need-to-know basis”. Blanket bans on all sex offenders living and working in certain areas should be abolished. Instead, it makes sense for the most dangerous offenders sometimes to face tailored restrictions as a condition of parole.

To clarify my own views: I think lists of serious sex offenders (again, if we aren’t locking them up for longer periods) should be made public, but the lesser offenses (like cases of consensual teen sex in high school) should be kept private so it doesn’t stigmatize those people for life and drive the average public batty in the meantime.

We need to bring some sanity back to America’s sex laws.  And we need to do if for the children. Our kids are not going to be safer (or saner) by artificially inflating sex offender rolls with people who don’t belong on the list in the first place.  That just leads to fear, confusion, and a misplaced sense of justice. We need to punish the true scum more aggressively, and then find more sensible approaches to deal with others.  And let’s get out of the business of putting teenagers on these lists altogether.  That’s just nuts.

A final reason I care deeply about setting things right on this front is because concerns about online child safety — and overblown fears about child predators in particular — are leading to many calls for increased Internet regulation. Down below, I have pasted in an excerpt from my “Parental Controls & Online Child Protection” report in which I explain why this “technopanic” mentality about kids and the Internet is unwarranted.

Appendix: Is America Suffering from a National Child Abduction Epidemic? [ excerpt from “Parental Controls & Online Child Protection,” by Adam Thierer, PFF, ver. 4.0, 2009.]

Debates about online child safety are often driven by fear — fear of bad guys lurking online and waiting to snatch up our children. Indeed, there have been a handful of highly publicized cases of minors being contacted and later abducted or abused by child predators on social networking sites.[1] Such cases do not mean that a national epidemic of Internet-related child abductions is occurring, however. The reality is quite different. As Internet safety expert Larry Magid has noted:

Contrary to what some people might imply, most kids who become victims of online sex predators are not abducted. They are lured after being groomed by their predators. And, though any case is tragic, the fact is that such crimes are relatively rare considering the millions of children and teens that go online every day. Despite thousands of arrests of would-be predators caught up in sting operations, tragic cases like this don’t appear to occur very often.[2]

Indeed, generally speaking, abductions by strangers “represent an extremely small portion of all missing children [cases].”  That conclusion was a central finding of the 2002 National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), a study conducted by the Department of Justice’s Office of Juvenile Justice and Delinquency Prevention.[3] Although the survey is several years old and suffers from some data and methodological deficiencies, it remains the most comprehensive survey of missing and abducted children in the United States.

The NISMART survey broke down juvenile abductions into two categories—family versus non-family. It found that the vast majority of kidnapping victims were abducted by family, friends of the family, or people who had a close relationships with (or the trust of) the minors. Only 115 of the estimated 260,000 abductions—or less than a tenth of a percent—fit the stereotypical abduction scenario that parents most fear: complete strangers snatching children and transporting them miles away.[4] And Lenore Skenazy, author of Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry, notes that, “the chances of any one American child being kidnapped and killed by a stranger are almost infinitesimally small: .00007 percent.”[5]

Despite those findings, public policy debates and media reports remain preoccupied with the horror stories about abductions by random strangers, leaving the impression that the problem is much larger than the more serious issues of family or acquaintance abductions.[6]

Research has shown that this conclusion is also true of child abuse and sex offenders in general, not just abductions. As psychologist Anna C. Salter, author of Predators: Pedophiles, Rapists, and Other Sex Offenders, points out, “[Sex offenders] are part of our communities, part of our network of friends, worse yet, sometimes part of our families.”[7] And former FBI special agent Kenneth V. Lanning, author of Child Molesters: A Behavior Analysis, notes the following:

The often forgotten piece in the puzzle of the sexual victimization of children is acquaintance molestation. This seems to be the most difficult manifestation of the problem for society and the law to face. People seem more willing to accept a sinister stranger from a different location or father/stepfather from a different socioeconomic background as a child molester than a clergy member, next-door neighbor, law-enforcement officer, pediatrician, teacher, or volunteer with direct access to children. The acquaintance molester, by definition, is one of us. He is not just an external threat. We cannot easily distinguish him from us or identify him by physical traits. These kinds of molesters have always existed, but society and the criminal-justice system have been reluctant to accept the reality of these cases.[8]

Clearly, the problem of family and acquaintance abductions and sex abuse predated the rise of the Internet, and it will unlikely be diminished by age verification of minors on social networking websites or other websites. But the argument could be made that abductions by strangers — while exceedingly rare — could be reduced even further by age-verifying minors or adults before they enter certain sites.

This potential reduction may be true, but it is important to remember that predators can’t magically reach through a computer screen and grab our kids. Predators must meet them somewhere in the physical world (i.e., a mall, park, playground, etc.). The danger of the Internet is that it allows predators to groom minors over a protracted period, while doing so from a distance. However, the fact that they are doing so from a distance—and over electronic communications networks, no less—means we have actually gained some important advantages in our effort to combat child predation. Many of the predators leave digital tracks for us to follow. Thus, to the extent that disturbing things are happening online or being facilitated by the Internet in any fashion, at least there is a digital record of those activities or crimes. The electronic tracks have made it easier to recover children or to track perpetrators on many occasions.[9]

Of course, digital records have also made it easier to catch minors engaging in foolish behavior after they post information or photos about their actions online.[10] In past generations, parents often warned their kids to behave themselves in public or else “it will go down on your permanent record.” It was largely just a scare tactic, because there really was no permanent record of the mundane activities of youth. Today, however—for better or for worse—the Internet is becoming “your permanent record.” No doubt, this raises some serious, long-term privacy concerns, but the one positive aspect is that the existence of electronic records makes it easier for parents, website operators, or law enforcement officials to deal with online troublemakers of all varieties.[11] That is why education is essential to make sure both kids and their parents understand that serious consequences are associated with what they post online.

[2] Larry Magid, Abductions by Online Predators Rare, San Jose Mercury News, Oct. 22, 2007,  www.connectsafely.org/articles–advice/commentaries—staff/abduction-by-online-predators-rare.html

[3] Andrea J. Sedlak, David Finkelhor, Heather Hammer, and Dana J. Schultz, National Estimate of Missing Children: An Overview, National Incidence Studies of Missing, Abducted, Runaway, and Thrownaway Children (NISMART), Oct. 2002, at 7,    www.missingkids.com/en_US/documents/nismart2_overview.pdf

[4] A recent study of cases about missing children in Ohio revealed a similar trend. Of the 11,074 documented missing child cases in 2005, only five involved abduction by strangers compared with 146 abductions by family members. Ohio Missing Children Clearinghouse, 2005 Annual Report, at 4; www.ag.state.oh.us/victim/pubs/2005ann_rept_mcc.pdf

[5] Lenore Skenazy, Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry (San Francisco, CA: Jossey-Bass, 2009), at 16.

[6] Indeed, one recent study suggests that perception has replaced reality in the minds of many in the press and general public, who have increasingly come to believe that stranger abductions account for most missing child incidents. A 2006 analysis of New York Times articles about kidnappings, by Glenn W. Muschert, Melissa Young-Spillers, & Dawn Carr in the Justice Policy Journal, argued that “the Times disproportionately focuses on stereotypical kidnapping incidents, while social science data suggest that familial abductions are far more prevalent.” And abduction estimates made by some activists were also “highly exaggerated,” they found. Unsurprisingly, for those reasons, the authors note that various public opinion polls have revealed that most people believed that abductions by strangers accounted for most missing child cases even though the exact opposite was true. Glenn W. Muschert, Melissa Young-Spillers, & Dawn Carr, 3 Justice Policy Journal, No. 2, Fall 2006, at 4-6.

[7] “Sex offenders only very rarely sneak into a house in the middle of the night. More often they come through the front door in the day, as friends and neighbors, as Boy Scout leaders, priests, principals, teachers, doctors, and coaches. They are invited into our homes time after time, and we give them permission to take our children on the overnight camping trip, the basketball game, or down to the Salvation Army post for youth activities.” Anna C. Salter, Predators: Pedophiles, Rapists, and Other Sex Offenders (New York: Basic Books, 2003), at 5, 76.

[8] Kenneth V. Lanning, National Center for Missing & Exploited Children, Child Molesters: A Behavior Analysis, 2001, www.missingkids.com/missingkids/servlet/ResourceServlet?LanguageCountry=en_US&Pageid=469

[9] See Mark Sherman, Chat Rooms Help FBI Hunt for Pedophiles, USA Today, May 15, 2006, www.usatoday.com/tech/news/2006-05-15-fbi-chat-rooms_x.htm

[10] Wendy Davis, Teens’ Online Postings Are New Tool for Police, Boston Globe, May 15, 2006, www.boston.com/news/nation/articles/2006/05/15/teens_online_postings_are_new_tool_for_police; Andrew L. Wang, “Teen Blog Watch is On,” Chicago Tribune, May 23, 2006.

[11] Eric Tucker, Police Departments Turning to YouTube to Catch Suspects, Boston Globe, Feb. 24, 2007, www.boston.com/news/local/rhode_island/articles/2007/02/24/police_departments_turning_to_youtube_to_catch_suspects

The latest edition (Version 4.0) of my PFF special report on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now up.  For those not familiar with the report, it explores the market for parental control tools, rating schemes, education and media literacy efforts, and various other tools, methods, and initiatives aimed at promoting online child safety.  After evaluating that state of this market, I conclude: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”  Moreover, I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation.

Version 4.0 of the report is now over 250 pages long (up from 200 pages in Version 3.0) and it contains almost 70 exhibits (up from 50), 725 references (up from roughly 500), and numerous updates in all five sections of the book. Major updates have been made to the Internet, social networking, and mobile media sections, reflecting the growing importance of those sectors and issues. Other new sections or appendices have also been added to the report, including:

• a new section examining how many households really need parental control tools;
• a new appendix on the downsides of mandatory parental controls and restrictive default settings;
• a new section on the dangers of “deputizing the online middleman” solution as an approach to solving child safety concerns;
• a new appendix reviewing the findings of 5 past online safety task forces;
• … and much more.

I issue major updates once a year and 1 or 2 minor tweaks during the course of the year to reflect the evolution of the parental control and online child safety marketplace and debate. The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past couple of years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.

In an earlier post, I mentioned an important new online child safety task force report that has just been released from the “Point Smart. Click Safe.” Blue Ribbon Working Group. It’s a great report and I encourage you to read the whole thing. It was my great pleasure to serve on this task force, and as we started finalizing our conclusions and recommendations, I started thinking about how much of what we were finding and recommending was consistent with what past online safety task forces had also concluded.

By way of background, over the past decade, five major online safety task forces or blue ribbon commissions have been convened to study online safety issues. Two of these task forces were convened in the United States and issued reports in 2000 (“COPA Commission”) and 2002 (“Thornburgh Commission“). Another was commissioned by the British government in 2007 and issued in a major report in March 2008 (“Byron Review“). Finally, two additional online safety task forces were formed in the U.S. in 2008 and concluded their work, respectively, in January (“Internet Safety Technical Task Force“) and July (“Point Smart. Click Safe.“) of 2009. [And yet another task force — the Online Safety Technology Working Group — was recently formed and has now gotten underway.]

In a new PFF white paper, ” Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” I walk through a chronological summary of each of these past task forces [click on covers of each report below to read them in their entirety] and highlight some of the similar themes and recommendations from them.

Altogether, these five task forces heard from hundreds of experts and produced thousands of pages of testimony and reports on a wide variety of issues related to online child safety. While each of these task forces had different origins and unique membership, what is striking about them is the general unanimity of their conclusions. Among the common themes or recommendations of these five task forces:

• Education is the primary solution to most online child safety concerns. These task forces consistently stressed the importance of media literacy, awareness-building efforts, public service announcements, targeted intervention techniques, and better mentoring and parenting strategies.
• There is no single “silver-bullet” solution or technological “quick-fix” to child safety concerns. That is especially the case in light of the rapid pace of change in the digital world.
• Empowering parents and guardians with a diverse array of tools, however, can help families, caretakers, and schools to exercise more control over online content and communications.
• Technological tools and parental controls are most effective as part of a “layered” approach to child safety that views them as one of many strategies or solutions.
• The best technical control measures are those that work in tandem with educational strategies and approaches to better guide and mentor children to make wise choices. Thus, technical solutions can supplement, but can never supplant, the educational and mentoring role.
• Industry should formulate best practices and self-regulatory systems to empower users with more information and tools so they can make appropriate decisions for themselves and their families. And those best practices, which often take the form of an industry code of conduct or default control settings, should constantly be refined to take into account new social concerns, cultural norms, and technological developments.
• Government should avoid inflexible, top-down technological mandates. Instead, policymakers should focus on encouraging collaborative, multifaceted, multi-stakeholder initiatives and approaches to enhance online safety. Additional resources for education and awareness-building efforts are also crucial. Finally, governments should ensure appropriate penalties are in place to punish serious crimes against children and also make sure law enforcement agencies have adequate resources to police crimes and punish wrong-doers.

The consistency of these findings from those five previous task forces is important and it should guide future discussions among policymakers, the press, and the general public regarding online child safety.  As I note in the paper, the findings are particularly relevant today since Congress and the Obama Administration — including 3 federal agencies (NTIA, FCC, & FTC) are actively studying these issues. So, in light of all that, I hope this short paper can shed some light on the collective wisdom of the past task forces. While more study of online child safety issues is always welcome — including additional task forces or working groups if policymakers deem them necessary — thanks to the work of these five task forces, we now have better vision of what is needed to address online safety concerns.

Five Online Safety Task Forces Agree [PFF – Adam Thierer] http://d.scribd.com/ScribdViewer.swf?document_id=17181137&access_key=key-z6cxfgrjkqaqtxbix&page=1&version=1&viewMode=

A major new online child safety task report by the “Point Smart. Click Safe.” Blue Ribbon Working Group has just been released. First, some background. In June 2007, the National Cable & Telecommunications Association (NCTA), the principal trade association of the cable industry in the United States, announced “Cable Puts You in Control: PointSmart. ClickSafe.” a new campaign by its members to offer parents assistance in keeping their children safe online.   As part of the initiative, the NCTA hosted a major online child safety summit and also announced the formation of the “Point Smart. Click Safe. Blue Ribbon Working Group” in partnership with the Internet KeepSafe Coalition (iKeepSafe) and Common Sense Media. These three organizations, along with the cable industry’s “Cable in the Classroom” program, agreed to bring together a collection of online safety experts from many disciplines to study these issues and develop a set of “best practice” recommendations that could be implemented across the Internet industry. [Disclosure: It was my pleasure to serve as a member of this blue ribbon working group.]

Today, the “Point Smart. Click Safe.” working group produced its final report and concluded that:

Ensuring children’s online safety is a difficult and complex task that calls for input from and action by a wide variety of stakeholders. There is no “silver bullet”—no single technology or approach that has proved effective. Rather, what is required is:

• A combination of different technologies,
• Continuing digital literacy education for parents, educators, and children, and
• Active participation by all concerned companies, groups and individuals.

Similarly, a singular focus on safety is insufficient. Children must learn to minimize risks but also learn appropriate and ethical behaviors in this digital world. In addition, they need an understanding of media literacy, in order to be able to think critically about the content they consume and increasingly create. Therefore, best practices must be part of a larger effort to provide an entertaining, educational, and safe experience for children.

Compared to previous online child safety task forces, which I will discuss in a subsequent post, the major contribution of this task force was its focus on detailed industry best practices that various online providers could adopt to help parents, policymakers, and law enforcement better keep kids safe online. As the working group’s final report noted:

It should be easy for parents and others to find clear and simple explanations of what information and safety elements exist, how they function, and what a user can do in various circumstances. Therefore, best operating practices should:

• Use clear and common language,
• Be consistent and transparent, and
• Provide information and tools that can vary by age and stage of the user.

These best operating practices should be crafted so that they can be:

• Modified for a specific service or application (e.g. ISP, blog, chat, social network),
• Scaled based on the number of intended or actual users,
• Designed and created as part of the product development cycle, and
• Continuously updated to reflect growth and change in the application or service.

The task force then provided a detailed outline of the many tools and strategies that industries could use to accomplish these goals. I encourage you to check out the “Recommendations for Best Practices” section of the report for more detail since there are far too numerous to itemize here.

As I will point out in a related post later, the “Point Smart. Click Safe.” working group’s findings and recommendation were very much in line with what 4 previous online safety task forces have concluded.  Again, more on that later.  For now, read this report!

Update: Here’s a few links to what others are saying about the report:

• Tech Daily Dose
• PC Magazine
• Broadcasting & Cable
• Internet News.com
• Education Week

• Statements from various members of Congress
• David Burt of Filtering Facts
• iKeepSafe
• Paul Rodriguez of Cable Tech Talk
• Microsoft
• Google
• Verizon
• Family Online Safety Institute

Lori Drew was convicted late last year on charges related to her role in a cruel hoax that led to the tragic suicide of thirteen-year old Megan Meier in Missouri in 2006. But today, at her sentencing, the judge threw out her convictions. Millions around the world were horrified by Megan’s fate, and many will probably be upset that Drew might go unpunished. But we need to separate three questions in this case:

1. Should the federal anti-hacking law under which she was convicted really be applied in such cases?
2. What, precisely, was Drew’s involvement?
3. The key question: What should be done about the general problems of cyberbullying and cyberharassment?

Misuse of the Anti-Hacking Statute

Judge Wu has yet to issue his written opinion but seems to have agreed with the various experts on Internet law who argued that, however tragic the Meier case was, the Computer Fraud & Abuse Act (CFAA) should not have been applied to Drew. Most notably, the Electronic Frontier Foundation filed an Amicus Brief in support of Drew’s motion to dismiss the charges against her—summarized by Groklaw and the Harvard Journal of Law & Technology. Orin Kerr, a leading Internet law professor, felt so strongly about the consequences of using the CFAA to criminalize violations of privately written terms of service that he joined Drew’s defense team. Kerr demonstrated the problems of essentially allowing private parties to create the grounds for criminal offenses (if violated by users) by suggesting obviously ridiculous new terms of service for the Volokh Conspiracy, the group blog he writes on.

Hard as it may be for those who want to “see justice done” in this case, the CFAA just isn’t the right law to apply—which raises the question of whether new laws are needed, discussed below.

Uncertainty About Drew’s Role

The judge may also have been influenced by uncertainty as to Drew’s actual role in the case. Initial coverage of the story suggested that Drew created the fake MySpace persona of a teen boy (“Josh Evans”), then used that profile to woo Meier, a classmate of Drew’s daughter, only to deliberately—and cruelly—break her heart. After Missouri prosecutors and the FBI declined to press charges against Drew, federal prosecutors in California decided to do so, but Drew consistently maintained that it was not her idea to create the account.

When she finally went to trial, Ashley Grills, an 18-year-old friend of the Drew family, changed her story: Grills had initially claimed that creating the account was Ms. Drew’s idea, but admitted at trial that she (not Drew) created the fake “Josh Evans” account and that most of the conversations between Meier were with Grills, not Lori Drew. In particular, the final blow that seems to have driven the emotionally fragile Meier to suicide apparently came from Grils, not Drew:”You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you.”

We’ll probably never know exactly what actually happened, but it does appear that Drew was not the prime instigator behind the hoax, as she first appeared to be, but played more the role of a facilitator. Unconscionable as its for any adult, especially a parent to encourage, promote or even allow such behavior, it may not create legal liability.

Cyberbullying: What’s Next?

The real question here is how we should deal such cases more generally. Adam Thierer and I released a major study of these issues a few weeks ago: Cyberbullying Legislation: Why Education is Preferable to Regulation—which Adam recently dicussed at a Capitol Hill briefing. We distinguish among three problems that have been conflated in coverage of this issue:

1. Cyberbullying: kid-on-kid abuse online
2. Cyberharassment generally: people of all ages using the Internet to harass each other
3. Adult-on-kid cyberharassment: the Megan Meier case

Confusion of these three issues has resulted in some very inappropriate responses to the problem. Most notably, Rep. Linda Sánchez has proposed the “Megan Meier Cyberbullying Prevention Act,” which would make it a federal felony with a sentence of up to two years to transmit “any communication… with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior.” While Sánchez claims uses the word “cyberbullying” (Problem #1), her rhetoric (and the title of the bill) is really focused on adult-on kid cyberharassment (Problem #3). Punishing that special kind of abuse by adults of children, who are particularly vulnerable, might well be something federal law should address. But Sánchez’s bill doesn’t do that; instead, it seeks to punish all cyberharassment (Problem #2). Sánchez’s fails in several other respects to clearly define its terms and scope, thus raising serious constitutional concerns about the bill’s effect on chilling constitutionally protected free speech, as well as about the due process rights of those who might be prosecuted under the bill.

In our paper, we highlight a number of substantial changes that would need to be made to create a narrowly-tailored bill appropriate to the problem of adult-on-kid cyberharassment. But we also explain why it’s probably not possible to craft a law consistent with the Constitution to address the general issue of cyberharassment: While state laws generally apply to cyberstalking (where a threat of physical harm is made or felt), it’s profoundly difficult to distinguish between “harassment” and simple online conversations.

We do think something can and should be done about the very real problem of kid-on-kid cyberbullying (Problem #1). But rather than treat kids as felons (the Sánchez approach), lawmakers could get serious about supporting online safety education, awareness-building efforts, prevention, and intervention. Such an approach would avoid thorny constitutional problems and has recently been floated in both chambers of Congress. In mid-May, the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047) was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that will be administered by the Department of Justice, in concurrence with the Department of Education, and the Department of Health & Human Services. These agencies will also work in consultation with education, Internet safety, and other relevant experts to administer a five-year grant program, under which each grant will be awarded for a two-year period. Eligible non-profits may use the grants to:

(1) identify, develop, and implement Internet safety education programs, including educational technology, multimedia and interactive applications, online resources, and lesson plans; (2) provide professional training to elementary and secondary teachers, administrators, and other staff on Internet safety and new media literacy; (3) develop online-risk prevention programs for children; (4) train and support peer-driven Internet safety education initiatives; (5) coordinate and fund research initiatives that investigate online risks to children and Internet safety education; (6) develop and implement public education campaigns to promote awareness of online risks to children and Internet safety education; (7) educate parents about teaching their children how to use the Internet and new media safely, responsibly, and ethically and help parents identify and protect their children from risks relating to use of the Internet and new media

This is exactly the right approach. This bill truly deserves the name “Cyberbullying Prevention Act,” while the Sánchez bill might more accurately be called the “Cyberharassment (of all kinds) Punishment Act.” Rather than pursuing regulation through criminal sanctions that would chill protected speech, education is the better approach—something the federal government can help to support. As Adam and I conclude in our paper:

Again, real online safety and proper netiquette begin at home. We need to teach our kids to be good cyber-citizens. We shouldn’t expect the government (or even schools) to do it all for us. But to the extent government can do something constructive about this problem, it is education and awareness-building that will have the most profound, lasting results. Although more substantive penalties cannot be ruled out entirely, creating new classes of crimes to deal with this problem is unlikely to solve the scourge of cyberbullying. Clearly, based on the emerging research, the young people who are involved in cyberbullying incidents—both as perpetrators and targets—have many problems. Addressing these painfully real issues will require applying effective risk prevention and intervention strategies. Instead of promoting such education, prevention, and intervention solutions, the Sánchez bill would simply create a new federal felony to address this problem. But criminalizing kid-on-kid behavior in whatever form will likely not solve the age-old problem of kids mistreating each other. Indeed, this problem has traditionally been dealt through counseling and rehabilitation at the local level. By contrast, the federal justice system generally works through criminal penalties. If federal criminal law has a role to play, it is in punishing clear cases of harassment of minors by adults in ways that do not chill free speech protected by the First Amendment and that are consistent with the Fourteenth Amendment’s due process guarantees. Unlike the Sánchez bill, the Menendez bill is grounded in the need to implement such counseling and rehabilitation approaches in schools and communities. If members of Congress want to enact legislation that has a chance of effectively reducing truly harmful behavior—and which avoids constitutional pitfalls and subsequent court challenges—the Menendez bill provides the best avenue to accomplish that important goal at this time.

By Berin Szoka & Adam Thierer

We’ve just released a new PFF white paper (PDF) entitled, “Cyberbullying Legislation: Why Education is Preferable to Regulation.” In this 24-page study we note that, compared to previous fears about online predation, which have been greatly overblown, concerns about cyberbullying are more well-founded. Evidence suggests the cyberbullying is on the rise and that it can have profoundly damaging consequences for children.

Unsurprisingly, in the wake of a handful of high-profile cyberbullying incidents that resulted in teen/tween suicides, some state lawmakers began floating legislation to address the issue. More recently, two very different federal approaches have been proposed. One approach is focused on the creation of a new federal crime to punish cyberbullying, which would include fines and jail time for violators. In April 2008, Rep. Linda Sánchez (D-CA) introduced H.R. 1966 (originally H.R. 6123), the “Megan Meier Cyberbullying Prevention Act,” a bill that would create a new federal felony:

“Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both.”

The other legislative approach is education-based and would create an Internet safety education grant program to address the issue in schools and communities. In mid-May, the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047) was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that will be administered by the Department of Justice, in concurrence with the Department of Education, and the Department of Health & Human Services. These agencies will also work in consultation with education, Internet safety, and other relevant experts to administer a five-year grant program, under which each grant will be awarded for a two-year period.

In our paper, we argue that criminalizing what is mostly kid-on-kid behavior—and especially creating a new federal felony, as the Sánchez bill proposes—will not likely solve the age-old problem of kids mistreating each other.  Moreover, this approach could raise thorny free speech and due process issues related to how the law defines harassing or intimidating speech. To the extent criminal sanctions are pursued as a solution, it may be preferable to allow state experimentation with varying models.

By contrast, education and awareness-based approaches have a chance of effectively reducing truly harmful behavior, especially over the long-haul. Such approaches would have the added benefit of avoiding constitutional pitfalls and subsequent court challenges. Thus, if lawmakers feel the need to address cyberbullying concerns at this time, it is clear that regulation is, at best, premature and that education is the better approach.

Our paper can be found on the PFF website or SSRN, and the Scribd version of the document is embedded down below. We welcome your comments on our conclusions.

[In a follow-up post, we will address why the criminalization approach to addressing cyberbullying raises free speech concerns and other constitutional issues.]

As Berin mentioned last week, we have a new paper out on proposals to expand the Children’s Online Privacy Protection Act (COPPA) of 1998.   We generically refer to those COPPA-expansion efforts as “COPPA 2.0.” Hence, the title of our paper: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.”  To recap what Berin already noted, in the name of improving online child safety, some legislators and state attorneys general (AGs) are advocating the expansion of COPPA’s “verifiable parental consent” model of age verification before certain sites or services may collect, or enable the sharing of, personal information for children.

Unlike “COPPA 1.0,” however, which only applied to children under the age of 13, “COPPA 2.0” would apply to all minors up to age 17.  Moreover, the range of sites covered by the new law would generally be expanded to include just about any site or service with social networking functionality.

Since Berin has already summarized our general concerns with efforts to expand COPPA’s “verifiable parental consent” online age verification system to cover more online users and sites, I thought I would focus here on what I believe will be the most controversial (and important) part of our paper — our discussion about how COPPA 2.0 affects the speech rights of both adults and adolescents.

Remember COPA?

To understand why COPPA expansion will raise serious First Amendment issues, we first need to step back and recall the legal battle over the Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA.  Both COPPA and COPA rest on a stratification of users by age, but the approach of the two laws is very different: While COPPA requires age verification if content is “directed at” minors under age 13, COPA would have required that all website operators restrict access to material deemed “harmful to minors” by minors under the age of 17 and therefore requires age verification of all users who attempt to access such content (in order to identify minors). COPPA is focused on certain kinds of potentially harmful contacts while COPA is focused on potentially harmful content.

But by expanding the age range of COPPA to include adolescents, COPPA 2.0 proposals essentially converge with COPA, reaching the same practical consequence: age verification mandates for large numbers of adults as users (not as parents). Only the scope of sites covered by the laws is different: under COPA, sites deemed “harmful to minors,” and, under COPPA 2.0, adolescent-oriented or certain social networking sites. Thus, to the extent that COPPA 2.0 proposals require age verification of adults, they would be subject to constitutional attacks similar to those against COPA.  But COPPA 2.0 proposals would also burden the rights of adults to communicate with adolescents and the free speech rights of adolescents.

Finally, the fact that COPPA (like COPA) applies only to commercial sites would do little to protect it from constitutional attack, because in a world of user-generated content, the commercial nature of a site has little to do with the commercial/non-commercial nature of the speech carried on it. For example, obviously commercial sites like MySpace and Facebook serve as platforms for a wide variety of not-for-profit and political communications.

How COPPA 2.0 Would Impact the Free Speech Rights of Adults

After a decade-long court battle over the constitutionality of COPA, the U.S. Supreme Court in January 2009 rejected the government’s latest request to revive the law, meaning it is likely dead. Three of the key reasons the courts struck down COPA would also apply to COPPA 2.0 proposals.

(1) First, like COPA, COPPA  2.0 would raise burden the speech rights of adults to access information subject to age verification requirements, both by making speech more difficult and by stigmatizing it.  In 2003, the Third Circuit noted that age verification requirements “will likely deter many adults from accessing restricted content, because many Web users are simply unwilling to provide identification information in order to gain access to content, especially where the information they wish to access is sensitive or controversial.” In 2008, in striking down COPA for the third and final time, the Third Circuit approvingly quoted the district court, which had noted that part of the reason age verification requirements deterred users from accessing restricted content was “because Internet users are concerned about security on the Internet and because Internet users are afraid of fraud and identity theft on the Internet.” The district court had held that: “Requiring users to go through an age verification process would lead to a distinct loss of personal privacy” by threatening their anonymity.

By imposing broad age verification requirements, COPPA 2.0 would restrict the rights of adults to send and receive information anonymously just as COPA did. If anything, the speech burdened by COPPA 2.0 deserves more protection, not less, than the speech burdened by COPA: Where COPA merely burdened access to content deemed “harmful to minors” (viz., pornography), COPPA 2.0 would burden access to material by adults as well as minors not because that material is harmful or obscene but merely because it is “directed at” minors! Thus, the content covered by COPPA 2.0 proposals could include not merely pornography, but communications about political nature, which deserved the highest degree of First Amendment protection.

(2) Second, like COPA, COPPA expansion threatens the speech rights of website operators. The necessary corollary of blocking adults from accessing certain content anonymously — and thereby deterring some users from accessing that content — is that COPPA 2.0, like COPA, would necessarily reduce the audience size of websites subject to age verification mandates. Furthermore, such mandates would encourage websites to self-censor themselves to avoid offering content they fear could be considered “directed at” adolescents because doing so might subject them to an age verification mandate — or to legal liability if they fail to implement age verification. The substantial cost of age verification could significantly impact, if not make impossible, the business models of many personal information-collecting (PI) sites, which generally do not charge for content and rely instead on advertising revenues. The Third Circuit cited all of these burdens on the free speech rights of website operators in striking down COPA.

(3) Third, less restrictive alternatives are available to COPPA 2.0, just as they were for COPA.

The Third Circuit drew on the Supreme Court’s 2004 decision striking down COPA on the grounds that “blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children’s access to materials harmful to them.” Similarly, parental control software already empowers parents to restrict their kids’ access to PI-collecting sites. (It’s particularly easy for parents to restrict access to the leading social networking sites that seem to be driving so much of the push for COPPA 2.0, so that their kids.)

Thus, the free speech rights burdened COPPA 2.0 proposals are at least as important as those burdened by COPA, and blocking software already empowers parents to restrict their kids’ access to PI-collecting sites, just as it allows parents to restrict access to pornography. Of course, if COPPA 2.0 laws were actually enacted and subject to legal challenge, the outcome of the case would depend largely on the level of constitutional scrutiny involved. COPPA 2.0 advocates might argue that, whatever the rights at stake, a lower level of constitutional scrutiny should apply because COPPA 2.0 does not target a special category of content. If true, this could mean that, although age verification mandates to restrict access to “harmful” material are unconstitutional, far more sweeping mandates restricting access to non-harmful information could be constitutional. Such inconsistency is indeed a perverse consequence of the fact that our First Amendment jurisprudence focuses not on the rights at stake, but on whether a regulation is “content-neutral” in deciding what level of scrutiny to apply—which, in turn, often determines the outcome of the case. But in this case, COPPA 2.0 proposals likely would be subject to strict scrutiny to the extent that they are, like COPA, focused on a certain category of content: that “directed at” adolescents (rather than “harmful to minors”).

Legislators who attempt to escape strict scrutiny by defining the scope of their bill not by its targeted audience but by reference to specific functional capabilities (in the definition of “social networking site”) will likely find that a court will see through such window-dressing: If they recognize that such bills are nonetheless aimed at a certain category of adolescent-oriented content, they will apply strict scrutiny anyway. But even under intermediate scrutiny, COPPA 2.0 proposals would be subject to serious attack.

Minors Have Speech Rights, Too!

In addition, in COPPA 2.0 approaches, the government would restrict the ability of adolescents to access content, not because it could be harmful to them or because it is obscene, but merely because it is “directed to” them. While the First Amendment rights of minors may not be on par with those of adults, adolescents do have the right to access certain types of information and express themselves in certain ways. The Supreme Court has held (in Planned Parenthood of Cent. Mo. v. Danforth) that “constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority.” It remains unclear how an expanded COPPA model might interfere with the First Amendment rights of adolescents, but it is clear that privacy and speech rights would come into conflict under COPPA 2.0, as they do in other contexts.

For example, how might the parental-consent based model limit the ability of adolescents to obtain information about “safer sex” or how to deal with trauma, depression, family abuse, or addiction. Would an abusive father authorize a teen to visit a website about how to report child abuse? Would a parent of an adolescent struggling with their sexual identity let their kid participate in a self-help social networking page for gay and lesbian youth? What rights are at play here and how do we reconcile them?

Maintaining the ability of kids to participate online interactions goes beyond content that most people would recognize as “serious”—from the perspective of both First Amendment values and the education of children. As a recent MacArthur Foundation study of the online youth Internet use concluded:

Contrary to adult perceptions, while hanging out online, youth are picking up basic social and technological skills they need to fully participate in contemporary society. Erecting barriers to participation deprives teens of access to these forms of learning. Participation in the digital age means more than being able to access “serious” online information and culture.

It was at least in part in recognition of such difficult First Amendment questions that Congress removed the requirement in the initial legislative draft of COPPA that would have required PI-based sites to “use reasonable efforts to provide the parents with notice and an opportunity to prevent or curtail the collection or use of personal information collected from children over the age of 12 and under the age of 17.”

Even if parents have an absolute right to block their adolescents’ access to such data, they can already exercise that right by applying strict controls on the computers in their home. COPPA 2.0 proposals go well beyond recognizing this right by setting the default to “parental consent required” for adolescents to access a wide range of content—meaning that parents must “opt-in” on behalf of their children before their children can participate in PI-collecting sites. This, in turn, burdens the ability of adolescents to communicate, because their parents might censor (rightly or wrongly) certain information, or simply fail to understand the technologies involved or to be actively engaged. But whatever the free speech rights of adolescents, if anyone should be interfering with those rights, it should be their parents — not the government.

Some parents may object that, however effective parental control software may be in the home, it does not allow parents to control what their kids’ access outside the home. This argument is understandable on some level, but in the end, it amounts to a demand that roadblocks be put up everywhere for the sake of particularly sensitive parents at the expense of everyone else in society, including potentially huge numbers of adult users — and of online anonymity in general.

But Illinois’s COPPA 2.0 proposal goes even further, not merely expanding COPPA to cover a particular variety of social networking sites, but requiring that such sites “allow the parent or guardian of the minor unrestricted access to the profile webpage of the minor at all times.” Congress considered just such a parental access mandate in the initial draft of COPPA legislation back in 1998, but ultimately removed it from the final version of the legislation, apparently because even some of COPPA’s supporters worried, given the bill’s initial application to the 13-16 age bracket, that “The establishment of a parental right to access all personal information about a teenager may intrude on older minors’ privacy, rather than protect.”

What about Communication between Adolescents & Adults?

Finally, COPPA 2.0 could infringe on the free speech rights of adults to communicate with adolescents online by driving PI-collecting sites to segregate users by age or to attempt to block access by adolescents. The vast majority of adult-minor interactions online are not of a harassing or predatory nature—indeed, they generally involve adults looking to help or assist minors in various ways. As the MacArthur Foundation study cited above concluded:

In contexts of peer-based learning, adults … have an important role to play, though it is not the conventionally authoritative one. In friendship-driven practices, direct adult participation is often unwelcome, but in interest-driven groups we found a much stronger role for more experiences participants to play. Unlike instructors in formal educational settings, however, these adults are passionate hobbyists and creators, and youth see them as experienced peers, not as people who have authority over them. These adults exert tremendous influence in setting communal norms and what educators might call “learning goals,” though they do not have direct authority over newcomers.

A substantial portion of those interactions involve parents talking to their own kids, older and younger siblings communicating with one another, teachers and mentors talking to their students, or even co-workers of different ages communicating. Even when adult-minor communications involve complete strangers, there is typically a socially-beneficial purpose. Think of two people — one an adult and one a minor — debating politics on a discussion board, or creating a Wikipedia entry together. What about a presidential campaign website that involves millions of volunteers of all ages communicating and collaborating to a common purpose? There are countless other examples. How would such interactions be affected by COPPA 2.0? Restricting such interactions would raise profound First Amendment concerns about freedom of speech as well as of association.

In any First Amendment analysis, a court must consider not only the free speech rights at stake and the availability of less restrictive alternatives to regulation, but the governmental interest being advanced. Again, neither COPPA nor the COPPA 2.0 proposals discussed herein (e.g., the New Jersey and Illinois proposals) requires exclusion of older users from a website, nor directly governs the sharing of personal information among users (where that sharing does not also constitute collection by the site itself). But separation of adolescents from adults is likely to be an indirect effect of COPPA 2.0 requirements—as COPPA 2.0 advocates probably realize—because, once PI-collecting sites are required to age-verify users, they will face reputational, political and potentially legal pressure to make interactions between adolescents and children more difficult in the name of “child safety.” More subtly, if PI-collecting site operators have an incentive to avoid being considered “directed at” adolescents, they will also have an incentive to discourage adolescent participation on their site—which achieves a similar result.

Here, one must further ask if attempting to quarantine children from adults (however indirectly) actually advances, on net, a strong governmental interest in child protection. Such a quarantine is unlikely to stop adults with truly nefarious intentions from communicating with minors, as systems designed to exclude participation by adults in a “kids-only” or “adolescents-only” area can be easily circumvented. Given the lack of strong identity records for minors, it’s much easier for an adult to pretend to be a minor than vice versa. The effect of age stratification on truly bad actors is likely to be marginal at best—or harmful at worst: Building walls around adolescents through age-verification might actually make it easier for predators to target teens, since a predator who gains access to a supposedly teen-only site will be less likely to be exposed as a predator by targeting an adult they think is a teen. So for the sake of marginal (if any) gains in child protection, would we not be excluding beneficial interaction between adults and minors?

To hear some of the advocates of COPPA 2.0 talk about how teens currently behave online, one might think that online environments in which adolescents were left to their own devices—imagine a “Teen MySpace” for the 13-17 crowd, walled off from the rest of MySpace—would be far worse, perhaps an online version of Lord of the Flies. These concerns are clearly exaggerated: The critics frequently complain about “the way kids talk to each other these days” while looking at their own past adolescent banter with rose-colored lenses. What is clear is that adolescents (and young adults) behave better in online environments where adults are present, too. Perhaps the best demonstration of this fact has been the uproar from adolescents and young adults that has accompanied Facebook’s explosive growth in popularity among older users in recent months. Many kids hate the idea of adults joining Facebook precisely because the presence of adults encourages kids to “self-regulate” by exercising better judgment and following better netiquette.

Anne Collier, founder and executive director of the child safety advocacy organization Net Family News, Inc. and editor of NetFamilyNews.org and ConnectSafely.org, suggests that the push for “segregation” by age (e.g., creating a teen-only version of Second Life) for safety’s sake is “losing steam” because:

it’s a response to the predator panic teens and parents have been subjected to in U.S. society, not to the realities of youth on the social Web. What nearly a decade of peer-reviewed academic research shows is that peer-to-peer behavior is the online risk that affects many more youth, the vast majority of online kids who are not already at-risk youth offline. Segregating teens from adults online doesn’t address harassment, defamation, imposter profiles, cyberbullying, etc. It may help keep online predators away from kids (even though online predation, or abuse resulting from online communication, constitutes only 1% of overall child sexual exploitation…), which is a great outcome, but it’s not enough unless all that parents are worried about is predators.

Collier discusses the particularly acute problem of “actual or perceived sexual orientation and gender expression,” which the Salt Lake Tribune has noted are “two of the top three reasons secondary school students said their peers were most often bullied at school.” This kind of harassment recently attracted widespread public attention after two 11-year-old boys committed suicide after experiencing anti-gay harassment and bullying at school. Nationwide, “Lesbian, gay, bisexual, transgender and questioning youth are up to four times more likely to attempt suicide than their heterosexual peers.” This child safety risk is painfully real, with anti-gay harassment being only its most obvious form. But “segregating” teens from adults seems likely to aggravate this problem by removing adults from the mix as a potential source of discipline.

Of course, adults play a critical role in disciplining interaction among the 0-12 age bracket, but not as direct participants in on-site interaction. Again, how many adults actually want to use Club Penguin? Instead, parents can supervise what their kids do online through parental control software. Parents could, of course, use that same software to monitor what their adolescent kids do, too. But as kids get older, most parents realize that the training wheels have to come off at some point. Few parents will want to spy on their 17-year old until the day before the kid starts college (or enlists in the military or gets married). But most parents probably would prefer that, if their kids are interacting in an online environment, they think twice about what they do and say online. It is by no means clear that restricting online interaction between teens and adults will serve that end.

As faithful readers no doubt know, I’m a big fan of Section 230 and believe it has been the foundation of a great many of the online freedoms we enjoy (dare I say, take for granted?) today. That’s why I’m increasingly concerned about some of the emerging thinking and case law I am seeing on this front, which takes a decidedly anti-230 tone.

Consider, for example, how some might weaken Sec. 230 in the name of “child safety.”  You will recall the friendly debate about the future of Sec. 230 that I engaged in with Harvard’s John Palfrey.  Prof. Palfrey has argued that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.”  Similarly, Andrew LaVallee of The Wall Street Journal reported from a conference this week that Sec. 230 became everyone’s favorite whipping boy, with several participants suggesting that the law needs to be re-opened and altered to somehow solve online “cyber-bullying” problems.

There’s also some potential trouble brewing in the courts, as Braden Cox noted recently.  As usual, the prolific Eric Goldman has the best summary of what’s been going on over at his Technology & Marketing Law Blog. After Eric’s takes a close look at the most recent 230-related case of Barnes v. Yahoo!, Inc., which contained some troubling language about 230, he continues on to note:

47 USC 230 has weathered plaintiff attacks very well in the past dozen years, but the last 6 months have opened up a number of angles for plaintiffs to explore. Consider the track record: * Woodhull (October): soliciting and publishing a defamatory third party email wasn’t covered by 230 * Doe v. SexSearch (December): as mentioned, the court stepped back from saying 230 preempted liability for marketing representations * StubHub (January): interference with business claim wasn’t preempted by 230 * Gourlay (March): web host who provided extra commercial services to its customer couldn’t claim 230 * Project Playlist (March): 230 doesn’t preempt state IP claims (this is a loss only because it contravenes the wrongly decided Ninth Circuit ccBill case, which was more defense-favorable). * This case, saying that a promissory estoppel claim isn’t preempted by 230. I’m not sure what to make of this trend, but it’s clear that we’re finally finding some substantial limits in 230’s reach, and that’s creating new litigation opportunities for plaintiffs.

And let’s be clear about why these trends are so troubling. Keeping online intermediaries free from burdensome policing requirements and liability threats has created the vibrant marketplace of expression and commerce that we enjoy today. If not for Sec. 230, we would likely live in a very different world today.  The alternative approach of strict secondary liability on ISPs and other online intermediaries would have a profound “chilling effect” on online free speech and expression.  That’s why Sec. 230 is so important, and worth defending.

Today, the U.S. Department of Commerce’s National Telecommunications and Information Administration (NTIA) announced the members of the new Online Safety and Technology Working Group (OSTWG).  I am honored to be among those chosen to participate in this new task force and I look forward to continuing the work started last year with the Harvard Berkman Center’s Internet Safety Technical Task Force (ISTTF), which I also served on.   I was very proud of the work done by the ISTTF and the impressive final report that Prof. John Palfrey crafted to reflect our findings.  I am eager to investigate these issues further and take a look at the latest research and technologies that can help us better understand how to protect our kids online while also protecting the free speech and privacy rights of Netizens.

The new NTIA working group, which was established under the “Protecting Children in the 21st Century Act,” will report to the Assistant Secretary of Commerce for Communications and Information on industry-implemented online child safety tools and efforts. Within a year of convening its first meeting, the group will submit a report of its findings and make recommendations on how to increase online safety measures.

Below the fold I have listed the complete roster of OSTWG task force members.  I very much looking forward to working with this outstanding group.  And I’m happy to report that my TLF blogging colleague Braden Cox will be joining me on this task force!

Ms. Parry Aftab, WiredSafety Ms. Elizabeth Banker, Yahoo! Inc. Mr. Christopher Bubb, AOL Ms. Anne Collier, Net Family News, Inc./ConnectSafely.org Mr. Braden Cox, NetChoice Coalition Ms. Caroline Curtin, Microsoft Mr. Brian Cute, Afilias U.S.A. Mr. Jeremy Geigle, Arizona Family Council Ms. Marsali Hancock, Internet Keep Safe Coalition Mr. Michael Kaiser, National Cyber Security Alliance Mr. Christopher Kelly, Facebook Mr. Brian Knapp, Loopt, Inc. Mr. Timothy Lordan, Internet Education Foundation Mr. Larry Magid, SafeKids.com/ConnectSafely.org Mr. Brian Markwalter, Consumer Electronics Association Mr. Michael McKeehan, Verizon Communications, Inc. Dr. Samuel McQuade, III, Rochester Institute of Technology Ms. Orit Michiel, Motion Picture Association of America, Inc. Mr. John Morris, Center for Democracy & Technology Mr. Jonathon Nevett, Network Solutions, LLC Mr. Hemanshu Nigam, MySpace/Fox Interactive Media Ms. Jill Nissen, Ning, Inc. Mr. Jay Opperman, Comcast Corporation Mr. Kevin Rupy, United States Telecom Association Mr. John Shehan, National Center for Missing & Exploited Children Mr. K. Dane Snowden, CTIA – the Wireless Association Mr. Adam Thierer, Progress & Freedom Foundation Ms. Patricia Vance, Entertainment Software Rating Board Mr. Ralph Yarro, The CP80 Foundation

• denotes co-chairs of the task force

My friend Anne Collier of Net Family News, one of America’s great sages on child safety issues, has produced a terrific list of reasons “Why Technopanics are Bad.”  Technopanics and moral panics are topics I’ve spent quite a bit of time commenting on here. (See 1, 2, 3, 4.) Anne is a rare voice of sanity and sensible advice when it comes to online child safety issues and I encourage you to read all her excellent work on the subject, including her book with Larry Magid, MySpace Unraveled: A Parent’s Guide to Teen Social Networking.  Anyway, here’s Anne’s list, and I encourage you to go over to her site and contribute your thoughts and suggestions about what else to add:

Technopanics are bad because they…

• Cause fear, which interferes with parent-child communication, which in turn puts kids at greater risk.
• Cause schools to fear and block digital media when they need to be teaching constructive use, employing social-technology devices and teaching new media literacy and citizenship classes throughout the curriculum.
• Turn schools into barriers rather than contributors to young people’s constructive use.
• Increase the irrelevancy of school to active young social-technology users via the sequestering or banning of educational technology and hamstring some of the most spirited and innovative educators.
• Distract parents, educators, policymakers from real risks – including, for example, child-pornography laws that do not cover situations where minors can simultaneously be victim and “perpetrator” and, tragically, become registered sex offenders in cases where there no criminal intent (e.g., see this).
• Reduce the competitiveness of US education among developed countries already effectively employing educational technology and social media in schools.
• Reduce the competitiveness of US technology and media businesses practicing good corporate citizenship where youth online safety is concerned.
• Lead to bad legislation, which aggravates above outcomes and takes the focus off areas where good laws on the books can be made relevant to current technology use.
• Widen the participation gap for youth – technopanics are barriers for children and teens to full, constructive participation in participatory culture and democracy.

As anyone who has spent time searching for comments on the FCC’s website can tell you, the agency doesn’t exactly have the most user-friendly website.  In the interest of making it easier for others to read the comments that came in last week in the agency’s “Child Safe Viewing Act” Notice of Inquiry, I have compiled all the major comments (those over 3 or 4 pages) and provided links to them below the fold.

Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  I filed 150+ pages worth of comments in this matter last week, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.

• Association of National Advertisers (ANA)
• AT&T
• Center for Democracy & Technology (Individual Comments)
• CDT (Joint Comments with other Public Interest Groups)
• Children’s Media Policy Coalition
• Coalition for Independent Ratings
• Comcast
• Common Sense Media
• Consumer Electronic Association (CEA)
• CTIA – The Wireless Association
• Cox Communications
• CustomPlay
• Digimarc Corp
• Digital Watermarking Alliance
• Digital Media Association
• Dish Network
• DirecTV
• Entertainment Software Association (ESA)
• Family Online Safety Institute (FOSI)
• Google (+ attachments A, B, C)
• Motion Picture Association of America (MPAA)
• Microsoft
• NAB + NCTA + MPAA (0n TV Guidelines)
• National Cable & Telecommunications Association (NCTA)
• Progress & Freedom Foundation (PFF)
• Sanyo
• Smart Television Alliance
• Sprint-Nextel
• TiVo
• TV Guardian
• TV Watch
• U.S. Telecom Association
• Verizon & Verizon Wireless
• Wi-LAN V-Chip Corp

Today I filed comments with the Federal Communications Commission (FCC) in its proceeding examining the marketplace for “advanced blocking technologies.”  This proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  My colleagues will no doubt laugh about the fact that I have dropped an absurd 150 pages worth of comments on the FCC in this matter, but I had a lot to say on this topic!  Parental controls, child safety, and free speech issues have been the focus of much of my research agenda over the past 10 years.

In my filing, I argue that the FCC should tread carefully in this matter since the agency has no authority over most of the media platforms and technologies described in the Commission’s recent Notice of Inquiry.  Moreover, any related mandates or regulatory actions in in this area could diminish future innovation in this field and would violate the First Amendment rights of media creators and consumers alike.  The other major conclusions of my filing are as follows:

• There exists an unprecedented abundance of parental control tools to help parents decide what constitutes acceptable media content in their homes and in the lives of their children.
• There is a trade-off between complexity and convenience for both tools and ratings, and no parental control tool is completely foolproof.
• Most homes have no need for parental control technologies because parents rely on other methods or there are no children in the home.
• The role of household media rules and methods is underappreciated and those rules have an important bearing on this debate.
• Parental control technologies work best in combination with educational efforts and parental involvement.
• The search for technological silver-bullets and “universal” solutions represent a quixotic, Holy Grail-like quest and it will destroy innovation in this marketplace.
• Enforcement of “household standards” made possible through use of parental controls and other methods negates the need for “community standards”-based content regulation.

My entire filing can be found here and down below in a Scribd reader.  All comments in the matter are due tomorrow and then reply comments are due on May 18th.

[FCC FILING] Adam Thierer-PFF Re Child Safe Viewing Act NOI (MB 09-26) http://d.scribd.com/ScribdViewer.swf?document_id=14264143&access_key=key-2nrvjm96q9cl5vep567l&page=1&version=1&viewMode=

Ars Technica has just posted the transcript of a friendly debate I recently engaged in with Harvard University law professor John Palfrey about the future of Section 230 of the Communications Decency Act and online liability more generally.  Our debate got started last fall, shortly after I penned a favorable review of John’s excellent new book (with Urs Gasser), Born Digital: Understanding the First Generation of Digital Natives.  [Listen to my podcast with John about it here.]  Although I enjoyed John’s book, I also raised some concerns about his call in the book to reopen and revise Section 230, specifically to address child safety concerns.  At the time, John and I were working together on the Berkman Center’s “Internet Safety Technical Task Force” and we decided to begin an e-mail exchange about the future of 230 and online liability norms more generally.  The result was the debate that Ars has just published.

In our exchange, I begin by asking John to more fully develop some statements and proposals he sets forth in Born Digital.  Specifically, he and co-author Urs Gasser argue that: “The scope of the immunity the CDA provides for online service providers is too broad” and that the law “should not preclude parents from bringing a claim of negligence against [a social networking site] for failing to protect the safety of its users.” They also suggest that “There is no reason why a social network should be protected from liability related to the safety of young people simply because its business operates online.” Specifically, the call for “strengthening private causes of action by clarifying that tort claims may be brought against online service providers when safety is at stake,” although they do not define those instances.

Using those proposals as a launching point for our discussion, I challenge John as follows:

I’m troubled by your proposals because I believe Section 230 has been crucial to the success of the Internet and the robust marketplace of online freedom of speech and expression. In many ways — whether intentional or not — Section 230 was the legal cornerstone that gave rise to many of the online freedoms we enjoy today. I fear that the proposal you have set forth could reverse that. It could lead to crushing liability for many online operators-and not just giants like MySpace or Facebook-that might not be able to absorb the litigation costs. Could you elaborate a bit more about your proposal and explain why you think the time has come to alter Section 230 and online liability norms?

And John does and then we go back-and-forth from there.  Again, you can read the whole exchange over at Ars.

It was a great pleasure to engage in this exchange with Prof. Palfrey and I look forward to what others have to say in response to our debate.  I am working on a longer paper looking broadly at the rising threats to Sec. 230 and the increasing calls for expanded online liability and middleman deputization.  I will use whatever feedback I get from this exchange to refine my paper and proposals.

Just FYI, the latest update of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now live. The new version, Version 3.1, provides minor updates to all sections of the book and a new appendix of relevant research in the field. I issue major updates early each year and 1 or 2 tweaks during the course of the year to reflect the evolution of the parental control and online child safety market and debate.

For those not familiar with the report, it explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”

The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past two years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.

PFF has just releasing an updated edition of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods.” The new version, Version 3.0, includes two new appendixes and updates to each section to reflect new parental control tools and programs developed in the last nine months.

The updated report is timely as it comes on the heels of the recently-announced Internet Safety Technical Task Force, which is being chaired by the Berkman Center for Internet & Society at Harvard Law School. I am privileged to serve as a member of the Task Force, which is evaluating various online safety technologies and strategies and then reporting back to state attorneys general with our findings.

Those issues and much more are covered in the latest edition of my report. The report explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”

Version 3.0 of the special report, now over 200 pages, contains over fifty exhibits and numerous updates in all five sections of the book. Major updates have been made to the Internet, social networking, and mobile media sections, reflecting the growing importance of those sectors and issues. A greatly expanded section on video empowerment technologies has also been included. Finally, two appendices have also been added: a comprehensive legislative index cataloging over thirty bills introduced in Congress on these issues (complied with John Morris of Center for Democracy & Technology), and a glossary of 35 relevant terms and cases.

The report is available free-of-charge on the PFF website, as are the previous editions. And I am happy to provide hard copies to those who are interested.

PFF has just released my latest paper entitled “Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation.” In the report, I focus on the extent to which new video technologies, such as digital video recorders (DVRs) and video on demand (VOD) services, are changing the way households consume media and are helping parents better tailor viewing experiences to their tastes and values. I provide evidence showing the rapid spread of these technologies and discuss how parents are using these tools in their homes. Finally, I argue that these developments will have profound implications for debates over the regulation of video programming. As parents are given the ability to more effectively manage their family’s viewing habits and experiences, it will lessen—if not completely undercut—the need for government intervention on their behalf.

This 16-page report can be found at: http://www.pff.org/issues-pubs/pops/pop14.20DVRboomcontentreg.pdf