I’ve been floating around in conservative policy circles for 30 years and I have spent much of that time covering media policy and child safety issues. My time in conservative circles began in 1992 with a 9-year stint at the Heritage Foundation, where I launched the organization’s policy efforts on media regulation, the Internet, and digital technology. Meanwhile, my work on child safety has spanned 4 think tanks, multiple blue ribbon child safety commissions, countless essays, dozens of filings and testimonies, and even a multi-edition book.

During this three-decade run, I’ve tried my hardest to find balanced ways of addressing some of the legitimate concerns that many conservatives have about kids, media content, and online safety issues. Raising kids is the hardest job in the world. My daughter and son are now off at college, but the last twenty years of helping them figure out how to navigate the world and all the challenges it poses was filled with difficulties. This was especially true because my daughter and son faced completely different challenges when it came to media content and online interactions. Simply put, there is no one-size-fits-all playbook when it comes to raising kids or addressing concerns about healthy media interactions.

Something Must Be Done!

My personal approach, as I summarized in my book on these issues, was to first and foremost do everything in my power to (a) keep an open mind about new media content and platforms, and (b) ensure an open line of ongoing communication with my kids about the issues they might be facing. Shutting down conversation or calling for others to come in and save the day were the worst two options, in my opinion. As I summarized in my book, “At the end of the day, there is simply no substitute for talking to our children in an open, loving, and understanding fashion about the realities of-this world, including the more distasteful bits.” This was my Parental Prime Directive, if you will. I just always wanted to make sure that my kids felt like they could talk to me about their issues, no matter how varied, horrible, or heart-breaking those problems might be.

When talking with other parents through the years, I’ve heard about their own unique concerns and struggles. Every family faces different challenges because no two kids or situations are alike. Moreover, the challenges can feel overwhelming in our modern world of information abundance, which is flush with ubiquitous communications and media options. Sometimes these parental frustrations can fester and grow into a sort of rage until you finally hear folks utter that famous phrase: Something must be done! And that “something” is often some sort of government regulation “for the children.”

Again, I get it. When all your best efforts to help or protect your kids don’t seem to work according to plan, it’s only natural to call for help. But there are very serious problems associated with calling on government for that help. When legislators and regulators are asked to play the role of National Nanny, it comes with all the same baggage that accompanies many other efforts by the government to intervene in our lives or control what people or organizations can say or do.

Conservative Contradictions

These are particularly sensitive issues for many conservatives, both because conservatives tend to have more heightened concerns about media content and online safety issues, and also because the steps they often recommend to address these issues can quickly come into conflict with their own first principles.

Let me run through six ways that support for media content controls and child safety regulations can sometimes run afoul of conservative principles.

1) It’s a rejection of personal responsibility

Again, I understand all too well how hard parenting can be. But that does not mean we should abdicate our parental responsibilities to the State. Conservatives have spent decades fighting government when it comes to broken schools and the supposed brainwashing many kids get in them. The rallying cry of conservatives has long been: Let us have a greater say in how we raise and educate our children because the State is failing us or betraying our values.

Thus, when conservatives suggest that the State should be making decisions for us as it pertains to anything the government says is a “child safety” issue, there is some serious cognitive dissonance going on there. In his humorous Devil’s Dictionary, Ambrose Bierce jokingly defined responsibility as, “A detachable burden easily shifted to the shoulders of God, Fate, Fortune, Luck or one’s neighbor. In the days of astrology it was customary to unload it upon a star.” For parental responsibility to actually mean something, it has to be more than a “detachable burden” that we unload upon government.

2) It’s an embrace of the administrative state & arbitrary rule by unelected bureaucrats

Beyond the classroom, conservatives have long been concerned about the specter of massive administrative agencies and armies of unelected bureaucrats controlling our lives from the shadows. I’ve spent decades working with conservative organizations and scholars trying to get the administrative state under some control to scale back its enormous power, arbitrary edicts, and costly burdens. Over-criminalization has become such a problem that, according to the Heritage Foundation, “regulatory offenses… have proliferated to the point that, literally, nobody knows how many federal criminal regulations exist today.” We’re all criminals of some sort in the eyes of the modern regulatory state.

Yet, when conservatives advocate the expansion of the administrative state through new “online safety” regulations, they are just making the over-criminalization problem worse, including by treating our own children as guilty parties for simply trying to access the primary media platforms of their generation and interact with their friends there. For example, calls to ban all teens from social media until they’re 18 would result in the most massive “forbidden fruit” nightmare in American history, with every teen suddenly becoming a criminal actor and working together to tunnel around bans using the same sort of VPNs and evasion technologies people in China and other repressive nations use to get around over-bearing speech policies. [See: “Again, We Should Not Ban All Teens from Social Media”]

Needless to say, all this regulation and bureaucratic empowerment would have massive negative externalities for online freedom more generally as the era of “permissionless innovation” is replaced by a new age of permission-slip regulation.

3) It’s a rejection of the First Amendment & free speech rights

Conservatives have spent many decades pushing for greater First Amendment-based freedoms as it pertains to religious liberty and or organizational/corporate speech issues. Thus, when conservatives seek to undermine free speech principles and jurisprudence in the name of child safety, it could undo everything conservatives have been fighting to accomplish in those other contexts.

Conservatives are understandably upset with some social media platforms for being too over-zealous with certain types of speech takedowns or de-platformings. But two wrongs don’t make a right, and they should not be calling on Big Government to be imposing its own editorial judgments in place of private actors. [See: “The Great Deplatforming of 2021“ and “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer.“]

4) It’s a rejection of property rights and freedom more generally

Related to the previous two points, conservatives have long upheld the sanctity of property rights in many different contexts. This includes the property rights that private establishments enjoy under the Constitution to generally decide how to structure their operations, who they will do business with, and how they will do so. Private organizations and religious institutions possess not only free speech rights in this regard, but property and contractual rights, too.

But when it comes to “child safety” mandates, some conservatives would toss all this out the window and undermine those rights, replacing them with burdensome regulatory mandates that tell private parties how to conduct their affairs. Again, there’s a lot of cognitive dissonance going on here and it could have serious blowback for conservatives when the property / contractual rights of other people or organizations are undermined on similar grounds.

5) It’s an embrace of frivolous lawsuits & the trial lawyers that bring them

The last time I checked, trial lawyers were not exactly the most conservative-friendly constituency. For many decades, conservatives have looked to advance tort reform, limit junk science and frivolous lawsuits, and make sure that the courts don’t engage in excessive judicial activism.

Unfortunately, many of the child safety regulations being proposed today would empower the regulatory state and trial lawyers at the same time. Many of the bills being floated open the door to open-ended litigation and potentially punishing liability for private platforms — and not just against deep-pocketed “Big Tech” companies. The fact is, once conservatives open the litigation floodgates based on amorphous accusations of potential online safety harms, they will be empowering the tort bar (one of the biggest supporters of the Democratic Party, no less) to launch a legal jihad against any and every media platform out there. Good luck putting that genie back in the bottle once you unleash it.

6) It’s an embrace of the same moral panic arguments your parents leveled against you

How quickly we forget the accusations our own parents and others leveled against us as children. Remember when video games were going to make us a lost generation of murderous youth? Or when rap and rock-and-roll music were going to send us straight to hell? Today, those kids are all grown up and trying to tell us that they are fine but it’s this latest generation that is doomed. It’s just an endless generational cycle of moral panics. [See: “Why Do We Always Sell the Next Generation Short?” and “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics”] Today’s conservatives need to remember that they, too, were once kids and somehow muddled through to adulthood.

The “3-E” Approach Is the Better Answer

At this point, some of the people who’ve read this far are screaming at the screen: “So, are you saying we should just do nothing!?”

Absolutely not. But it is important that we consider less onerous and more practical ways to address these challenging issues without falling prey to Big Government gimmicks that would undermine other important principles. We should start by acknowledging that there are no easy fixes or silver-bullet solutions. The plain truth of the matter is that the best solutions here can seem messy and unsatisfying to many because they require enormous ongoing efforts to mentor and assist our kids at a far deeper level than some folks are comfortable with.

For example, it is just insanely uncomfortable to have to speak with your kids about online bullying or harassment, pornography, violence in movies and games, hate speech, and so on. And I haven’t even mentioned the hardest things to talk to kids about: The daily news of the real world: wars, violence, tragic accidents, famines, etc. Honestly, the hardest conversations I’ve had to have with my kids were those about school shootings. By comparison, many other discussions about online content and interactions were much easier. To the extent that we’re attempting to measure and address negative media affects, I firmly believe that there a few things in this world more horrifying to kids — or harder to talk with them about — than the first 10 minutes of what’s on cable news each hour of the day.

Regardless, whether we’re talking about the potential “harms” or mass media or online content, we cannot pretend there exists a simple solution to any of it. Here’s the better approach.

I recently authored a study for the American Enterprise Institute on, “Governing Emerging Technology in an Age of Policy Fragmentation and Disequilibrium.” It was my attempt to sketch out a flexible, pragmatic, bottom-up set of governance principles for modern technology platforms and issues. In that report, I noted how “[t]he First Amendment constitutes a particularly high barrier to the use of hard law in the United States,” and that court challenges were likely to continue to block many of the regulatory efforts being floated today, just as been the case countless times before in recent decades. Thus, we need to have backup approaches to online safety beyond one-size-fits-all regulatory Hail Mary passes.

I have described that backup plan as the “3-E” approach or “layered approach” to online safety:

• Empowerment of parents: Parental controls cannot solve all the world’s problems. It’s better to view them as helpful speed bumps or emergency alerts for when things are going badly for your child. In the old days, we placed a lot of faith in filtering, and that still has a role along with other tools that help place some reasonable limits not only on content but also overall consumption. But the best types of parental empowerment are those that force conversations between parents and kids by allowing reasonable monitoring to happen that is scaled by age (as in more limits for younger kids until they are gradually relaxed over time). And other carrot-and-stick tools and approaches are incredibly useful in helping parents place smart limits on youth activity and overall consumption.
• Education of youth: Education is the strategy with the most lasting impact for online safety. Education and digital literacy provide skills and wisdom that can last a lifetime. Specifically, education can help teach both kids (and adults!) how to behave in — or respond to — a wide variety of situations. Building resiliency and encouraging healthy interactions is the goal.
• Enforcement of existing laws: There are many sensible and straightforward laws already in place that address more concrete types of harm and harassment. And we have lots of laws pertaining to fraud and unfair and deceptive practices. Sometimes these rules can be challenging (and time-consuming) to enforce, but they constitute an existing backstop that can handle most worst-case scenarios when other less-restrictive steps fall short. And we should certainly tap these existing remedies before advancing unworkable new regulatory regimes.

I noted in my AEI study that, between 2000 and 2010, six major online-safety task forces or blue-ribbon commissions were formed to study online-safety issues and consider what should be done to address them. Each of them recommended some variant of the “3-E” approach as they encouraged a variety of best practices, educational approaches, and technological-empowerment solutions to address various safety concerns. Self-regulatory codes, private content-rating systems, and a wide variety of different parental-control technologies all proliferated during this period. Many multi-stakeholder initiatives and other organizations were also formed to address governance issues collaboratively. There are countless groups doing important work on this front today, including my old friends at the Family Online Safety Institute (FOSI) among many others.

These organizations push for a layered approach to online safety and work closely with educators, child development experts, and other academics and activists to find workable solutions to new online safety challenges as they arise. Their work is never done, and at times it can feel overwhelming. But, again, it’s the nature of the task at hand. We all must work together to continuously devise new and better approaches to addressing these challenges, because they will be endless. But let’s please not expect that we can unload these responsibilities on government and expect regulators to somehow handle it for us.

Do the Ends Justify the Means When it Comes to Media & Content Control?

I could be wasting my breath here because I’ve been attempting to appeal to conservative principles that may be rapidly disappearing from the modern conservative movement. Donald Trump radically disrupted everything in American politics, but especially the Republican Party. Many so-called national conservatives now live by Trump’s central operating principle: The ends justify the means. The ends are “owning the libs” in any way possible. And “the libs” include not only anyone on the Left of the political spectrum, but even those individuals and institutions that Trumpian conservatives believe are “the enemy” and controlled by “liberal interests.” By their definition, this now includes virtually all large media and technology companies and platforms. Thus, when we turn to the means, it’s increasingly the case that just about anything goes — including many traditional conservative principles.

To see how far we’ve come, recall what President Ronald Reagan said 35 years ago when vetoing an effort to reinstate the Fairness Doctrine. “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and compe­tition that the First Amendment sought to guarantee,” he said. At the time, President Reagan was confronted with some of the same arguments we hear today about media being too biased or conservatives not getting a fair shake. But he called upon his fellow conservatives to reject the idea that Big Government was the solution to such problems.

Unfortunately, Mr. Trump and some of his most loyal followers and even some major conservative groups today have largely given up on this logic and instead embraced regulation. While Trumpian conservatives love to decry everyone they oppose as “communists,” ironically it is this same group that is embracing a sort of communications collectivism as it pertains to modern media control. In the Trumpian worldview, media and tech platforms are useful only to the extent they carry out the will of the party — or at least the man on top of it.

These national conservatives have made a horrible miscalculation. Feeling aggrieved by Big Tech “bias,” or just feeling overwhelmed by things they don’t like about online platforms, they’ve decided that two wrongs make a right. In reality, two political wrongs never make a right, but they almost always combine to make government a lot bigger and more powerful.

It’s an incredibly naïve gamble almost certainly destined to fail, but they should ask themselves what it means if it works. This endless ratcheting effect will result in comprehensive state control of most channels of communications and information dissemination. Is this a game that you really think you can play better than the Lefties?

I’ll close by returning to one of Reagan’s favorite jokes. He always used to say that, “The nine most terrifying words in the English language are: I’m from the government and I’m here to help.” I would suggest that an even scarier version of that line would be, “We’re from the government and we’re here to help you parent your kids.”

Don’t let it be you uttering that line.

______________

Additional Reading

· Adam Thierer, “Again, We Should Not Ban All Teens from Social Media”

· Adam Thierer, “Why Do We Always Sell the Next Generation Short?”

· Adam Thierer, “The Classical Liberal Approach to Digital Media Free Speech Issues”

· Adam Thierer, “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics”

· Adam Thierer, “Left and right take aim at Big Tech — and the First Amendment“

· Adam Thierer, “When It Comes to Fighting Social Media Bias, More Regulation Is Not the Answer“

· Adam Thierer, “Ongoing Series: Moral Panics / Techno-Panics”

· Adam Thierer, “No Goldilocks Formula for Content Moderation in Social Media or the Metaverse, But Algorithms Still Help”

· Adam Thierer, “FCC’s O’Rielly on First Amendment & Fairness Doctrine Dangers“

· Adam Thierer, “Conservatives & Common Carriage: Contradictions & Challenges“

· Adam Thierer, “The Great Deplatforming of 2021“

· Adam Thierer, “A Good Time to Re-Read Reagan’s Fairness Doctrine Veto“

· Adam Thierer, “Sen. Hawley’s Radical, Paternalistic Plan to Remake the Internet“

· Adam Thierer, “How Conservatives Came to Favor the Fairness Doctrine & Net Neutrality“

· Adam Thierer, “Sen. Hawley’s Moral Panic Over Social Media“

· Adam Thierer, “The White House Social Media Summit and the Return of ‘Regulation by Raised Eyebrow’“

· Adam Thierer, “The Surprising Ideological Origins of Trump’s Communications Collectivism“

· Adam Thierer, Parental Controls & Online Child Protection: A Survey of Tools and Methods (2009).

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.

[This essay originally appeared on the AIER blog on May 28, 2019. The USA TODAY also ran a shorter version of this essay as a letter to the editor on June 2, 2019.]

In a hotly-worded USA Today op-ed last week, Senator Josh Hawley (R-Missouri) railed against social media sites Facebook, Instagram, and Twitter. He argued that, “social media wastes our time and resources,” and is “a field of little productive value” that have only “given us an addiction economy.” Sen. Hawley refers to these sites as “parasites” and blames them for a litany of social problems (including an unproven link to increased suicide), leading him to declare that, “we’d be better off if Facebook disappeared.”

As far as moral panics go, Sen. Hawley’s will go down as one for the ages. Politicians have always castigated new technologies, media platforms, and content for supposedly corrupting the youth of their generation. But Sen. Hawley’s inflammatory rhetoric and proposals are something we haven’t seen in quite some time.

He sounds like those fire-breathing politicians and pundits of the past century who vociferously protested everything from comic books to cable television, the waltz to the Walkman, and rock-and-roll to rap music. In order to save the youth of America, many past critics said, we must destroy the media or media platforms they are supposedly addicted to. That is exactly what Sen. Hawley would have us do to today’s leading media platforms because, in his opinion, they “do our country more harm than good.”

We have to hope that Sen. Hawley is no more successful than past critics and politicians who wanted to take these choices away from the public. Paternalistic politicians should not be dictating content choices for the rest of us or destroying technologies and platforms that millions of people benefit from.

Addiction Panics: We’ve Been Here Before

Ironically, Sen. Hawley isn’t even right about what the youth of America are apparently obsessed with. Most kids view Facebook and Twitter as places where old people hang out. My teenage kids laugh when I ask them about those sites. Pew Research polling finds that many younger users are increasingly deleting Facebook (if they used it at all) or flocking to other platforms, such as Snapchat or YouTube.

But shouldn’t we be concerned with kids overusing social media more generally? Yes, of course we should—but that’s no reason to call for their outright elimination, as Sen. Hawley recommends. Such rhetoric is particularly concerning at a time when critics are proposing a “break up” of tech companies. Sen. Hawley sits on the U.S. Senate Judiciary Committee’s Subcommittee on Antitrust, Competition Policy and Consumer Rights. It is likely he and others will employ these arguments to fan the flames of regulatory intervention or antitrust action against at least Facebook.

Forcing social media sites to “disappear” or be broken up is one of the worst ways to deal with these concerns. It is always wise to mentor our youth and teach them how to achieve a balanced media diet. Many youths—and many adults—are probably overusing certain technologies (smartphones, in particular) and over-consuming some types of media. For those truly suffering from addiction, it is worth considering targeted strategies to address that problem. However, that is not what antitrust law is meant to address.

Moreover, concerns about addiction and distraction have popped up repeatedly during past moral panics and we should take such claims with a big grain of salt. Sociologist Frank Furedi has documented how, “inattention has served as a sublimated focus for apprehensions about moral authority” going back to at least the early 1700s. With each new form of media or means of communication, the older generation taps into the same “kids-these-days!” fears about how the younger generation has apparently lost the ability to concentrate or reason effectively.

For example, in the past century, critics said the same thing about radio and television broadcasting, comparing them to tobacco in terms of addiction and suggesting that media companies were “manipulating” us into listening or watching. Rock-and-roll and rap music got the same treatment, and similar panics about video games are still with us today.

Strangely, many elites, politicians, and parents forget that they, too, were once kids and that their generation was probably also considered hopelessly lost in the “vast wasteland” of whatever the popular technology or content of the day was. The Pessimists Archive podcast has documented dozens of examples of this reoccurring phenomenon. Each generation makes it through the panic du jour, only to turn around and start lambasting newer media or technologies that they worry might be rotting their kids to the core. While these panics come and go, the real danger is that they sometimes result in concrete policy actions that censor content or eliminate choices that the public enjoys. Such regulatory actions can also discourage the emergence of new choices.

Missed Opportunity, or Marvelous Achievement?

Sen. Hawley makes another audacious assertion in his essay when he suggests that social media has not provided any real benefit to American workers or consumers. He says the rise of the Digital Economy has “encouraged a generation of our brightest engineers to enter a field of little productive value,” which he regards as “an opportunity missed for the nation.”

This is an astonishing statement, made more troubling by Hawley’s claim that all these digital innovators could have done far more good by choosing other professions. “What marvels might these bright minds have produced,” Hawley asks, “had they been oriented toward the common good?”

Why is it that Sen. Hawley gets to decide which professions are in “the common good”? This logic is insulting to all those who make a living in these sectors, but there is a deeper hubris in Sen. Hawley’s argument that social media does not serve “the common good.” Had some benevolent philosopher kings in Washington stopped the digital economy from developing over the past quarter century, would all those tech workers really have chosen more noble-minded and worthwhile professions? Could he or others in Congress really have had the foresight to steer us in a better direction?

In reality, U.S. tech companies produce high-quality jobs and affordable, collaborative communications platforms that are popular across the globe. In response to Sen. Hawley’s screed, the Internet Association, which represents America’s leading digital technology companies, noted that, in Sen. Hawley’s home state of Missouri alone, the Internet supports 63,000 jobs at 3,400 companies and contributed $17 billion in GDP to the state’s economy. Presumably, Sen. Hawley would not want to see those benefits “disappear” along with the social media sites that helped give rise to them.

But the Internet and social media have an equally profound impact on the entire U.S. economy, adding over 9,000 jobs and nearly 570 businesses to each metropolitan statistical area. The Digital Economy is a great American success story that is the envy of the world, not something to be lamented and disparaged as Sen. Hawley has.

For someone who believes that Facebook is a “drug” and a “parasite,” it is curious how active Sen. Hawley is on Facebook, as well as on Twitter. If he really believes that “we’d be better off if Facebook disappeared,” then he should lead by example and get off the sites. But that is a decision he will have to make for himself. He should not, however, make it for the rest of us.

Last week, science writer Michael Shermer tweeted out this old xkcd comic strip that I had somehow missed before. Shermer noted that it represented, “another reply to pessimists bemoaning modern technologies as soul-crushing and isolating.” Similarly, there’s this meme that has been making the rounds on Twitter and which jokes about how newspapers made us as antisocial in the past much as newer technologies supposedly do today.

Isolation and inattention panics are some of the most common “fear cycles” that we have seen repeatedly play out through the ages. Indeed, sociologist Frank Furedi reminds us that panics over isolation, distraction, or inattention have been quite common. Consistent with that xkcd comic, Furedi has documented how “inattention has served as a sublimated focus for apprehensions about moral authority” going back to at least the early 1700s and continuing on through the next two centuries. During those years, he notes:

Inattention was increasingly perceived as an obstacle to the socialisation of young people. Countering the habit of inattention among children and young people became the central concern of pedagogy in the 18th century […]  During the 19th century, the state of inattention became thoroughly moralised. Inattentiveness was perceived as a threat to industrial progress, scientific advance and prosperity.

Today, however, the panic over inattention has ramped up, Furedi argues:

Unlike in the 18th century when it was perceived as abnormal, today inattention is often presented as the normal state. The current era is frequently characterised as the Age of Distraction, and inattention is no longer depicted as a condition that afflicts a few. Nowadays, the erosion of humanity’s capacity for attention is portrayed as an existential problem, linked with the allegedly corrosive effects of digitally driven streams of information relentlessly flowing our way.

While I generally agree these panics are overblown, one must also admit that there is some degree of truth to  all of them in the sense that each new technology presents us with some added level of potential distraction. And today we have more of those potential distractions than ever before. So, something’s gotta give, right?

“What information consumes is rather obvious,” Nobel Prize-winning economist and psychologist Herbert Simon remarked in 1971: “the attention of its recipients. Hence a wealth of information creates a poverty of attention, and a need to allocate that attention efficiently among the overabundance of information sources that might consume it.” Almost a half century later, we are confronted with a “wealth of information” that Simon could not have imagined, and that’s what has many critics worried about the potentially socially-destructive consequences of new technologies.

But social critics who write about this supposed “poverty of attention” problem have taken matters to the extreme and concocted some entertaining rhetorical ploys in an attempt to one-up each other on the panic meter. In a 2005 book, I discussed dozens of colorful book and article titles and terms like: “information overload;” “cognitive overload;” “information anxiety;” “information fatigue syndrome;” “information paralysis;” “techno-stress;” “information pollution;” “data smog;” and even “data asphyxiation.”

And that was all pre-Facebook and pre-Twitter! A dozen years later, this isolation-is-killing-us theme is becoming even more prevalent in books and articles. There are far to many books of this ilk to list here, but a quick sampling of the most popular ones would include: Nick Carr ( The Shallows), Franklin Foer (World Without Mind), Maggie Jackson (Distracted), Sherry Turkle (Alone Together), Eli Pariser (The Filter Bubble), John Freeman (The Tyranny of E-Mail), and Cass Sunstein (Republic.com), among many others. I have an entire bookshelf in my office filled with nothing but books of this variety, all penned over just the past 20 years.

Perhaps the sheer volume of panicky tracts suggests that there must be something to these fears. Let’s be clear: isolation, distraction, or inattention  are problems. But to some extent, these are problems that have always been with us and are not going away any time soon.

Social critics and cranky intellectuals love to complain about new technologies, and that’s never going to end. The best of that criticism will incorporate practical strategies for living a better life and suggest steps for how we all can find a better balance with the technologies that dominate our lives–today, tomorrow, and on into the future.

Sadly, most critics take a different approach which implicitly suggests we have somehow departed a golden age of living and that only a dystopian hellscape awaits us from here on out (if we’re not already living in it). It’s utter poppycock. As I’ve written before, pastoral myths and public square fantasies about some supposedly glorious but no-lost “good old days” are a lot of fun right up until you realize that the old days were, in fact, eras of abject misery. By almost every meaningful metric, we are better today than we were in the past, and that is probably just as true for things that we don’t have metrics for, including “attentiveness” or “distractability.”

We’d all like to think that people–especially kids–were somehow more attentive, more social, and more civil in the past than they are in today’s seemingly more cluttered, cacophonous, hurly-burly modern era. But there is absolutely no concrete evidence suggesting that is true and, as Furedi shows, there exists plenty of anecdotal evidence that when it comes to inattention, things really haven’t changed that much at all. We can and should strive to do better and find constructive solutions to problems such as these, but we should not go overboard with rhetorical threat inflation about the nature or severity of this problem. Nor should we pursue impractical or highly destructive solutions that would undermine the many other benefits associated with our new technological capabilities.

Ironically, at their very worst, isolation or inattention panics accomplish the exact opposite of what some social critics suggest that they desire. The critics often claim that they are just looking out for the next generation and trying to chart a better path for them. In reality, however, those critics are often just engaging in the same sort of fear-mongering and youth-shaming that countless other generations have before with their “KIDS THESE DAYS!” complaints. It’s always easy for intellectuals to tap into the worst fears of parents and policymakers by suggesting that the younger generation has lost the ability to reason or communicate effectively. And yet, each generation somehow figures out how to muddle through. We are an imperfect species, but we are also a highly resilient one.

Of course, that won’t stop an entirely new generation of critics from panicking about whatever future technology is apparently distracting the next generation to death. Fear sells and panics get attention. The calmer truths that history teaches us take longer to appreciate.

Additional Reading:

• Is It “Techno-Chauvinist” & “Anti-Humanist” to Believe in the Transformative Potential of Technology? (9/18/18)
• How to Sell a Book about Tech Policy: Turn the Technopanic Dial Up to 11 (1/2/18)
• What a 1911 Silent Movie Tells Us about the Technopanic Mentality (6/21/17)
• Regarding the Use of Apocalyptic Rhetoric in Policy Debates (10/29/14)
• Muddling Through: How We Learn to Cope with Technological Change (6/14/14)
• The Problem with “Pessimism Porn” (5/23/14)
• BOOK: “Permissionless Innovation: The Continuing Case for Comprehensive Technological Freedom”
• What Does It Mean to “Have a Conversation” about a New Technology? (5/23/13)
• paper: Technopanics, Threat Inflation & an Info-Tech Precautionary Principle (2/28/12)
• Why Do We Always Sell the Next Generation Short? (Forbes, 1/8/12)
• On Nostalgia (12/28/11)

Yesterday was National Lemonade Day. Over at the Mercatus Bridge blog, Jennifer Skees and I used the opportunity to highlight the increasing regulatory crackdown on kids operating ventures without first seeking the proper permits from local authorities. We ask, “wouldn’t it be better to teach them the value of hard work and entrepreneurial effort instead of threatening them with penalties for not getting costly permits to do basic jobs?” Here’s our answer:

Today is National Lemonade Day. For many Americans a lemonade stand was their first experience in entrepreneurship. But unfortunately, this time honored tradition that teaches the value of hard work, entrepreneurship, and innovation may be under threat from overzealous grown-ups.

Should we really force kids to get licenses to start lemonade stands, sell bottles of water outside a ballpark, or mow lawns for a little extra money? And wouldn’t it be better to teach them the value of hard work and entrepreneurial effort instead of threatening them with penalties for not getting costly permits to do basic jobs?

Recent news stories have highlighted examples of kids being confronted with local regulations that essential tell them not to be entrepreneurial until they’ve gotten someone’s blessing–or else face fines or other penalties for those efforts.

Out in San Francisco, for example, a neighbor threatened to call the police on an eight-year-old girl selling water to raise money for a trip to Disneyland after her mother had lost her job. The neighbor berated the little girl for “illegally selling water without a permit.” Luckily, national outrage seems to have fallen in favor of this rogue entrepreneur instead of “Permit Patty.” But this is far from an isolated case.

Another story went viral earlier this year involving kids and lemonade stands. Country Time lemonade pledged to pay the fines received or the permit cost for children’s lemonade stands. Who thought we’d reach the day when we need a Lemonade Legal Defense Fund? But just prior to the launch, Stapleton, Colorado police were called to shut down the lemonade stand of  four and six year-old brothersfor failing to have a business license. Kids who probably can’t read or fill out the necessary forms are expected to obtain a formal license for a tradition that dates back about 120 years.

Kids are confronted with other meddlesome local permitting rules even when they aren’t selling food or beverages. The town of Gardendale, Alabama made news last year after attempting to charge a teenager $110 for a business license for mowing neighbors’ lawns during the summer to earn money for a mission trip. A local professional lawn service had apparently pressured local parents about the need for kids to have licenses to mow. The city later clarified teenagers would be allowed to mow lawns for a little extra money without needing a license to do so as long as the work was part-time and they were students.

Should we have expected kids to seek permits in these cases? Some sticklers might say yes, we should. After all, it’s the law!

But complying with the law is costly in two important ways. First, the actual fees can be exorbitant. In San Francisco, for example, the filing fee for a “peddler’s permit” costs $330-$525 depending on whether you are selling non-food or food items. Then, if you get the city’s blessing, you have to pay an additional $166-$624 annually for a license to serve the community. It’s safe to say that most kids and their parents probably could not afford that expense.

But the more important cost might be the mental transaction costs or general hassles associated with navigating the labyrinth of red tape that entrepreneurs must confront to get new ventures started. The very act of going through a laborious, confusing, and time-consuming permitting process will be too much for many to bear, especially kids. When a mother tried to get a license for a lemonade stand in Texas, she was told that an inspection by the health department would also be necessary because of the “bacteria that can grow in lemonade.” As a result some children and parents have gotten creative by not “selling” these dangerous products but instead offering it “free” but accepting donations.

The costs of permitting have important real-world implications. They are sending a clear message to kids and their parents: Don’t even bother trying to be entrepreneurial unless you are willing to deal with a world of regulatory pain. Worse yet, to the extent they learn anything by attempting to comply with such silly rules, it’s probably only a lesson in how to manipulate a political process for your own gain. All too often, many incumbent businesses who already worked their way through the system figured out how to exploit it for their own gain to keep competitors out. They then become the guardians of the licensing systems

This is what Philip K. Howard, chair of Common Good, calls this  The Death of Common Sense, in a book of the same name. “Like sediment in a harbor,” he argues, rules and regulations in the US have accumulated, “until most productive activity requires slogging through a legal swamp. “It’s degenerative,” he says. Indeed, laws and regulations like these sap the entrepreneurial spirit of young Americans and discourage them from taking the initiative and learning important skills they will use throughout their lives.

A common refrain of just about every generation of adults is that the younger generation doesn’t work as hard as their generation did. Such “kids-these-days!” complaints are almost always off-base. But they are particularly outlandish when it’s the adults who are acting juvenile by refusing to reform illogical and costly rules that do nothing to protect the public but make it harder for young people to pursue their dreams and engage in entrepreneurial activities.

We shouldn’t actively encourage kids to break the law, of course. But what happens when rules and regulations utterly defy common sense, as these and countless others do today? Perhaps a little “evasive” entrepreneurialism and civil disobedience is the answer. Luckily, public interest law firms like the Institute for Justice, the Goldwater Institute, and the Pacific Legal Foundation already exist to defend our general right to earn a living. Sometimes it will be necessary to push our luck against what Goldwater’s Timothy Sandefur calls “the Permission Society” if we hope to get policymakers to wake up to the illogical and unfair nature of archaic old licensing regimes.

Luckily some states have started to realize that these burdensome licensing and permitting requirements may have gone too far and at least in some cases are not serving their original purposes. For example, Utah recently passed a law that exempts lemonade stands and other similar child-run businesses from permitting requirements. And recently health inspectors helped a Minneapolis 13-year-old get the necessary permits and paid the costs of the licenses to keep his hotdog stand open. But on a broader front, the right to earn a living is tied both to the value of entrepreneurship and the right to innovate. It is far too easy for incumbents to use licensing schemes to keep out new innovations like ride-sharing and home-sharing. Instead of focusing on raising requirements to prevent new innovations and protect existing industries, we should look to the right to earn a living as a way to even the playing field by reducing the burdens for everyone.

Kids are used to asking permission from their parents, but what are we teaching them when every attempt to do a job or earn a little money also requires endless permission slips from the government? Studies have shown that helicopter parenting makes children struggle emotionally and behaviorally later in life. Imagine how much worse that problem is when the government serves as the ultimate helicopter parent, demanding constant permission to engage in any kind entrepreneurial acts? It seems if we want to stay a nation of innovators and entrepreneurs, the least we can do is tell the kids to stick to asking “Mother may I?” of just their mothers.

Additional Reading:

• Jennifer Skees, “Do You Need a License to Innovate?”, The Bridge , June 29, 2018.
• Adam Thierer, “Making the World Safe for More Moonshots,” The Bridge , February 5, 2018.
• Jennifer Skees & Trace Mitchell, “Will The Electric Scooter Movement Lose Its Charge?” The Bridge , July 18, 2018.
• Jennifer Skees, “Should You Be Able to Fix Your Own iPhone,” Plain Text , June 18, 2018.
• Andrea O’Sullivan & Adam Thierer, “3D Printers, Evasive Entrepreneurs and the Future of Tech Regulation,” The Bridge, August 1, 2018,
• Adam Thierer, “The Pacing Problem and the Future of Technology Regulation,” The Bridge , August 8, 2018. 
• Adam Thierer, “Evasive Entrepreneurialism and Technological Civil Disobedience: Basic Definitions,” The Bridge , July 20, 2018.

This afternoon, Berin Szoka asked me to participate in a TechFreedom conference on “COPPA: Past, Present & Future of Children’s Privacy & Media.” [CSPAN video is here.] It was a in-depth, 3-hour, 2-panel discussion of the Federal Trade Commission’s recent revisions to the rules issued under the 1998 Children’s Online Privacy Protection Act (COPPA).

While most of the other panelists were focused on the devilish details about how COPPA works in practice (or at least should work in practice), I decided to ask a more provocative question to really shake up the discussion: What are we going to do when COPPA fails?

My notes for the event follow down below. I didn’t have time to put them into a smooth narrative, so please pardon the bullet points.

COPPA will fail in the long-run for two reasons:

(1)    With COPPA, the FTC is engaged in a technological arms race that it cannot win.

• COPPA was formulated for a Web 1.0 world of static websites with limited interactivity. In that environment is worked reasonably well, although it certainly imposed costs on site developers and affected market structure.
• As we moved into a Web 2.0 world of interactive social media in the mid to late-2000s, however, the rule has been strained by marketplace new realities. COPPA’s drafters never really envisioned sites like Facebook, Twitter, etc.
• In our current environment—let’s call it the Web 2.5 world—we have added mobile geolocation and social discovery to the mix and that is straining COPPA to the breaking point.
• But we are about to enter the Web 3.0 world of the “Internet of Things;” a sensor-based world in which the communication technology will literally be woven into the clothes we wear and all the devices we use.
  • Cisco has estimated that by 2020, 37 billion devices will be linked together and communicating.
  • It will be almost impossible for COPPA to keep up with the explosion of these technologies because everything in our lives and our children’s lives will be interconnected, communicating, and collecting data.
  • Information will be ubiquitously collected simply by nature of the technology itself.
  • The entire Web 3.0 world will be one of comprehensive passive information collection.
  • So, notions like “collection”, “directed at children” and “personal information” will be become impossible to enforce absence a flat-out ban on the technologies themselves

(2)    COPPA will also fail because of the simple reality that the more complicated and costly this regulatory regime becomes, the more likely it is that that both kids and parents will ignore it or seek to actively evade it.

• The actual monetary cost of any online service may obviously be one thing parents and kids seek to avoid.
• But the bigger cost is the mental hassle associated with delayed gratification.
  • When people demand certain services, they want them now. And they will get them even when law gets in the way. And sometimes they value the utility / functionality that those services provide more than they value privacy.
  • A 2011 Harvard-Berkeley study pointed out the evasion is already rampant and that many parents are facilitating that result by encouraging their kids to lie about their ages online.
    • This problem will only increase in the Internet of Things era as kids and parents come to expect all their devices to be communicating at all times and retaining data for them.

So, what are we going to do about? How do we prepare for the post-COPPA world that’s coming?

• We shouldn’t just throw up our hands in defeat.
• But we must accept the technological and practical challenges associated with regulation and seek out alternative approaches.
• Best solution, therefore, is: Education, media literacy, and digital citizenship
  • We need to do a much better job educating both kids and adults about sensible online interactions.
  • We need to talk to our kids and each other about being more savvy, sensible, respectful, and resilient media consumers and digital citizens.
  • In encouraging our kids and fellow Netizens to be good “digital citizens,” we must stress smarter online hygiene (sensible personal data use) and better “Netiquette” (proper behavior toward others), which can further both online safety and digital privacy goals.
  • More generally, as part of these digital literacy and citizenship efforts, we must do more  to explain the potential perils of over-sharing information about ourselves and others while simultaneously encouraging consumers to delete unnecessary online information occasionally and cover their digital footprints in other ways.
  • These education and literacy efforts are also important because they help us adapt to new technological changes by employing a variety of coping mechanisms or new social norms. These efforts and lessons should start at a young age and continue on well into adulthood through other means, such as awareness campaigns and public service announcements.

Additional Reading:

• The Unintended Consequences of Well-Intentioned Privacy Regulation
• Thoughts on Latest FTC COPPA Rule Revisions & Online Child Safety / Privacy
• Joint CDT-PFF-EFF Comments on FTC’s COPPA Review & the Dangers of COPPA Expansion
• What We Didn’t Hear at Yesterday’s FTC COPPA Workshop
• COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech, by Berin Szoka & Adam Thierer

On Wednesday afternoon, it was my great pleasure to make some introductory remarks at a Family Online Safety Institute (FOSI) event that was held at the Yahoo! campus in Sunnyvale, CA. FOSI CEO Stephen Balkam asked me to offer some thoughts on a topic I’ve spent a great deal of time thinking about in recent years: Who needs parental controls? More specifically, what role do parental control tools and methods play in the upbringing of our children? How should we define or classify parental control tools and methods? Which are most important / effective? Finally, what should the role of public policy be toward parental control technologies on both the online safety and privacy fronts?

In past years, I spent much time writing and updating a booklet on these issues called Parental Controls & Online Child Protection: A Survey of Tools & Methods. It was an enormous undertaking, however, and I have abandoned updating it after I hit version 4.0. But that doesn’t mean I’m not still putting a lot of thought into these issues. My focus has shifted over the past year more toward the privacy-related concerns and away from the online safety issues. Of course, all these issues intersect and many people now (rightly) considered them to largely be the same debate.

Anyway, to kick off the FOSI event, I offered three provocations about parental control technologies and the state of the current debate over them. I buttressed some of my assertions with findings from a recent FOSI survey of parental attitudes about parental controls and online safety.

Provocation #1: While parental controls will continue to play an important role, it may be the case that many parents will not need parental controls technologies quite to the extent we once thought they did.

In one sense, usage of parental control tools is actually surprisingly high. The FOSI survey reported that 53% of parents say they have used parental control tools to assist them in monitoring their child’s Internet usage. That’s much higher than I would have expected.

Of course, that means that the other half of parents aren’t using parental controls. Why aren’t they? It can’t be because parents aren’t aware of the tools. Awareness of parental control tools is growing. According to the FOSI survey, 87% of parents report knowledge of at least one parental control technology.

Some critics claim it’s because the tools are too complicated, but that’s also hard to believe. The tools keep getting easier to use and cheaper—often being completely free of charge.

The better explanation lies in the fact that, first, talking to our kids continues to be the most important approach to mentoring youth and protecting them, just as it was for previous generations of parents. Almost all of the parents surveyed by FOSI (96%) said they have had a conversation with their child about what to do and not to do online.

Second, “household media rules” are the other unforgotten element here. These rules can be quite formal in the sense that parents make clear rules and enforce them routinely in the home over an extended period of time. Other media consumption rules can be fairly informal, however, and are enforced on a more selective basis. In my book on parental controls, I devised a taxonomy of household media rules and outlined four general categories: (1) “where” rules; (2) “when and how much” rules; (3) “under what conditions” rules; and, (4) “what” rules.

The FOSI survey reveals that such household media rules are widely utilized. Nearly all parents (93%) said they have set rules or limits to monitor their children’s online usage. In particular:

• 79% of parents surveyed require their children to only use the computer in a certain area of the house. (This is an example of a “where” rule.)
• 75% of parents limit the amount of time a child can spend online. (This is a “how much” rule.)
• 74% set rules for the times of day a child can be online. (This is a “when” rule.)
• 59% established time limits for use of a child’s cell phone. (This is another “how much” rule.)

Again, many pundits and policymakers routinely ignore the importance of such household media rules when talking about online child safety. They incorrectly assume that lower than expected usage of various parental control technologies means that those tools have failed or that kids are in great danger online. The reality is that most parents usually think of parental control technologies as a backup plan or complement to traditional parental mentoring and rule-setting responsibilities.

In fact, the FOSI survey revealed that, of those parents who have not used parental controls, 60% of them said it was because they already have rules and limits in place. Of course, none of this should be surprising. Most of us over 40 grew up without any parental control tools in our homes. Just like our parents before us, we devise strategies to mentor our youth and guide their development. Simple lessons and smart rules will, therefore, always be the first order of business. Technological controls will often only be used to supplement and better enforce those lessons and rules, if they are used at all.

In sum: parents are parenting!

Provocation #2: Kids are more resilient than we think.

Despite the panic we sometimes hear surrounding online safety and privacy, kids seem to be adapting to online environments and challenges quicker than parents (and policymakers) give them credit for. Without minimizing the seriousness of any particular concern, I think we need to step back and appreciate just how good of a job most kids have done adjusting to the modern Information Revolution.

There’s a great deal of literature in the field of psychology and sociology dealing with resiliency theory. When we think about risk in this world, there exists a range of responses. Prohibition and anticipatory regulation are on one end of the spectrum. Resiliency and adaptation are on the other.

When highly disruptive information technologies come on the scene, the first reaction is often prohibition or anticipatory regulation. That’s driven by fear of the new and unknown. Oftentimes, however, patience is the better disposition. Building resiliency and crafting adaptation strategies often makes more sense. Instilling principles and lessons to last a lifetime will ultimately do more to make our kids smart, savvy cyber-citizens and prepare them for the worst of what the world might throw their way.  It’s like the old “teach a man to fish” approach, except in this case it’s “teach a child to think.”

In many ways, this is precisely what has been happening for the past decade. Both parents and kids have been “learning on the job” so to speak. They’ve been adapting to new online worlds and gradually assimilating them into their lives. In the process, they have learned important lessons and become more resilient.

Of course, some risks are serious enough that they demand a more anticipatory solution, perhaps even prohibition. Child porn and online child abuse of any sort are the primary examples. But for most other things, social adaptation and resiliency responses generally trump prohibition or anticipatory regulation as the smart solution.

Provocation #3: The most interesting and important public policy debate going forward—both for child safety and kids’ privacy concerns—continues to be the vexing question of where to set to defaults and who sets them.

This isn’t the provocative part of this particular provocation. After all, we’ve always know that defaults matter . Psychologists speak of “status quo bias,” or the general inclination for humans to often stick with the choice they’ve initially been offered. Thus, default parental control and privacy-related settings are often quite “sticky.” Where safety and privacy defaults are set out of the gates is usually where they stay for many people.

A lot of people would like to find a way to change that—potentially through regulation—because they do not approve of the initial defaults offered by various online sites, service, or devices.

Generally speaking, there are two sets of hard questions here. First should we default to the most restrictive setting, the least restrictive, or should we force the consumer to make the choice before using the site, service, or device? Second, who makes that call? Private or public actors?

So, here’s my real provocation: We are better served as a society when these defaults evolve organically and are not imposed from above. Trial and error experimentation with varying defaults help us better understand the relative value of online safety and privacy to various users. That experimentation also sends important signals to other players in the marketplace and encourages them to offer innovative alternative or approaches to these issues. [Here’s a longer paper I penned on this issue explain why mandatory and highly restrictive defaults usually aren’t a good idea.]

The obvious objection to my position is that, if companies are the ones setting the defaults, then only their values get heard and their preferred defaults will always prevail. In reality, however, defaults often do evolve from where they are initially set. (Think of how browsers and social networking sites have added and changed privacy and security controls over just the past few years.) Press exposure and social pressure—especially from average parents and advocacy groups—typically help make sure service providers are responsive to needs of their communities.

Importantly, just because some the preferred defaults of some child safety or privacy advocates do not prevail, that doesn’t constitute “market failure.” There are many competing values at work here. First off, we must never forget that only 32% of all U.S. households have children present in them at any given time. And of that 32%, a small subset might need parental controls or enhanced privacy settings. Many others won’t need any. We live in a diverse nation with a wide spectrum of values and approaches when it comes to rearing our children and protection their safety and privacy. Some parents will never use any parental control or privacy tools. Others will layer them on. Others will use a mix of tools and strategies as outlined above.

In the end, we should expect that experimentation with varying defaults will continue and that there will always be some who are cranky about their preferred defaults not prevailing. But I think we are better off if we allow experiments to continue.

After I offered these initial provocations at the FOSI event, we had a terrific conversation among a diverse group of attendees. I took notes and tried to distill the key takeaways from the conversation, which was off the record. Here are 5 themes that I kept hearing coming up again and again from participants:

1. There is no single tool or silver-bullet solution that can solve all these problems; many tools and solutions are needed for the various concerns that are out there today
2. The term “parental controls” is too narrow since it just implies tools. We need a broader term or paradigm that incorporates education, awareness, empowerment, household media rules, etc.
3. Whether we are talking about tools or awareness efforts, there is remains a trade-off between sophistication and usability.  Many people and policymakers say they want more sophisticated tools but then turn around and complain about complexity of those solutions later. Stated differently, there will never be a “Goldilocks formula” that gets it just right precisely because needs and values evolve.
4. There are shifting concerns among parents from old days. In the early days of the Net, the concern tended to be focused more on content consumption (mostly adult material). Today, the concern seems to have shifted strongly toward content creation (ex: user-generated content on social networking sites, Twitter, SMS, etc.)
5. Kids are getting online at a younger age despite regulatory prohibitions such as COPPA and we’re going to have to grapple with that reality and whether we’ll allow it.

Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors. The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.

There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.

But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment. The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.

And in the famous Pacifica case, the Court upheld fines levied against a radio station for airing the famous George Carlin monologue that, not-so-ironically, satirizes the FCC for banning seven particular words from being uttered over the public airwaves.

The basis for that decision was that children could be negatively influenced from hearing such language. And children have easy access to radio and TV, while parents had no effective way to keep particular broadcasts out of the house.

In today’s argument, California’s legal arguments center largely on another case, the Supreme Court’s 1968 decision in Ginsberg. There, the Court upheld state restrictions on the sale of pornography to minors, even though the material was protected speech for adult purchasers.

In Schwarzenegger v EMA, California is urging the Court to extend Ginsberg’s reasoning to include content that meets it definition for violent video games. The statute defines “violent video games” as those “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

Ginsberg, the state argues in its brief, upheld a ban the sale of sexual content to minors because such content is dangerous to their development. So too, they argue here, with violent video games. (Parents and other adults, of course, could still buy the games for minors if the statute were to go into effect.)

Indeed, the state argues that such material has as much if not more of a negative impact on the development of children than does sexual material.

That, of course, is a question open to considerable debate. After the fact, the state cites a number of academic studies that find a correlation between violent video game exposure (including games, such as Super Mario Brothers, well outside the the California definition) and anti-social behavior. But, as excellent reply briefs from the Entertainment Merchants Association and a joint brief from the Progress and Freedom Foundation and the Electronic Frontier Foundation point out, the methodology in these studies has been roundly criticized.

Moreover, California doesn’t seem to understand that the statistical significance of a correlation does not necessarily translate to real-world behavior—correlation is not the same as causation, no matter how strong the statistics. And even the authors of the studies most relied on by the state recognize that it isn’t clear in which direction the correlation moves—are children who play violent video games more likely to have violent thoughts because they played the game, or are pre-existing violent thoughts what attracts them to the games?

Why Video Games? Why Now?

The Court may focus on those studies in its decision, but I have a different question. Why are California and other states picking on video games, and why now? That, to me, is the more interesting problem, one that gets little attention in the briefs and, I would guess, in the Court’s eventual decision.

Perhaps the why is obvious: as EMA’s brief points out, similar attacks have accompanied the rise in popularity of every new form of media to emerge throughout U.S. history.

The California statute … is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different.

The PFF/EFF brief goes farther, accusing California legislators of succumbing to “moral panic, as lawmakers have so often done when confronted with the media of a new generation.”

Examples as varied as Greek classics, the Bible, the Brothers Grimm and Star Wars all suggest, EMA points out, that extreme–even gruesome–violence has always been a favorite subject of literature, often aimed specifically at children. As federal appellate judge Richard A. Posner wrote in rejecting a similar Indiana law, “Self defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young.”

But why now? The answer is, not surprisingly, Moore’s Law. Laws regulating the content or distribution of video games are a classic example of the conflict I described in The Laws of Disruption.

As technology has made video game graphics more realistic and lifelike, they have captured the attention—and here the nightmares—of regulators in the real world who equate what they see on the screen with behaviors that would clearly violate laws and norms of the real world. They don’t like what they see in games including Grand Theft Auto and Resident Evil, and their impulse is to find a way, somehow, to stop it, even if it’s only a simulation.

It was not that long ago—in my life time, in any case—that video games were still in their Neolithic Era. Consider Pong, the first home video game from Atari in 1975. It would take an imagination greater than mine to think of the batting of a block of monochrome pixels by a bar of pixels to be violent enough to corrupt youth; likewise the breaking of a wall of pixels one at a time in the follow-on game Breakout.

But a few years later, consider the commercial (courtesy of YouTube) for Activision’s ice hockey game.

The game promises to be one of the “roughest” video games ever, “battling for the puck” with “fierce body checking” and “ruthless tripping.” Just watching the players fight it out drives a meek-looking Phil Hartman into a frenzy; within a few seconds he seems ready to attack the clerk who teases him that he’s not yet ready for it.

But despite an ad that explicitly suggests a connection between playing (or even watching the game) and becoming violent, the actual graphical quality of the violence is so disconnected from visual reality that it never occurred to any state legislature to ban or otherwise restrict it.

Now fast-forward just a few short decades later to the imminent release of Xbox 360’s Kinetics and one of the games that takes advantage of it called Kinectimals.

Using Microsoft’s new sensor technology, realistically-rendered animals can be controlled simply by issuing voice commands or by mimicking the desired movements by standing in front of the images. It hardly seems possible that the same beings who invented Pong could have advanced to Kinectimals within the span of one human lifetime. But we did.

Coupled with new 3D technology and increasingly large, high-fidelity displays, video games have in the course of only a few decades and a few cycles of Moore’s Law, advanced to the point of challenging the cinematic qualities of movies. Indeed, games and films are converging, and now use much of the same technology to produce and to display. A new sub-genre of user-produced content involves taking the cinematic interludes within the games and using them to produce original films. After all, video game users today not only control game play but also lighting, camera angles, and point of view.

Why not? As Nicholas Negroponte would say, bits are bits.

So now that video games offer fidelity in imagery and movement that is comparable to film, the law has awakened to both their positive and negative impacts on those who interact with them. Since the First Amendment clearly doesn’t allow interference with the sale of violent content to adults, California focused on children. But it’s clear from the tone of the state’s brief that they just plain don’t like certain video games, just as they didn’t like certain movies and certain books in an early age of mass-market technologies. As before, they would like, if they could, to turn the clock back.

Of course that is always the response of the law to new technologies that challenge our conceptions of reality. The only difference between the comic book burnings of the 1950’s and the emotional responses of legislators today is the speed with which those new technologies are arriving. The killer apps come faster all the time. And with them, the counter-revolutionaries.

Frozen in Time, Lost in Relevance

Which is why the California statute suffers from another common and fatal flaw of laws attempting to hold back new technologies: early obsolescence. Even if the Supreme Court upholds the law, its effect will be minimal at best.

Why? Lost in the legal arguments (and reduced to a mere footnote in the EMA brief) is the impending anachronism of the California statute. It assumes a world, disappearing almost as quickly as it arrived, in which video games are imported into California as physical media in packages, and sold in retail stores.

Consider, for example, Section 1746.2:

Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18” outlined in black. The “18” shall have dimensions of no less than 2 inches by 2 inches. The “18” shall be displayed on the front face of the video game package.

But sales of video games in media form are rapidly declining as broadband connections make it possible for game developers and platform manufacturers to transport the software over the Internet. So even if the law is ruled constitutional, it will apply to an ever-shrinking portion of the video game market. There will soon be no “retail sale” and no “front face” of a “package” onto which to put a label in the first place.

These industry changes, of course, aren’t being made to evade laws like California’s. Digital distribution reduces costs and eliminates middlemen who add little or no value (the retailers, the packagers, the truckers). More to the point, they allow the companies to establish on-going relationships with their customers, which can be leveraged to selling add-on chapters and levels, on-line play, and the sale of related product and content, including films and movies.

The industry, in other words, is not only evolving in terms of sophistication and realism of the product. The same technologies are also scrambling its supply chain. And what is emerging as the new model for “games” is something in which California and other states have almost no regulatory interest.

So it seems an odd time to target legislation at a particular and disappearing version of the industry’s content and retail channels. Even if the Court upholds the California law, it will likely have little impact on the material at which it is aimed.

But that’s often the case with laws trying to manage the unpleasant social side effects of new technologies just as they become visible to the outside world. The pace of legal change can’t hope to keep up with the pace of technological change, making this law, like many others, out-of-date even before the ink is dry.

Which is not to say that the Supreme Court’s decision in this case won’t matter. Another feature of statutes like this, unfortunately, is a high likelihood of unintended consequences. The potential for the Court’s decision—pro or con–to do mischief in the future, however, to unrelated industries and dissimilar content, is legion.

For example? As the PFF/EFF brief points out, California and other states may try to extend the ban on sales to minors to online channels. But it isn’t so easy to determine the age of an online buyer as someone in your brick-and-mortar store. “Applying the law online would likely require mandatory age verification of all online gamers because the law prohibits any sale or rental to a minor,” PFF/EFF argues, “even if the vendor had no evidence that the buyer was a minor.” That feature of an earlier federal effort to control pornography online was the undoing of the statute.

But in the Supreme Court, and the lower courts who interpret its decisions, anything can happen, and usually does.

One of the old saws we hear from those who wish to impose more stringent regulations on advertising or product placement is that “it’s for the children.”  That is, critics such at the Campaign for a Commercial-Free Childhood and other organzations fear that, because children’s brains are less developed or they have not yet learned to differentiate commercial appeals from other types of information flows, kids may be more susceptible to persuasive commercial messaging. I think there’s some truth to that, but I also believe that (a) kids aren’t quite the sheep we make them out to be, (b) the potential “harm” here is not as great as the critics make it out to be and (c) parental supervision should be the primary the solution to the problem.

But let’s ask a different question entirely: Are we willing to forgo additional, and potentially more diverse, forms of children’s programming simply because we want to keep commercial messaging or product placement away from kids?   Consider the case study of The Hub, recently featured in The New York Times:

With imports of European cartoons, a smattering of Hasbro ads and a rerun of the movie “Garfield,” Hasbro and Discovery Communications unveiled a new television brand for children on Sunday, called The Hub. Over time, the two companies hope to prove that there is room for a fourth player alongside Nickelodeon, the Disney Channel and the Cartoon Network, the three heavyweights of children’s TV, said David M. Zaslav, the chief executive of Discovery Communications.  […]

The Hub is a significant retooling of Discovery Kids, a channel available in about 60 million homes that had withered within the portfolio of Discovery Communications… . Discovery Kids came onto television after Nickelodeon and the Disney Channel, and it never found a competitive footing. It earned less than 10 cents per subscriber from cable and satellite companies, and most of its ads were of the low-rent direct-response variety. “We were really lying in wait,” said Mr. Zaslav, who determined that he needed a business partner in the children’s market, and last year found an eager one in Hasbro, which paid $300 million for a 50 percent stake in the channel.

As with most media programming decisions, a trade-off is at work here: To ensure diverse new shows or channels can be sustained, programmers must find revenue streams to sustain them.  When direct subscription fees or other advertising methods prove unsustainable, the only remaining option is product sponsorship or some form of underwriting (unless we assume government funding for all children’s programming is an option, which is neither likely nor desirable).

Thus, the cost-benefit calculus comes down to the choice between a new kids’ channel that  includes product promotion, or no programming at all. For some of us, this is an easy call: Diversity and choice should trump concerns about the supposed evils of “commercialism.”  Restricting advertising in the name of “protecting children,” while well-intentioned, would limit cultural diversity and viewer choice and should, therefore, be rejected.

Of course, I feel passionately about that because I do not find the counter-argument convincing. Namely, I don’t think the critics make a good case that a serious “harm” exists from exposure to commercial messages or product placement.  Hell, I can’t even count how many G.I. Joe-related product placement things I grew up consuming; I was obsessed with the stuff.  But so what?  Was I somehow irreparably harmed by it?  And how about those endless Star Wars-related product placements? How were kids harmed by that?  Because they begged Mom and Dad to buy more Star Wars toys?  I could go on with countless examples, but you get the point.

Regardless, the point I am making above is a very different one:  As a parent, would you rather have an additional option like The Hub, even if it includes some product placement / promotion, or would you rather not have an additional choice at all?  Seems like a simple choice to me.  And we should all be free to make it for ourselves and our families.

The Entertainment Software Association, which represents the video game industry, has just released its latest “Essential Facts about the Computer and Video Game Industry” publication.  It’s a handy annual resource that I always look forward to reading. There are many interesting facts and figures found in the report, but here a few worth calling out from the data they have aggregated:

• 93% of the time parents are present at the time games are purchased or rented
• 64% of parents believe games are a positive part of their children’s lives
• 86% of the time children receive their parents’ permission before purchasing or renting a game
• 48% of parents play computer and video games with their children at least weekly
• 97% of parents report always or sometimes monitoring the games their children play
• 76% of parents believe that the parental controls available in all new video game consoles are useful

The survey also bolsters the findings of many other polls and reports which have found that parents employ a variety of what I have labeled “household media rules” to monitor or control their children’s media consumption:

• 83% of parents place time limits on video game playing
• 78% of parents place time limits on television viewing
• 75% of parents place time limits on Internet usage
• 66% of parents place time limits on movie viewing

Once again, these findings illustrate that parents are parenting!  Parents are playing an active role in the lives of their children, monitoring their media use, and mentoring them with the assistance of the ratings and parental control technologies / methods at their disposal.

I sure hope the Supreme Court is listening as they prepare to take up the constitutionality of laws regulating video game sales.

Note to Washington regulators and would-be censors… Don’t look now but parenting is happening!  Yes, it really is true: Parents are parenting. That’s the result of this new survey by Yahoo & Ipsos OTX.  Please pardon my snarky-ness, but I’ve been going at it for years with mobs of people here in DC who think that all parents are asleep at the wheel and kids are heading straight for the moral abyss. It’s a bunch of bunk, as I’ve pointed out here before. This new Yahoo!/Ipsos survey illustrates that, once again, parents are monitoring what their kids are up to online and taking an active role in mentoring them about web use:

• 78% of parents are concerned about their children’s online safety.
• 70% of parents talk to their children about online safety at least 2-3 times a year; 45% talk to their children at least once a month.
• 74% of parents are connected to their children’s profiles on social networking sites.
• 71% of parents have taken at least one action to manage their children’s use of the Internet or cell phones such as: Check to see where children are searching online; Set time limits for children’s use of computers or cell phones; Set parental controls on video sites; Use filters to limit where children go on the Web.

These results are consistent with what I have found and described in my ongoing PFF special report, Parental Controls & Online Child Protection: A Survey of Tools and Methods.  Obviously, many parents utilize the growing diversity of parental control technologies that are at their disposal to better control/monitor their children’s online activities/interactions. But what’s really impressive (and far more important) is that so many surveys and studies continue to show that the vast majority of parents utilize a variety of household “media consumption rules” as a substitute for, or compliment to, parental control technologies. In fact, in many ways, these household efforts represent the most important steps that most parents can take in dealing with potentially objectionable content or teaching their children how to be sensible, savvy media consumers. In my work, I have divided these household media rules into four categories: (1) “where” rules (assigning a place for media consumption); (2) “when and how much” rules (creating a media allowance); (3) “under what conditions” rules (carrot-and-stick incentives); and, (4) “what” rules (specifying the programming kids can and cannot watch).  Again, many households reject technical blocking tools in favor of these household media rules.

For example,  the U.S. Census Bureau’s ”A Child’s Day” reports, conducted from 1994 to 2006, illustrate how the use of household media rules appears to be growing. Parents are crafting more TV rules for their kids today than they were in the past. The press release for the 2004 report reveals that, “Parents are taking a more active role in the lives of their children than they did 10 years ago.” The 2006 study found that 72.4 percent of parents of children age 6 to 11 imposed family television rules on which programs, how early or late, and how many hours children were allowed to watch.

Other surveys and studies have confirmed this. A 2003 Kaiser Family Foundation survey found that “Almost all parents say they have some type of rules about their children’s use of media.” More recent Kaiser surveys have bolstered that finding. For example, a 2006 Kaiser survey of families with infants and preschoolers revealed that 85 percent of those parents who let their children watch TV at that age have rules about what their child can and cannot watch. Of those parents, 63 percent say they always enforce those rules. About the same percentage of parents said they had similar rules for video game and computer usage. Likewise, a June 2007 Kaiser poll revealed that:

• 65% of parents say they closely monitor their children’s media use;
• 73% of parents say they know a lot about what their kids are doing online;
• 87% of parents check their children’s instant messaging “buddy lists;”
• 82% of parents review their children’s social networking sites; and,
• 76% of parents look to see what websites their children have visited.

Finally, a 2007 poll commissioned by Common Sense Media and Cable in the Classroom revealed that 85 percent of parents and legal guardians of children ages 6 to 18 who go online say they have talked to their child in the past year about how to be safe and smart online. And I cite many additional numbers like these in my Parental Controls & Online Child Protection report.

Incidentally, one of the most interesting findings of the Yahoo! survey is that, “Dads are doing their part, and then some.” “Today’s fathers spend more time with their children than three decades ago and take on more household responsibilities,” the survey notes. Specifically:

• 71% of dads (compared to 63% of moms) say they are taking at least one action to help manage their children’s online behavior including having conversations about respecting the privacy of others and checking their children’s privacy settings. — More dads than moms have had a conversation with their children about their digital reputations and how to promote a positive online reputation.
• Fathers more often check to see what personal information can be easily found about their children by searching for their names online. — 53% of dads surveyed told us they plug their children’s names into a search engine at least 2–3 times per year (compared to 38% of moms) — 33% of dads told us they do this search at least once a month.
• Dads spend slightly more time talking to their children about online safety. 47% of dads have the conversation at least once a month or more; 42% of moms have the conversation at least once a month or more.
• According to the survey, more dads than moms use filters to limit where their kids go online, and more dads monitor the time children send text messages and how many text messages they send.

As the father of two elementary school kids, I can only say… Dads rule!

While some might protest that more can and should be done by parents — which is always going to be the case about everything — I would hope those critics wouldn’t lose sight of how much is already being done by parents to monitor and mentor their children’s online actions and interactions.  Let’s give parents some credit for once!

The Online Safety and Technology Working Group (OSTWG) has just released its final report to Congress entitled, “Youth Safety on a Living Internet.”  As I mentioned here last year, this government task force was established by the “Protecting Children in the 21st Century Act,” (part of the ‘‘Broadband Data Improvement Act’,’ Pub. L. No. 110-385) and its mission was to review and evaluate:

• The status of industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives designed to promote a safe online environment for children;
• The status of industry efforts to promote online safety among providers of electronic communications services and remote computing services by reporting apparent child pornography, including any obstacles to such reporting;
• The practices of electronic communications service providers and remote computing service providers related to record retention in connection with crimes against children; and,
• The development of technologies to help parents shield their children from inappropriate material on the Internet.

The task force included over 30 experts from academia, industry, advocacy groups, and think tanks. It was my great honor to be a member of OSTWG and to serve as the chair of 1 of the 4 subcommittees. The four subcommittees addressed: data retention, child pornography reporting, educational efforts, and parental controls technologies. I chaired that last subcommittee on parental controls.

Our conclusions will not be surprising to those who have read previous online safety task force reports, which I have summarized in 2009 white paper, “Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer.”  Generally speaking, we concluded that there is no silver-bullet technical solution to online child safety concerns. Instead – and again in agreement with previous research and task force reports – we have concluded that a diverse toolbox and a “layered approach” must be brought to bear on these problems and concerns. Here’s how we put it in the report:

• There’s no one-size-fits-all, once-and-for-all solution to providing children with every aspect of online child safety. Rather, it takes a comprehensive “toolbox” from which parents, educators, and other safety providers can choose tools appropriate to children’s developmental stages and life circumstances, as they grow. That toolbox needs to include safety education, “parental control” technologies such as filtering and monitoring, safety features on connected devices and in online services, media ratings, family and school policy, and government policy. In essence, any solution to online safety must be holistic in nature and multi-dimensional in breadth.
• To youth, social media and technologies are not something extra added on to their lives; they’re embedded in their lives. Their offline and online lives have converged into one life. They are socializing in various environments, using various digital and real-life “tools,” from face-to-face gatherings to cell phones to social network sites, to name just a few.
• Because the Internet is increasingly user-driven, with its “content” changing in real-time, users are increasingly stakeholders in their own well-being online. Their own behavior online can lead to a full range of experiences, from positive ones to victimization, pointing to the increasingly important role of safety education for children as well as their caregivers. The focus of future task forces therefore needs to be as much on protective education as on protective technology.
• The Internet is, in effect, a “living thing,” its content a constantly changing reflection not only of a constantly changing humanity but also its individual and collective publications, productions, thoughts, behaviors, and sociality.

I encourage everyone to check out the entire report, which I have also embedded down below. I very much hope policymakers will heed the advice found in this and the previous task force reports, which have uniformly found that only such a layered, multi-dimensional approach to online child safety can be effective. The three key prongs to that strategy — or what I call the “3-E Strategy” — are education, empowerment and law enforcement efforts.

Importantly, OSTWG accomplished our charge without resorting to the “moral panic” tone that some have adopted when approaching these issues and concerns. While there are serious challenges and concerns surrounding discussions about child safety, it’s important to acknowledge the important benefits of new media and communications technologies to us and our children. We have done so in this report.

We also were careful not to try to unsettle any settled First Amendment law. One of the most regrettable developments of the past 15 years is that so much time has been wasted passing and then litigating legislative and regulatory enactments that have been so clearly unconstitutional under the First Amendment. If the time and resources that were squandered in those legal skirmishes would have instead been plowed into education, empowerment, and enforcement-based efforts, it could have made a lasting difference.

More generally, we should always remember the sage advice offered by the Supreme Court in 2000: “Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.” OSTWG has charted a sensible way forward in the final report that should hopefully avoid those problems. It is my hope that policymakers take our findings and recommendations seriously and adopt the sort of constructive, practical approach we have outlined in this report.

Finally, I want to send out a big THANK YOU! to Hemanshu Nigam and Anne Collier, who very ably and patiently co-chaired the OSTWG. They did a terrific job herding a lot of cats and bringing this report to a successful completion. Well done Hemu and Anne!

Online Safety and Technology Working Group Final Report http://d1.scribdassets.com/ScribdViewer.swf

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

Oh my.  So today, as part of its ongoing effort to look like the hip new regulatory agency on the block, the Federal Communications Commission decided to launch a MySpace page.    Really. Big. Mistake.

I mean, shouldn’t someone over there have known it would take about 2 milliseconds for various cranks to launch into profanity-laced rants that would make George Carlin blush? Sure enough, the page is already littered with some of the most colorful language you’ll ever lay your eyes on, mixed in with some 9/11 conspiracy theories, a plug for the Marijuana Policy Posse, and something about the FCC “build[ing] a cone of terror in [our] homes.”

Go check it out, but avert the children’s eyes first. It ain’t pretty. Which begs the question: Will the FCC apply its  Pacifica indecency standard to its own MySpace page?  Seems like their site is pretty “pervasive” to me, and there could be “children in the viewing audience.”  Time to censor these “fleeting expletives” on the FCC’s MySpace page!

On Friday, the Federal Communications Commission (FCC) released a new Notice of Inquiry entitled, “Empowering Parents and Protecting Children in an Evolving Media Landscape” (MB Docket No. 09-194).  The purpose of this investigation 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. (p. 2)… Our goal with this NOI is to gather data and recommend-ations 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. (p. 3)

This Notice builds on the FCC’s August 31st Report to Congress (“Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming”) that was required pursuant to the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of that bill and the FCC’s proceeding (MB Docket No. 09-26) was 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 that proceeding, and here’s my analysis of why the bill and the FCC’s proceedings are worth monitoring. In previous posts here, I also listed all the major filings and reply comments that were submitted to the FCC in the matter.]

While the FCC’s new Notice outlines several positive impacts that media use may have for children, it then goes on to itemize a variety of concerns about media exposure:

While we recognize that electronic media technologies offer these potential benefits to children, we also explore the risks of harm that media use presents. As discussed below, these risks include (i) exposure to exploitative advertising; (ii) exposure to inappropriate content (such as offensive language, sexual content, violence, or hate speech); (iii) impact on health (for example, childhood obesity, tobacco use, sexual behavior, or drug and alcohol use); (iv) impact on behavior (in particular, exposure to violence leading to aggressive behavior); (v) harassment and bullying; (vi) sexual predation; (vii) fraud and scams; (viii) failure to distinguish between who can and who cannot be trusted when sharing information; and (ix) compromised privacy. We seek comment on these risks, whether parents, teachers, and children are aware of them, and what can be done to protect children from them.

It’s not really clear to me where the FCC finds the jurisdictional authority to investigate some of these things (hate speech? bullying?), but let’s not worry about that here. The question a lot of folks — especially those with strong First Amendment leanings — will be asking is: Where is the FCC heading with this in terms of new speech controls or content regulation?

In my earlier work on the “Child Safe Viewing Act,” I worried that the bill and resulting FCC investigation might be the beginning of “convergence-era content regulation.” I was pleasantly surprised, however, with the FCC’s final Report to Congress about the Child Safe Viewing Act, which did a very nice job highlighting the amazing diversity of parental control tools and methods on the market today.  That being said, the proceeding noted that “no single parental control technology available today works across all media platforms” and might have left the impression in minds of some critics that it was somehow possible to create a “universal” parental control or rating mechanism to deal with content across platforms.

Not only is it highly unlikely that such a silver-bullet solution is possible, but it’s unclear that it is even desirable.  I spent some time addressing this issue in my big filing to the FCC earlier this year.  If you jump to pg. 98 of my filing, you will find a section on “The Perils of Mandatory Controls, Restrictive Defaults or ‘Universal’ Ratings.” In it I argue:

the search for technological silver?bullet solutions and “universal” ratings or controls represents a quixotic, Holy Grail?like quest. Simply stated, if it sounds too good to be true, it probably is. There are no simple solutions or quick fixes to concerns about objectionable media content or online child safety. Only a “layered” approach—involving many tools, methods, and strategies—can get the job done right. And technological blocking controls are probably the least important part of that mix. Education and mentoring are far more important. Moreover…  any move to force “universal,” top?down solutions could destroy future innovation in this space. [There are] unforeseen downsides to mandating controls and defaults as well as efforts to create universal rating or labeling schemes.

Again, to be clear, the FCC’s final report to Congress did not recommend any such thing, and the agency is to be commended for that.  But, at the end of the Child Safe Viewing Act report to Congress, the agency also noted that another Notice of Inquiry would dig a little deeper into possible solutions, and now here it is.  But it still remains unclear where the FCC might take this in terms of concrete steps. I was pleased to see a strong focus on the importance of education and media literacy in the agency’s latest notice, so that’s very good news. But there’s also plenty of hand-wringing about the supposed negative impacts of media throughout the report, which leads one to believe that the agency isn’t going to just settle for education-based solutions.

Importantly, there’s also a lot of talk about the supposed dangers of advertising to children in the new Notice:

Exposure to excessive and exploitative advertisements is a significant risk children face from electronic media. Advertisements of particular concern for children include: (i) those that promote products specifically to children; (ii) those that promote unhealthy food, thereby contributing to childhood obesity, and (iii) those that contain inappropriate content, such as offensive language, sexual content, and

This is actually one area where the FCC does have a little jurisdictional authority under the Children’s Television Act of 1990. But I don’t see how the agency can read that statute, which was intended for broadcast television, too broadly.  Regardless, if I had to bet on one thing we are certain to see come out of this proceeding, I’d say some expanded advertising restrictions are in the works.  But, again, the agency’s limited jurisdiction makes it hard for me to understand where they plan to go with this or how it would pass muster in the courts once challenged.

Anyway, stay tuned. Comments in the matter are due to the FCC by late December.  Meanwhile, one wonders how long it will be before Sen. Rockefeller and others up on Capitol Hill start to engage more on content-related issues.  They’ve been fairly silent so far this year.  In light of Sen. Rockefeller’s past efforts on this front, it seems likely he’ll eventually engage in this debate — and likely in a very pro-regulatory fashion.

“Schools in Beijing are quietly removing the Green Dam filter, which was required for all school computers in July, due to complaints over problems with the software,” notes this Reuters report. Even though China backed down on their earlier requirement to have the Green Dam filter installed on all computers, according to Reuters “schools were still ordered by the Ministry of Industry and Information Technology to install the web filter, which Chinese officials said would block pornography and other unhealthy content.”  The Reuters article mentions a notice carried on the home page of one Beijing high school that reads: “We will remove all Green Dam software from computers in the school as it has strong conflicts with teaching software we need for normal work.”  The article also cites a school technology director, who confirmed that the software had been taken off most computers, as saying “It has seriously influenced our normal work.”

Ironically, many educators and librarians in the United States can sympathize since they currently live under similar requirements.  Under the Children’s Internet Protection Act (CIPA) of 2000, publicly funded schools and libraries must implement a mandatory filtering scheme or run the risk of losing their funding. As the Federal Communications Commission summarizes:

[CIPA] imposes certain types of requirements on any school or library that receives funding for Internet access or internal connections from the E-rate program… Schools and libraries subject to CIPA may not receive the discounts offered by the E-rate program unless they certify that they have an Internet safety policy and technology protection measures in place. An Internet safety policy must include technology protection measures to block or filter Internet access to pictures that are: (a) are obscene, (b) child pornography, or (c) harmful to minors (for computers that are accessed by minors).

Of course, nobody wants kids viewing porn in schools, but CIPA has been know the block far more than that and has become a real pain for many educators, librarians, and school administrators who have to occasionally get around these filters to teach their students about legitimate subjects. Anyway, I just find it ironic that some American lawmakers have been making a beef about mandatory Internet filtering by the Chinese when we have our own mandatory filtering regime right here in the states. For example, back in late June, U.S. Secretary of Commerce Gary Locke and U.S. Trade Representative Ron Kirk sent a joint letter to their Chinese counterparts “urging China to revoke a proposed rule (Circular 226) that would mandate that all computers produced and sold in China pre-install a widely-criticized Chinese Internet filtering program called Green Dam.”  Meanwhile, a congressional resolution was introduced by Rep. David Wu (H.Res. 590) “expressing grave concerns about the sweeping censorship, privacy, and cybersecurity implications of China’s Green Dam filtering software, and urging U.S. high-tech companies to promote the Internet as a tool for transparency, freedom of expression, and citizen empowerment around the world.”

These policymakers are correct to fear government-directed filtering schemes, but why isn’t anyone mentioning the filtering mandates we already have on the books right here in the United States?

Sometimes the most revealing conversations about policy issues happen with our loved ones at the breakfast table. Although loyal TLF readers may remember my partner Michael as my “Posterboy for Advertising’s Pro-Consumer Quid Pro Quo,” he doesn’t usually get into the policy issues I cover.  But this morning, we fell into a conversation about the bitterly contentious issue of marketing to kids:

Michael: Growing up in South Korea, on a military base, we didn’t have any commercials on television. We had three channels and all they showed was public service announcements.

Sounds like paradise for anti-advertising zealots like Jeff Chester and the media reformistas who want to re-create the old media scarcity in the name of “media democracy“! Anyway:

We moved back to the U.S. when I was nine, and suddenly, during all my favorite cartoons, there were ads for toys. It was exciting—and more than a little bit overwhelming! It wasn’t just that I wanted these toys; it was that felt this incredible sense of urgency: I thought we had to go get the toys right now or they’d be gone! What did Rousseau call his innocent man, the Noble Savage? That’s what we were: The noble savage, coming into this world of sophisticated toy advertisements. But it didn’t take long for me to get over this initial bewilderment. My parents explained to me that we didn’t really have to go to the store  right away. (They also explained to me that I couldn’t haggle with the staff at Toys ‘R Us the same way I’d haggled with street vendors back in Korea—something that utterly mystified the staff.) After one trip to Toys Toys ‘R Us, I got the toys I wanted most and, over the next few months, realized that they weren’t anywhere near as exciting as I had imagined. After that, I enjoyed the toy ads on TV, but I lost interest in many of the toys I already had, preferring to create my own toys or play outside.

I explained that advertising of toys to kids has long been the cause celebre of anti-advertising crusaders:

Michael: But kids are acquisitive, too! How are they supposed to know about the latest toys if you can’t advertise to them? And what’s the big deal, anyway? I got used to toy ads and I think most kids would, too. The thing that’s different is incentive programs at stores.

My sister was really into the Limited Too‘s incentive program from the ages of about 7 to 11. She knew all the saleswomen by name at the Limited Too in our mall. It was like our mothers at Bloomingdale’s! She had a huge wardrobe for an elementary school kid.  I don’t think it was unhealthy, but it’s not exactly a fair game. Me: So why did your parents let her do it? Michael: Because they were indulgent! Her friends didn’t have wardrobes like she did—it was just my mom. My dad just wasn’t around much, so we spent a lot of time shopping. It shouldn’t really have been that way. Me: Do you think it was bad for your sister? Michael: No, but it’s a good thing she’s so sensible and practical now, because otherwise her acquisitiveness about clothes might get out of hand. I think she learned that at the Limited Too.

So maybe shopping incentive programs could really teach some kids bad habits and maybe those habits are hard (but certainly not impossible) to kick later on in life. Those are good reasons for parents not to let their kids sign up for such rewards programs! We certainly don’t need a law to fix this problem: We just need parents to exercise their power of the purse and learn to say “No!”—as the parents of Michael’s sister’s friends apparently did. Relying on parental responsibility instead of banning such programs means that parents would have the opportunity to teach their kids to shop responsibly—and still benefit from the discounts such programs offer on clothes they’d buy anyway.

In the meantime, let’s stop pretending kids are helpless drones just waiting to be programmed by evil marketers who get them “hooked on capitalism” by showing them ads for GI Joe, Barbie, digital penguins, Hannah Montanna or whatever it is kids these days care about. Oh, and lest anyone insist that kids don’t really “need” toys or clothes from Limited Too, let me simply point to this brilliant 1959 magazine ad by the ad firm Young & Rubicam:

There is no chestnut more overworked than the critical whinny: “Advertising sells people things they don’t need.” We, as one agency, plead guilty. Advertising does sell people things they don’t need. Things like television sets, automobiles, catsup, mattresses, cosmetics, ranges, refrigerators, and so on and on. People don’t really need these things. People don’t really need art, music, literature, newspapers, historians. wheels, calendars, philosophy, or, for that matter, critics of advertising, either. All people really need is a cave, a piece of meat and, possibly, a fire. The complex thing we call civilization is made up of luxuries. An eminent philosopher of our time has written that great art is superior to lesser art in the degree that it is “life-enhancing.” Perhaps something of the same thing can be claimed for the products that are sold through advertising. They enhance life, to whatever degree they can.

I’d much rather have parents deciding what their kids “need” than some paternalist bureaucrat!

On July 27th, The Progress & Freedom Foundation hosted a Capitol Hill panel discussion entitled “Online Child Safety, Privacy, and Free Speech: An Overview of Challenges in Congress & the States.” The event featured remarks from:

• Parry Aftab, Executive Director, WiredSafety.org
• Todd Haiken, Senior Manager of Policy, Common Sense Media
• Jim Halpert, Partner, DLA Piper
• Berin Szoka, Senior Fellow, The Progress & Freedom Foundation

We’ve just released the transcript of the event, which I have also pasted down below the fold in a Scribd document reader. Also, the audio for this event can be heard by clicking below:

Download mp3

Here is the full event description:

Online child safety, privacy, and free speech remain hotly debated issues at both the federal and state level. Bills introduced in Congress to address cyberbullying concerns propose either educational initiatives or a criminalization approach. Access to objectionable content also remains a concern and a new, government-mandated task force is looking into those issues. Meanwhile, state officials, including many state attorneys general, continue to explore age verification mandates for social networking sites and some have considered building on the federal Children’s Online Privacy Protection Act (COPPA) to expand “parental notification” mandates. The Federal Trade Commission (FTC) has recently announced an expedited review of COPPA to see if it is keeping up with new developments. The FTC is also exploring child safety in virtual worlds. New concerns about “sexting,” or the sending of sexual explicit images over mobile devices, has also raised new concerns led some lawmakers to ponder penalties.

How serious are these concerns? Is legislation or regulation needed to address them? What free speech issues are at stake? Should Congress take the lead or leave it to the States to experiment with different models? These and other issues were discussed by a panel of leading experts in the field of online safety and privacy policy.

Transcript PFF Online Child Safety Privacy Hill Event (7-27-2009) http://d.scribd.com/ScribdViewer.swf?document_id=18756666&access_key=key-1blb7az1ag406howibuk&page=1&version=1&viewMode=

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/.

Last year, my PFF colleague Adam Thierer asked whether State AGs + NCMEC = The Net’s New Regulators? Adam noted that NCMEC, the National Center for Missing and Exploited Children, a private non-profit organization, was playing a law enforcement role in regulating child pornography—but without any clear mechanisms for ensuring its accountability and effectiveness. Adam’s point wasn’t just that transparency is a good thing, but that when it comes to a cause as important as protecting children from exploitation, it’s vital to ensuring that we’re that we’re actually doing a good job at it!

Yesterday, Emmanuel Lazaridis commented on that post:

Given the increasing regulatory and investigative powers of the NCMEC, it is no longer clear whether or not the [Freedom of Information Act] applies to NCMEC records. We are about to find out. I am right now bringing a case against the NCMEC in federal court for access to records under the FOIA and, failing that, for discovery under 28 U.S.C. § 1782(a).

Mr. Lazaridis’s complaint in the D.C. District Court claims that Lazaridis (a Greek national) has been unfairly deemed a fugitive from U.S. justice for having taken his daughter to Greece over the objections of the girl’s American mother, Lazaridis’s ex-wife. NCMEC got involved by placing the girl on their MissingKids.com registry of abducted children. Lazaridis wants the court to recognize his custody, deem him not to be a fugitive, and to order NCMEC to turn over all their records on the girl.

This is, of course, just one side of the story (and such cases are usually so complicated as to be indecipherable to outsiders). But even if Lazaridis’s case were wholly without merit, his basic argument would be a sound one: Why shouldn’t NCMEC, in exercising any of its essentially governmental functions, be subject to the same accountability requirements through FOIA as the FBI would be?

When the issue is the Lazaridis family’s trans-Atlantic custody battle, it may seem easy to ignore this question. But when NCMEC is essentially making policy regarding filtering Internet content, blacklisting websites, turning over user logs to law enforcement, or “cleaning up” Craigslist, the question of NCMEC’s accountability under FOIA cannot be avoided as a critical decision about the future of Internet governance.

On heels of Adam’s piece last year, controversialist Chris Soghoian suggested one answer: Given its status as a sacred cow, we cannot expect any politician pay heed to calls to overhaul NCMEC or subject it to oversight. However, what we can do, is call for the nationalization of the National Center for Missing and Exploited Children.

Think of it this way: We have a drug czar, a war czar, a copyright czar, and will likely have a cybersecurity czar and car czar under the next administration. Why not throw a child porn czar into the mix? Nationalize NCMEC, make all of its workers federal employees, with good health care and job security, and perhaps even expand its budget–after all, it does good work, right? NCMEC’s job is simply too important to be entrusted to a nonprofit group–such a task can only be performed by a fully trained and funded law enforcement agency (one, which conveniently enough, is subject to the Freedom of Information Act, congressional oversight, and constitutional requirements for due process.)

Despite my differences with Chris, he’s often right and may be here, too. He’s certainly right that Congress is unlikely to address the problem of NCMEC’s accountability given the sensitivity of the issue of child protection.

But, fortunately, we live in a republic, not a pure democracy: Our third branch of government, the courts, exists to enforce the rule of law; being somewhat insulated from political pressure, the courts provide a final check on the authority even of the almighty NCMEC. So while Chris’s nationalization proposal might well be the ideal solution, it hasn’t happened yet—nine months later to the day, and it’s probably not high on the Obama administration’s list of czarist reforms.

But simply by ordering NCMEC to comply with FOIA, the Lazaridis court could, with the stroke of a pen, bring accountability to NCMEC’s law enforcement functions. The legal question is simple: Does NCMEC qualify as an “agency,” which FOIA defines as an “authority of the Government of the United States?”

If so, NCMEC must not only respond to requests for certain of its “records,” but it must also follow a rule-making process akin to that required of federal agencies when they make policy decisions, offering the public appropriate notice and the opportunity to comment on proposed regulations—instead of, say, threatening Internet companies behind closed doors (sometimes the same companies that later make generous donations to NCMEC) or cutting deals with state attorneys general.

It turns out that this is not a new issue. Federal courts have had to decide whether a number of quasi-governmental entities qualify as “agencies” over the years, especially given the trend towards privatization over the last three decades. Some organizations, like the Smithsonian Institution, have decided to comply with FOIA even though courts have held that they’re not required to do so. NCMEC could have allayed all these concerns years ago by doing the same thing, but absent a change in management at the organization, it seems only a court order will force the organization to open its “black box” of decision-making to public inquiry.

In a number of other circumstances, courts have required nominally private organizations to comply with the federal FOIA or its state equivalents. A thorough (if dated) treatment of this issue can be found in the 1999 law review article, Privatization and the Freedom of Information Act: An Analysis of Public Access to Private Entities Under Federal Law by Craig Feiser, Florida’s deputy solicitor general and an adjunct at FSU Law. Feiser explains:

When Congress amended FOIA in 1974, it added section 552(f)(1) and broadened the definition of “agency” to include entities not explicitly mentioned under the APA, but which “perform governmental functions and control information of interest to the public.”

In deciding whether a private organization qualifies as an agency subject to FOIA, courts have considered two factors.

One factor asks whether the entity has substantial independent authority in performing a function of the government, making it the functional equivalent of the government. The other factor asks whether the government substantially controls the entity’s day-to-day operations or organizational framework. In using either factor, the court is essentially asking to what degree the entity is performing a government function. In one case, the government is pulling nearly all of the strings; in the other case, the entity is making decisions independently for the government.

Financially, NCMEC is largely a creature of government: 70% of NCMEC’s $42 million budget in 2007 came from the government. But as Feiser notes, funding does not always mean control. Government control over NCMEC’s internal decisions is unclear. Indeed, the very lack of government control over an organization essentially regulating the Internet and imposing criminal sanctions that could follow convicted “sex offenders” for life would by itself be an enormous problem.

But given what NCMEC actually does, it obviously qualifies as an “agency” subject to FOIA under the “functional equivalence factor,” which as Feiser explains,

basically represents the opposite situation from the control factor. Here, the entity is functioning independently, but making decisions for the government, as opposed to having its decisions made by the government. In effect, it is the functional equivalent of the federal government, and, therefore, it should be an “agency” under the FOIA.

I’ll be watching the Lazaridis case closely, hoping that the court sees NCMEC for what it is: a private organization tasked with implementing not just any government function, but the enforcement of laws against the most vulnerable victims in society. Absent such a recognition, NCMEC will continue to grow into an unaccountable regulator for the Internet.

Today, the only public oversight of NCMEC required by law is the requirement that NCMEC (like any non-profit with federal tax-exempt 501(c)(3) non-profit status) file a Form 990 each year disclosing basic information about its finances. That report does not list NCMEC’s donors, because donors have a First Amendment right to remain anonymous, but a more transparent organization would, like my own think tank, at least identify its major donors. The 2006 and 2007 Form 990s do reveal a few interesting things, though, about what NCMEC does with its budget (70% of which comes from the taxpayer):

• NCMEC’s CEO, Ernie Allen, was paid $359,191 plus $411,636 in benefits in 2006 (PDF p. 46) and $409,821 plus $426,540 in benefits in 2007 (PDF p. 19), for a total of $1.6 million in two years (roughly $800,000/year);
• Not counting Allen, NCMEC spent $778,564 on its top five highest-paid employees in 2006 ($155,713/employee), and $875,657 in 2007 ($175,131/employee) (PDF p. 10 in both);
• 31% of NCMEC’s 2006 revenues and 35% of its 2007 revenues went to salaries (PDF pp. 1 & 2 in both); and
• NCMEC had 104 employees paid over $50,000 in 2006 (PDF p. 10) and 116 in 2007 (PDF p. 10).

I’d be reluctant to suggest that anyone at NCMEC was more interested in money than in protecting children, but if given the choice, we’d all prefer to do well while doing good. So if Allen were smart, he’d realize that a court order subjecting NCMEC to FOIA might be the best of all possible worlds: Requiring real accountability would neutralize calls for nationalizing NCMEC, allowing the organization to continue operating as a non-profit that can pay quite a bit better than the Federal civil service. Even the Senior Executive Service, for agency heads, maxes out at a measly $177,000/year.

Of course, if NCMEC’s records and decisions to regulate the Internet were subject to FOIA, the organization might not be able to… “convince” the Internet companies it essentially regulates to write large checks to NCMEC. But even this tax-hating libertarian would be hard-pressed to argue against funding the enforcement of laws against child pornography, abduction and exploitation with taxpayer dollars.

As the grandson of an FBI agent, whose framed credentials hang in a place of pride in my office (stamped “RETIRED” after his 25 years of loyal service), I can’t help but wonder how many more agents the FBI could employ to combat child porn with an extra $1.6 million/year in funding (the salary of Allen and NCMEC’s top-five highest paid employees). It seems that FBI agents today make roughly $48,000-87,000/year. Let’s call it an average of $67,500 and throw in 20% for overhead. That works out to $81,000/year—or:

• 20 new agents for what NCMEC is paying its top six employees; or
• 368 new agents for the $29.82 million NCMEC received in government support in 2007.

I’m sure the solution is far more complicated than simply hiring more FBI agents, and that NCMEC does much good work in the service of a noble cause. But until NCMEC is either nationalized as a direct arm of law enforcement or made significantly more accountable as a private organization, we won’t really have any way of knowing whether the money being spent on NCMEC is being spent in the most effective manner possible to deal with the problems of child pornography, abduction and exploitation. We also won’t know whether draconian alternatives to direct enforcement ( e.g., hiring more FBI agents) like network-level filtering mandates are truly necessary, despite their unintended consequences for the free speech and privacy rights of law-abiding Internet users.

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 new Maine law I blogged about on Sunday is much worse than I thought based on my initial reading. If allowed to stand, it would constitute a sweeping age verification mandate introduced through the back door of “child protection.”

The law, which goes into effect in September, would extend the approach of the Children’s Online Privacy Protection Act (COPPA) of 1998 by requiring “verifiable parental consent” before the collection of kids “personal information” about kids, not just those under 13, but also adolescents age 13-17.  Unlike other state-level proposals in New Jersey, Illinois, Georgia and North Carolina, Maine’s “COPPA 2.0” law would also cover health information, but would only govern the collection and use of  data for marketing purposes (while the FTC has interpreted COPPA to cover to essentially any capability for communicating personal information among users).

But the Maine law would go much further than these proposals or COPPA itself by banning transfer or use of such data in anything other than de-identified, aggregate form. Still I took some comfort in the fact that the Maine law, unlike COPPA or these other proposals, lacked the second of COPPA’s two prongs: (i) collection from kids and (ii) collection on sites that are directed at kids. It’s because of the second prong that COPPA applies not only when a site operator knows that it’s collecting information from kids (or merely allowing them to share information with other users), but also when the operator’s site is (like, say, Club Penguin) targeted to kids in terms of its subject matter, branding, interface, etc. Because I initially concluded that the Maine law would apply only to knowing collection, I supposed that it would be less likely to require age verification of all users, as other COPPA 2.0 proposals would—something that would be unlikely to survive a First Amendment challenge based on the harm to online anonymity.

But I was quite wrong. During the PFF Capitol Hill briefing Adam and I held on Monday, Jim Halpert, one of our panelists, noted that the bill imposed “strict liability.” When I re-read the law, two small provisions with enormous consequences jumped out at me.  First, this section:

Unlawful collection. It is unlawful for a person to knowingly collect or receive health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent of that minor’s parent or legal guardian.

The knowledge requirement above pertains to whether the collection is done “knowingly,” not whether the operator “has actual knowledge that it is collecting personal information from a child” (COPPA’s language). It’s possible that the Maine legislature meant to require that operators know that they’re collecting information from kids, not merely that the collection is intentional and not inadvertent, but if so, they either didn’t read COPPA or don’t understand statutory drafting.

But even if operators could be held liable if they had actual knowledge that they were collecting personal or health information without parental consent, the other operative language of the bill has no knowledge requirement at all. Thus, if an operator truly had no idea it was collecting information from a kid—kids commonly lie about their age to gain access to age-restricted sites—the operator would still be strictly liable for transferring or using that data under the other operative provisions of the law:

Unlawful use. A person may not sell, offer for sale or otherwise transfer to another person health-related information or personal information about a minor if that information: A. Was unlawfully collected pursuant to subsection 1; B. Individually identifies the minor; or C. Will be used… for the purpose of marketing a product or service to that minor or promoting any course of action for the minor relating to a product.

Thus, the only way affected site operators ( e.g., anyone who asks for user’s names as part of a profile and also uses personal information in marketing) could protect themselves under the law would be to age verify all users. Thus, the Maine law is, like other COPPA 2.0 proposals, simply an age verification mandate imposed on all adult users of sites with increasingly prevalent social networking functionality dressed up as a child protection measure. Again, unlike other COPPA 2.0 proposals, the Maine law would not apply to all sites that collect personal information for marketing purposes, but for those that do, it would have the same consequence as other COPPA 2.0 proposals.  As we argue in our paper (p.24), COPPA 2.0 proposals in general are very likely to be struck down on the same grounds as the Child Online Protection Act (COPA), COPPA’s evil twin sister, which would have required age verification for all content deemed “harmful to minors” and which the courts have struck down as blatantly unconstitutional.

Although one might argue that the Maine law does less harm to speech because it applies only to sites that collect and use/transfer data for marketing purposes, while COPPA’s reach is far broader, the Dormant Commerce Clause argument against the law would also probably succeed: the law unduly burdens interstate commerce by imposing Maine’s standards on the rest of the country. Under the law’s strict liability regime, efforts to geo-target users in Maine (themselves a significant burden on website operators) would not protect out-of-state site operators from liability for collecting data from some users in Maine because geo-targeting is necessarily imperfect.

But wait; there’s more! Other COPPA 2.0 proposals would have this consequence because they would apply either to all social networking sites with a certain functionality (Illinois) or to collection of information through sites “directed at” adolescents (New Jersey), which could apply to sites used by large numbers of adults. But for most sites, such laws would only apply where the operator had “actual knowledge” that the user was a kid, thus recognizing (for those sites) that perfect age verification is impossible and that some kids will inevitably circumvent any age verification system imposed. By contrast, the Maine law would hold sites liable for “predatory marketing” for every collection, use, or transfer of a kid’s personal information whether or not the operator knew (or even had reason to know) that they were collecting information from kids at a rate of $10-20k for the first offense and $20k+ (with no upper bound at all) for each subsequent offense. Since offense here could mean each individual act of collection, and since large social networking websites have tens of millions of users, operators might theoretically be subject to fines in the hundreds of billions of dollars!

If this law survives constitutional challenge, I’ll eat the HTML in which this post is written! More likely, the legislature will back down at the first whiff of a legal challenge and go back to finding other, less obviously unconstitutional ways to impress their constituents with how much they care about “Protecting the Children” (or how little they care about free speech or know about how the Internet works).

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.

Maine has just enacted a law severely restricting marketing to kids: the Act To Prevent Predatory Marketing Practices against Minors, summarized by Covington & Burling. Adam and I released a major paper in June about such laws: COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech. Maine is following the lead of several other states that have tried to expand the Children’s Online Privacy Protection Act (COPPA) of 1998 to cover nost just kids under 13 but adolescents as well and potentially all social networking sites. We discussed at length the problems such laws create, particularly the possibility that large numbers of adults would, for the first time, be subject to age verification mandates before accessing (or participating in) the growing range of sites with social networking capabilities.  This, in turn, would significantly “chill” free speech online by undermining anonymity.

Like COPPA 2.0 proposals in New Jersey (simply extending COPPA to cover adolescents) and Illinois (applying COPPA to most social networking sites), the Maine law tries to build on COPPA’s “verifiable parental consent” requirement for the 13-17 audience as well as those under 13.

On the one hand, the Maine law goes much further than these other COPPA 2.0 proposals. While the original bill was limited to the Internet and wireless communications, the final bill’s scope applies to all communications.  The bill also covers “health-related” information (HRI) as well as “personal information” (PI). On the other hand, the Maine law is thus somewhat narrower than other COPPA 2.0 proposals and COPPA itself in that it applies only to “marketing or advertising products, goods or services.” While COPPA is commonly misunderstood to cover only marketing, it actually covers essentially any “collection” (broadly defined) of personal information from kids for any purpose—including merely giving kids access to communications functionality that might let them share personal information with other users (even if the site itself is not “collecting” that information in the commonly understood sense).

Verifiable parental consent is required for collection of HRI or PI (§ 9552(1)). So far, the Maine law is clearly trying to stick to the basic COPPA model while expanding its application to adolescents, health information and the offline world. (Indeed, the law concludes by authorizing the state AG to bring enforcement actions for violations of COPPA, as COPPA itself allows.) But the Maine law goes much further by banning:

• The transfer of HRI/PI to third parties if it “individually identifies the minor” (§ 9552(2)); and
• The use of HRI/PI “for the purpose of marketing a product or service to that minor or promoting any course of action for the minor relating to a product” (§ 9553).

It’s unclear what either prohibition will mean in practice. Obviously, if the law imposed a complete ban on the use of HRI/PI, there would be no point to obtaining verifiable parental consent in the first place! Thus, the law seems to contemplate that the prohibition on transferring individually identifying information would leave data-collectors free to transfer de-identified data once they’ve obtained verifiable parental consent for the initial collection. I’m no marketing expert but I imagine that Maine legislators were trying to ban the sale of lists that identify individual kids, while allowing the use of de-identified data for, say, analyzing patterns of interests among kids.

It’s less clear what the use-prohibition (§ 9553) actually means. Would it allow kids-oriented marketing based on aggregated de-identified information? If so, what would that actually mean in the real world? Would that be a distinction without a difference by effectively shutting down legitimate marketing most people would find unobjectionable, harmless, or even very helpful? If the law wouldn’t even allow such use of aggregate data, why, again, would any company ever bother obtaining parental consent?

Indeed, the Association of National Advertisers has interpreted this provision as amounting to an outright ban, regardless of parental permission, and points out that the bill:

would seemingly cut off “minors”‘… from being marketed to about colleges and universities, testing services such as the SAT and ACT, test prep services, class rings, among many other potential categories.

ANA vows to “have the law abrogated or modified so that it will not continue to place such extraordinarily broad restrictions on marketers, when the legislature reconvenes” in January—even though the law goes into effect in mid-September. They could challenge the law on a number of grounds in the courts.

While the First Amendment analysis of commercial free speech rights doubtless be complicated, a simpler argument could be brought on Dormant Commerce Clause grounds: Under the Supreme Court’s 1970 decision in  Pike v. Bruce Church, if “the burden imposed . . . is clearly excessive in relation to the putative local benefit, and if the local interest can be promoted by other regulations that have a lesser impact on interstate activities,” the court may strike down a state law that burdens interstate commerce. Indeed, the courts have struck down a number of Internet-related state laws on such grounds.

Insofar as Maine’s law affects online communications, it could be struck down on Dormant Commerce Clause grounds by forcing out-of-state websites to treat users in Maine differently—or to treat all users as if they were in Maine. To some extent, this will depend on how the statute is actually construed. COPPA applies both to knowing collection and to collection through child-oriented sites like Club Penguin (because the operator should know that they are collecting information from a child), but the Maine law applies only to knowing collection. If the statute is narrowly construed, this would mean that only websites that ask user for their age (say, in setting up a social networking profile) would generally be affected. A broader reading might affect websites that are oriented towards, or simply popular among, minors, in which case sites would essentially be forced to age verify all users (as with other COPPA 2.0 proposals). While this seems unlikely given the meaning generally attached to the word “knowing” in American law, even the narrow reading would affect many social networking sites.

The other major unanswered question lies in how broadly the term “individually identifiable information” would be construed. Like COPPA, the Maine law covers all such information, but rather than define this term exhaustively, the laws simply provide a few more specific categories of examples. Maine’s list differs from COPPA’s in that it does not include e-mail addresses, telephone numbers, screen names, or other contact information. But the list does include names, and this is enough to implicate profile-basedsocial networks like Facebook. If construed more broadly, the Maine law could affect other website operators.

In any event, if websites have to try to accomodate Maine’s law, they might have to track user location to ensure that they comply with Maine law.  As we noted in our paper:

If a site relied only on location information provided by the user, adolescents would quickly learn to lie about what state they live in just as children have learned to lie about how old they are to avoid triggering COPPA’s “actual knowledge” requirement.  Alternatively, websites could attempt to determine a user’s location automatically based on their IP address, but such “IP geocoding” is not always accurate and can be subverted by use of a proxy.

Finally, in case you were wondering where this bill came from, here’s the purpose statement for the original bill:

This bill addresses the current practices of persons using the Internet and other wireless communications devices, with or without promotional incentives, to acquire health-related information about minors and then using that information unscrupulously. Under this bill, it is unlawful to solicit or collect health-related information about a minor who is not emancipated without the express written consent of the minor’s parent or guardian, to transfer any health-related information that identifies a minor or to use any of that information to market a product or service to a minor regardless of whether or not the information was lawfully obtained. Unlawful marketing includes promoting a course of action relating to a product.

If a challenge is brought in court, the state will have to be a lot more specific about defining the harm at issue than merely asserting that information is being collected and might be unsed “unscrupulously.” As the Supreme Court declared in the 1993 case of Edenfield v. Fane, the government’s burden in justifying a restrictions on even commercial speech (which is accorded less protection than non-commercial speech):

is not satisfied by mere speculation or conjecture; rather a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.

In short, this new law raises many legal and practical questions. I’ll be watching closely to see how any effort have the law amended or challenged in court plays out.  I suspect we’ll see more states following Maine’s lead if this law stands in its current form.

The Senate Commerce Committee held a hearing yesterday where a number of Senators as well as Julius Genachowski, the new Chairman of the Federal Communications Commission, did a lot of fretting about the state of the modern children’s television programming marketplace.  According to the Wall Street Journal, Senate Commerce Committee Chairman Jay Rockefeller (D-WV):

suggested that a “little red button” be required on TVs so that a child could push the button to find out how a show is rated. Democratic Sen. Mark Pryor of Arkansas agreed that a red button might help since parents often have difficulties figuring out which shows are appropriate for their children to watch.

Well, I have some good news for the Senators: There are already quite a few little buttons on every remote control made today, and at least one of those buttons can pull up an on-screen guide to get more program info! (Another of them can turn the TV off!) Moreover, the ratings for just about every program already appear at the beginning of each show, and sometimes in between. And you can find out plenty more online about every TV show under the sun if you care to look.  So, I’m not sure what that fuss is all about, and we certainly don’t need to mandate “little red buttons” on every TV set when program information can be found in so many other ways.

What is more troubling about all the hand-wringing taking place at the hearing, as well as the talk of reopening the Children’s Television Act of 1990 to potentially impose more content mandates on video programmers and distributors, is that: (1) there doesn’t seem to be much appreciation for just how much wonderful children’s programming is out there today compared to the past, and (2) there doesn’t seem to be much recognition of the serious First Amendment issues at stake when government gets involved in the messy business of regulating video programming.

On that first point, let me just reiterate what I have found after conducting an exhaustive survey of the market for children’s programming in my ongoing PFF special report, Parental Controls & Online Child Protection: A Survey of Tools & Methods.  I found that the overall market for family and children’s programming options continues to expand quite rapidly. Thirty years ago, families had a limited number of children’s television programming options at their disposal on broadcast TV.  Today, by contrast, there exists a broad and growing diversity of children’s television options from which families can choose. The list below highlights just some of the more popular family- or child-oriented networks available on cable, telco, and satellite television today. And this list continues to grow rapidly.

• ABC Family Channel (http://abcfamily.go.com)
• Animal Planet (http://animal.discovery.com)
• Anime Network (www.theanimenetwork.com)
• Black Family Channel (www.blackfamilychannel.com)
• Boomerang (www.cartoonnetwork.com/tv_shows/boomerang)
• Cartoon Network (www.cartoonnetwork.com)
• Discovery Channel (www.discovery.com)
• Discovery Kids (http://kids.discovery.com)
• Disney Channel (www.disney.go.com/disneychannel)
• Encore WAM!
• Familyland Television Network (www.familyland.org/content/Content.aspx?CategoryID=51)
• FUNimation (www.funimation.com)
• Hallmark Channel (www.hallmarkchannel.com)
• Hallmark Movie Channel (www.hallmarkmoviechannel.com)
• HBO Family (www.hbofamily.com)
• History Channel (www.history.com)
• KTV – Kids & Teens Television (www.ktvzone.com)
• Learning Channel (http://tlc.discovery.com)
• National Geographic Channel (http://channel.nationalgeographic.com/channel)
• Nickelodeon (www.nick.com)
• Nick 2
• Nick Toons (http://nicktoonsnetwork.nick.com/home.html)
• Noggin (www.noggin.com)
• N Channel (www.the-n.com)
• PBS (www.pbs.org)
• PBS Kids (http://pbskids.org/go)
• Science Channel (http://science.discovery.com)
• Showtime Family Zone
• Sprout (www.sproutonline.com)
• Starz! Kids and Family (http://www.starz.com/appmanager/seg/s?_nfpb=true&_pageLabel=starz_kids_family)
• Toon Disney (http://psc.disney.go.com/abcnetworks/toondisney)
• Varsity World (www.varsityworld.com)

Importantly, this list does not include the growing universe of religious / spiritual television networks. Nor does it include the many family or educational programs that traditional TV broadcasters offer. Finally, the list does not include the massive market for interactive computer software or websites for children.  All of this begs the obvious question: What more is it that policymakers want?

More offerings are always welcome, of course.  But, on a personal note, as the parents of two young kids (ages 5 and 7), my wife and I regularly struggle to sort through all the wonderful video programming options at our disposal.  We often find ourselves swimming through an ocean of choices available from our local broadcasters and multichannel video provider. Moreover, our kids are spending an increasing amount of time watching snippets of video via kid-oriented online search portals like KidZui and Glubble. Such online walled gardens offer a safe place for parents to find terrific online content for their kids.

I have to admit, all the choices my kids have today have left me a bit jealous!  I grew up in small central Illinois town with a couple of crummy (Iowa-based!) broadcast stations that were barely visible on our TV (and usually only when my Dad made me hold the antenna and stick my arms up in the air to get reception!) There was also one local cinema in town that usually showed old movies from the ‘50s and ‘60s that few kids cared to see.  And that was generally the extent of video choices for kids in our town.  Sure, the 1970s brought us Sesame Street as well as Mister Rogers (if that was your cup of tea).  Today, however, we still have those shows and much, much more.  Our kids now enjoy an unprecedented cornucopia of media alternatives and, contrary to what some policymakers would have us believe, many of them are extremely high-quality in nature.  My parents would have likely given anything to just have even one network as incredibly enriching as Noggin at their disposal in the ‘60s and ‘70s.  Instead, on the occasions that the TV had to become a babysitter and nothing worthwhile was on the tube, I usually ended up watching trashy soap operas.  (Don’t even get me started on “Days of Our Lives.” I could write a short history of the show’s 1975-1982 seasons!)

Speaking of trashy shows, there was a lot of talk at yesterday’s hearing about the “need to protect our children from harmful content,” as Sen. Rockefeller began the hearing by arguing.  But as I have shown in my parental controls report, not only are there more and better quality options to steer your kids toward today, but it is easier than ever before to steer them right to those preferred options and lock down everything else in sight.  As I concluded in that report:

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. […] parents now have [many tools and techniques] at their disposal to better control media content and raise their children as they see fit. That is not to say that media and communications technologies don’t continue to play a major role in our society and culture. But… parents have been empowered with tools, controls, strategies, and information, that can help them devise and then enforce a media plan for their families that is in line with their own values.

So, again, it must be asked: What is the problem here?

Finally, it should be noted that any effort by Congress or the FCC to tinker with video programming marketplace will eventually run up against serious First Amendment concerns and eventual court challenges.  In a previous session of Congress, before he became Chairman of the Senate Commerce Committee, Sen. Rockefeller aggressively pushed for expanded content controls, not just for broadcast television, but for cable and satellite platforms as well.  In a 2005 PFF report on Sen. Rockefeller’s “Indecent and Gratuitous and Excessively Violent Programming Control Act of 2005,” First Amendment attorney Robert Corn-Revere of the law firm Davis Wright Tremaine argued that efforts to expand the horizons of FCC regulation to cover more content and platforms “would be almost certain to fail a constitutional challenge.”  Likewise, in a 2007 PFF white paper, constitutional law expert Laurence H. Tribe of the Harvard Law School, noted that the old “it’s-for-the-children” rationale for such content regulation is exactly backwards:

the malleability of children—how easy it is to mold their minds and to influence them—counts against and not in favor of centralized governmental controls. One of the arguments that you will often find is, yes, it’s all very well to believe in free speech between consenting adults but we’re talking about kids here and their minds are like plastic and they are being molded and shaped and, therefore, we have greater power to protect them. Therefore, you should keep your hands off them because they are so easy to shape. No, no, no. The argument is not that kids are malleable and therefore, Big Brother should be empowered. The argument is that kids are malleable and, therefore, families should be empowered. Parental authority should be at the center of decision making.

Indeed. And, as already noted, parents have more tools and strategies to exercise that authority than ever before, as well as more programming options to choose from. Policymakers should be celebrating these modern media marketplace developments, not bemoaning them.  We are blessed to be living in the Golden Age of children’s video programming.

I’ve just had a new article published by the American Legislative Exchange Council (ALEC) in which I make the case against “techno-panics,” which refers to public and political crusades against the use of new media or technologies by the young. The article is entitled “Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics‘” and it appears in the July 2009 Inside ALEC newsletter.  This is something I have spent a lot of time writing about here in recent years (See 1, 2, 3, 4, 5) and I finally got around to putting it altogether in a concise essay here.  I have pasted the full text below. [And I just want to send a shout-out to my friend Anne Collier of Net Family News.org, whose work on this topic has been very influential on my thinking.]

“Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics‘” by Adam Thierer

A cursory review of the history of media and communications technologies reveals a reoccurring cycle of “techno-panics” — public and political crusades against the use of new media or technologies by the young.  From the waltz to rock-and-roll to rap music, from movies to comic books to video games, from radio and television to the Internet and social networking websites, every new media format or technology has spawned a fresh debate about the potential negative effects they might have on kids.

Inevitably, fueled by media sensationalism and various activist groups, these social and cultural debates quickly become political debates. Indeed, each of the media technologies or outlets mentioned above was either regulated or threatened with regulation at some point in its history. And the cycle continues today. During recent sessions of Congress, countless hearings were held and bills introduced on a wide variety of media and content-related issues. These proposals dealt with broadcast television and radio programming, cable and satellite television content, video games, the Internet, social networking sites, and much more.  State policymakers, especially state Attorneys General (AGs), have also joined in such crusades on occasion.  The recent push by AGs for mandatory age verification for all social networking sites is merely the latest example.

What is perhaps most ironic about these techno-panics is how quickly yesterday’s boogeyman becomes tomorrow’s accepted medium, even as the new villains replace old ones.  For example, the children of the 1950s and 60s were told that Elvis’s hip shakes and the rock-and-roll revolution would make them all the tools of the devil. They grew up fine and became parents themselves, but then promptly began demonizing rap music and video games in the ‘80s and ‘90s.  And now those aging Pac Man-era parents are worried sick about their kids being abducted by predators lurking on MySpace and Facebook. We shouldn’t be surprised if, a decade or two from now, today’s Internet generation will be decrying the dangers of virtual reality.

These techno-panics are almost always disproportionate to the real risk posed by new media and technology, which typically do not have the corrupting influence on youth that older generations fear.  Parents and public policymakers alike need to remember they were once kids, too, and managed to live through many of the same fears and concerns about media and popular culture. As the late University of North Carolina journalism professor Margaret A. Blanchard once noted: “[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.” And Thomas Hine, author of The Rise and Fall of the American Teenager, argues that: “We seem to have moved, without skipping a beat, from blaming our parents for the ills of society to blaming our children. We want them to embody virtues we only rarely practice. We want them to eschew habits we’ve never managed to break.”

The better response by both parents and policymakers is a measured and balanced approach to children’s exposure to media content and online interactions.  All-or-nothing extremes are never going to work.  In particular, techno-panics are hopelessly counter-productive. “Fear, in many cases, is leading to overreaction, which in turn could give rise to greater problems as young people take detours around the roadblocks we think we are erecting,” argue John Palfrey and Urs Gasser, authors of Born Digital: Understanding the First Generation of Digital Natives. What parents, educators, and policymakers need to understand, they argue, “is that the traditional values and common sense that have served them well in the past will be relevant in this new world, too.”

Most simply, we need to be willing to talk to our kids about the new technologies and cultural developments that shape their generation. When we as parents (or policymakers) do not fully comprehend or appreciate the new-fangled gadget in our kids’ pocket—or whatever they are playing, watching, or listening to on it—instead of engaging in demagoguery and driving a wedge between us and them, we should instead invite them to have a conversation with us about it.  Ask three simple questions to get that conversation started: “What is this new thing all about?”  “Tell me how you use it.”  “Why is it important to you?”  Once you’ve got them talking to you, good ‘ol fashion common sense and timeless parenting principles should kick in. “Do you understand why too much of this might be bad for you?” “Will you please come talk to me if you don’t understand something you’ve seen or heard?” And so on.

In sum, it’s about parental responsibility and rational, measured responses. The “techno-panic” mentality, by contrast, creates distrust and distance between our kids and us. As Anne Collier of Net Family News notes, techno-panics “cause fear, which interferes with parent-child communication, which in turn puts kids at greater risk.”

Parents and policymakers need to engage kids in an ongoing conversation about the technologies du jour—even when we don’t fully understand or appreciate them.

————— [printable Scribd version follows] —————

“Against Techno-Panics” by Adam Thierer, PFF (July 2009 – Inside ALEC) http://d.scribd.com/ScribdViewer.swf?document_id=17392730&access_key=key-2gdkqylyeu5h376buyyi&page=1&version=1&viewMode=

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.]