In my most recent weekly Forbes column, “Common Sense About Kids, Facebook & The Net,” I consider the wisdom of an online petition that the child safety advocacy group Common Sense Media is pushing, which demands that Facebook give up any thought of letting kids under the age of 13 on the site. “There is absolutely no proof of any meaningful social or educational value of Facebook for children under 13,” their petition insists. “Indeed, there are very legitimate concerns about privacy, as well as its impact on children’s social, emotional, and cognitive development.” Common Sense Media doesn’t offer any evidence to substantiate those claims, but one can sympathize with some of the general worries. Nonetheless, as I argue in my essay:

Common Sense Media’s approach to the issue is short-sighted. Calling for a zero-tolerance, prohibitionist policy toward kids on Facebook (and interactive media more generally) is tantamount to a bury-your-head-in-sand approach to child safety. Again, younger kids are increasingly online, often because their parents allow or even encourage it. To make sure they get online safely and remain safe, we’ll need a different approach than Common Sense Media’s unworkable “just-say-no” model.

Think about it this way: Would it make sense to start a petition demanding that kids be kept out of town squares, public parks, or shopping malls? Most of us would find the suggestion ludicrous. Kids will be present in those environments not just because they want to be but because, more often than not, their parents or guardians want them to be there as well. That doesn’t me we just throw them into those environments and hope for the best. Instead, we assimilate children gradually into these public spaces and use mentoring strategies to make sure they understand how to cope with the challenges they will face. That’s the same approach we should take in the digital age with online public spaces like Facebook.  As my fellow Forbes contributor Joshua Gans rightly notes, “we want children to experience these networks. Put simply, a parental supervised approach is like giving them training wheels for society.” This approach will better prepare our youth for a future in which their online and offline lives are increasingly intertwined. It represents a more sensible use of our personal and public resources since education and mentoring strategies are entirely constitution and avoid the protracted legal battles that would accompany new regulations.

For more, read my entire column.

Yesterday’s 7-2 decision in Brown v. EMA [summaries here from me + Berin Szoka] was one of those historic First Amendment rulings that tends to bring out passions in people. You either loved it or hated it. But it’s sad to see some critics on the losing end of the case declaring that only greed could have possibly motivated the Court’s decision.

For example, California Senator Leland Yee, the author of the law that the Supreme Court struck down yesterday, obviously wasn’t happy about the outcome of the case. Neither was James Steyer, CEO of the advocacy group Common Sense Media, who has been a vociferous advocate of the California law and measures like it. What they had to say in response to the decision, however, was outlandish and juvenile. In essence, they both claimed that the Supreme Court only struck down the law to make video game developers and retailers happy.

“Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children,” Leland Yee said in a post on his website yesterday. “As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.” Jim Steyer reached a similar conclusion: “Today’s decision is a disappointing one for parents, educators, and all who care about kids,” he said. “Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected, but we will continue to fight for the best interests of kids and families.”

Mr. Yee and Mr. Steyer seem to be under the impression that the Court and supporters of its ruling in Brown cannot possibly care about children and that something sinister motivates our passion about the victory. Apparently we’re all just apparently in it to make video game industry fat cats and retailing giants happy! That’s a truly insulting position for Mr. Yee and Mr. Steyer to adopt. Perhaps it is just because they are sore about the outcome in the case that are adopting such rhetorical tactics. Regardless, I think they do themselves, their constituencies, and the public a great injustice by suggesting that only greed could possibly be motivating the outcome in this case.

Why is it so hard for Mr. Yee and Mr. Steyer to believe that many of us — like the majority writing for the Court in Brown — believe that video games represent valuable, constitutionally protected speech and that laws like those in California are an affront to First Amendment rights we cherish? What Mr. Yee and Mr. Steyer are asking us to believe is that all those average gamers and free speech advocates who lined up behind the video game industry and merchants who brought this case did so only out of a concern about the welfare of those companies.  Preposterous!  Anyone who knows anything about game industry politics knows that some rather serious tensions exist between gamers, game developers, and game retailers.

Incidentally, it’s particular silly for Mr. Yee to single out Wal-Mart in his comment yesterday since Wal-Mart actually goes to great lengths to keep “Mature”-rated games out of the hands of minors who might try to purchase them on their own. But I could care less about how much money Wal-Mart, any other retailer, or any video game developer makes from selling games. That’s the last thing on the mind of most First Amendment supporters when they praise this decision and it’s ridiculous that Mr. Yee and Mr. Steyer would list it as the primary motivation of the Court or supporters of the decision.

And then there’s Mr. Steyer’s comment that “today’s decision is a disappointing one for parents, educators, and all who care about kids.”  Utterly insulting tripe. Millions of parents like me “care about kids” passionately and devote most of our lives to raising them properly. I understand you want to help us do that, but you are not helping when you insult the very people you say your organization exists to support.

I have repeatedly praised Common Sense Media here and elsewhere for many of the outstanding services and information they provide to parents. My wife and I regularly consult CSM’s excellent movie and video game summaries before we let our kids consume certain titles. It was also my great privilege to serve on a blue ribbon online child safety task force that CSM created and co-sponsored.

But when Mr. Steyer veers into this sort of hysterical ‘you’re-either-for-these-laws-or-you’re-against-children’ sort of lunacy, it really makes me question whether I should frequent his organization’s website anymore or have any further interaction with this group. While I appreciate CSM’s efforts to empower parents with more and better information about the content our families consume, it is insulting in the extreme for Mr. Steyer to suggest that you can’t “care about kids” and also care about the First Amendment.

Like the majority of the justices on the Court, I support limits on how our government controls speech because we live in a nation that cherishes freedom of expression and personal responsibility.  We should not expect Uncle Sam to act as a national nanny and make subjective determinations about what is best for our families. As Catherine Ross, a professor at George Washington University Law School, noted in a nice Washington Post oped, “By rejecting this radical path, the justices [in Brown] protected our children by preserving our liberty.”

Quite right.  I’m proud the Supreme Court sided with freedom yesterday and against the sort of nannyism from above that Mr. Steyer and Mr. Yee apparently favor and equate with “caring about kids.”  These men obviously don’t take First Amendment rights quite as seriously as some of the rest of us. But shame on them for claiming that just because many of us (or the Courts) do take these rights and responsibilities seriously that it somehow means we don’t care about our children or that we only believe these things in order to make corporations happy.

Reps. Edward Markey (D-Mass.) and Joe Barton (R-Texas) have released a discussion draft of their forthcoming “Do Not Track Kids Act of 2011.”  I’ve only had a chance to give it a quick read, but the bill, which is intended to help safeguard kids’ privacy online, has two major regulatory provisions of interest:

(1) New regulations aimed at limiting data collection about children and teens, including (a) expansion of the Children’s Online Privacy Protection Act (COPPA) of 1998, which would build upon COPPA’s “verifiable parental consent” model; and (b) a new “Digital Marketing Bill of Rights for Teens;” and (c) limits on collection of geolocation information about both children and teens.

(2) An Internet “Eraser Button” for Kids to help kids wipe out embarrassing facts they have place online but later come to regret.  Specifically, the bill would require online operators “to the extent technologically feasible, to implement mechanisms that permit users of the website, service, or application of the operator to erase or otherwise eliminate content that is publicly available through the website, service, or application and contains or displays personal information of children or minors.” This is loosely modeled on a similar idea currently being considered in the European Union, a so-called “right to be forgotten” online.

Both of these proposals were originally floated by the child safety group Common Sense Media (CSM) in a report released last December.  It’s understandable why some policymakers and child safety advocates like CSM would favor such steps. They fear that there is simply too much information about kids online today or that kids are voluntarily placing far too much personal information online that could come back to haunt them in the future. These are valid concerns, but there are both practical and principled reasons to be worried about the regulatory approach embodied in the Markey-Barton “Do Not Track Kids Act”:

• It is very hard to imagine how most elements of this new “Do Not Track Kids” regulatory regime would work without requiring mandatory online age verification of all websurfers, which would raise serious constitutional issues. Previous efforts to age-verify websurfers (namely, The Child Online Protection Act or COPA) have been found to violate the First Amendment and also to raise different privacy concerns. By contrast, the Children’s Online Privacy Protection Act (COPPA) partially avoided this problem by limiting its coverage to kids 12 and under and did not mandate strict age verification. The Markey-Barton bill seems to imagine that the COPPA regime can simply be expanded without serious constitutional scrutiny (or economic cost, for that matter). The sponsors are wrong. Their bill puts COPPA on a collision course with COPA because it would necessitate expanded age verification in order to be effective.
• An Internet “Eraser Button” is similarly challenged by practical realities and principled concerns. It’s unclear how to even enforce such a notion. Moreover, if it could be enforced, it would raise profound free speech issues since it is tantamount to digital censorship and specifically threatens press freedoms. And the economic costs of such a mandate — especially on smaller operators — could be quite significant. See my recent Forbes essay for a discussion of those problems.
• Although some of the concerns that motivate the “Do Not Track Kids Act” are understandable, there are two very different models for how we might address these problems: ‘Legislate & Regulate’ vs. ‘Educate & Empower.’ The latter is the superior framework for dealing with these concerns in light of the practical and principled problems associated with the former.

I will expand upon these concerns in a follow-up post, but for now I would direct your attention to the 36-page white paper that Berin Szoka and I released two years ago on this topic:”COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.” It explains why this issue is so complicated and raises so many constitutional red flags.

Additional Reading:

on COPA:

• Son of COPA?: H.R. 4059, “The Online Age Verification and Child Safety Act” – by Adam Thierer
• Closing the Book on COPA? – by Adam Thierer
• COPA Struck Down (Part 1): Again! – by Adam Thierer
• COPA Struck Down (Part 2): The Effectiveness of Filtering & Age Verification – by Adam Thierer
• COPA Struck Down (Part 3): Implications for Age Verification & Social Networking – by Adam Thierer

on Eraser Button:

• Erasing Our Past On The Internet – by Adam Thierer [Forbes essay]
• Europe Reimagines Orwell’s Memory Hole – by Larry Downes
• “Privacy” as Censorship: Fleischer Dismantles the EU’s “Right to Forget” – by Berin Szoka
• The Conflict Between a “Right to Be Forgotten” & Speech / Press Freedoms – by Adam Thierer

As part of what Politico’s Tony Romm calls this week’s “all-out online privacy blitzkrieg,” Rep. Ed Markey (D-Mass) announced he would be proposing legislation aimed at better protecting kids from the supposed evils of online “tracking” and marketing.  Apparently, Rep. Markey’s effort will build on the “Do Not Track” proposal that is garnering so much attention this week.

Lost in the smoke surrounding that privacy blitzkrieg is an important distinction between these two proposals:  There is a very big difference between re-engineering browsers and websites to comply with a “Do Not Track” mandate and a new regulatory scheme aimed at identifying the ages or identities of individuals using certain online sites or services.  Namely, the latter likely necessitates some sort of mandatory age verification or online authentication regime for the Internet.

Let’s take a step back for some context.  Markey helped author the Children’s Online Privacy Protection Act (COPPA) of 1998, which dealt with the collection of information for kids under 13 online. But COPPA wasn’t a strict age verification or online authentication regime for the Internet.  Instead, COPPA mandated a “verifiable parental consent” regime which the Federal Trade Commission (FTC) later enforced using a so-called “sliding scale” approach.  Essentially, sites that are “directed at” kids under 13 are supposed to get parental consent using a variety of mechanisms (credit cards, sign and fax forms, phone calls, etc) before any collection of information takes place. Of course, there are some devilish details here regarding what counts as “directed at” or “collection,” but the crucial point here is that COPPA does not require the formal authentication of web surfer identities or ages — whether they kids or parents.

So, the really tricky question here is how one goes about expanding the COPPA regulatory regime without stumbling into the legal thicket that tied up the Child Online Protection Act (COPA) of 1998, a law which did mandate such an authentication regime and, as a result, witnessed a grueling decade-long legal battle over its constitutionality.  Ultimately, the courts rejected COPA as inconsistent with America’s tradition of anonymous speech, something central to our evolution as a democracy, pre-dating even the First Amendment that protects it from government interference. Thus, we have, at least for now, closed the book on COPA. But are we about to re-open it with COPPA expansion a la the forthcoming Markey bill?

At yesterday’s House Energy & Commerce hearing on “Do Not Track” where he announced his intention to drop legislation, Rep. Markey didn’t offer concrete details about how his bill would work, but he did go out of his way to praise the work of Common Sense Media (CSM) on this front.  This implies his plan will be in line with what CSM has already advocated.  As I noted in this essay in July, CSM recently submitted a filing to the FTC advocating expanding COPPA’s age scope to cover all kids under 18 as well as opt-in mandates for the collection and use of any “personal information” or “behavioral marketing.”

As I pointed out in that earlier essay, as well as in this beefy paper with Berin Szoka, “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” there are many profound questions raised by any proposal to expand COPPA along the lines that Common Sense Media and presumably now Rep. Markey suggest.  Here are a few questions that privacy advocates and policymakers need to consider before heading down this path:

1. What is the supposed harm that requires such a significant expansion of Internet regulation? Why the need for a massive expansion of federal regulation in this area?  CSM never makes it clear in its FTC filing. Are there corresponding benefits to be considered? Aren’t other values or principles at stake here?
2. What are the free speech implications of their proposals. Extending COPPA to cover older teens will require websites used by large numbers of adults to age verify all users. This raises the same First Amendment concerns about government interference with anonymous communication that caused COPA to be struck down by the courts as unconstitutional. Thus, another lengthy legal battle likely awaits.
3. Is it the case that — in the name of protecting privacy — this approach might demand a massive amount of additional information be collected to facilitate the regulatory regime? Expanded age verification mandates would mean more information has to be collected about kids and their parents, but also about adults who, after all, have to prove they aren’t children!  That means a honey pot of new information would be created and held by someone, potentially the government itself.
4. How would such a proposal cope with all the sites or services that allow voluntary sharing of personal information by children? In an era of widespread user-generated content, instant messaging, online gaming, and other forms of digital interaction, expanded verifiable parental consent requirements become a formidable regulatory problem.
5. Don’t older teens have some speech rights? The Common Sense Media proposal implies that teens are utterly incapable of making decisions for themselves until the day they turn 18.  Never mind that most U.S. states set their age of consent at 16 or 17, for example.  These teens are people who we already allow to hold jobs and drive cars and who will shortly be in college and then eligible to vote and serve in our Armed Forces.  Yet, the CSM approach would require “verifiable parental consent” before older teens could read or look at anything online.
6. What will the economic impact be of this mandate on smaller websites that cater to kids & teens? If expanded regulation crowds out smaller start-ups, the resulting level of creativity and innovation in this market will suffer.  Thus, COPPA expansion could lead to unnecessary industry consolidation as smaller operators are forced to sell to bigger player who can cover regulatory compliance costs.
7. What’s the potential cost to consumers / parents? Expanding verifiable parental consent requirements will no doubt burden the creators or various sites and services, but those costs will ultimately be borne by the public when they are passed along in the form of a fee for services, many of which were previously free of charge.
8. Aren’t there better, less burdensome, ways to protect kids’ privacy online? There are many beneficial steps being taken by site operators today that make kids safer online. If we assume that COPPA is the most important approach to keeping kids safe online, we are making a huge mistake. COPPA is probably one of the least important things that keeps kids safe online. It’s what sites do after kids get into their online communities that is really important because—guess what!—kids are going to get in to social networking communities and other sites.  There are many important steps being taken by countless online sites and communities take to make sure they offer more safe and secure environments for kids. In particular, beyond basic parental controls, moderation and intervention efforts by site operators are increasing within social networking sites, virtual worlds, and many other sites to ensure that they offer such “well lit” online neighborhoods. We should be encouraging a lot more of that and working to find new “oversight and intervention” methods to deal with problems when they pop up. Common Sense Media has done a lot of great work on this front and should have focused on how those methods could be improved instead of how the create a more cumbersome, intrusive, expensive, and ultimately unworkable age verification regulatory regime for the Internet.

As Rep. Markey and his fellow policymakers move forward with any plan to expand COPPA, they should carefully weight these considerations against the supposed evils of online data collection, advertising, and marketing.  It’s certainly true that greater care must be taken by advertisers and marketers when dealing with kids, but education, user / parental empowerment, and industry self-regulation may be the better approach here.

By Adam Thierer & Berin Szoka

Last Friday, Common Sense Media (CSM) held an event  (video) at the National Press Club featuring the chairmen of the Federal Communications Commission (FCC) and the Federal Trade Commission (FTC). The regulatory activist group released a new poll on children and privacy (Exec Summary & Full Survey). Unfortunately, like almost every other privacy-related poll, theirs is more geared towards fueling a privacy panic than on exploring the real-world trade-offs between legislating “greater privacy” (a hopelessly abstract concept in most conversations) and losing the consumer benefits of data sharing: innovation in online services and the quality and quantity of services and content supported by data-driven advertising.

What better way to drum up Congressional support for paternalistic privacy legislation (restrictions on online data use) than by asserting that this is what the electorate already wants? The poll asks whether “Congress should update laws that relate to online privacy and security for children and teens.”  Three-fifths (61% of parents, 62% of adults) said yes. But earlier in the survey, only 16% knew that the Children Online Privacy Protection Act of 1998 already prohibits “online companies… from collecting or using personal information from children under the age of thirteen without a parent’s permission.” (53% weren’t sure.) If parents don’t know what Congress has already done, how meaningful is it for them to say they think Congress needs to do more? (There’s a reason we don’t have direct democracy.)

Indeed, how useful are such polls, anyway? Ultimately, what such polls really tell us is that, if you ask parents—or adults in general—whether they’re concerned about protecting kids, of course most will say yes, because nobody wants to think of themselves as the kind of person who doesn’t care about kids.

This bias becomes even more problematic when the choice at issue involves such stark trade-offs—especially when we’re talking about throwing a wrench (restrictions on data use and collection) in the economic engine that has again and again provided funding for media and services that users just won’t pay for. As we’ve noted here before, privacy polls and surveys reveal only what the public will tell pollsters in response to the particular questions asked. On privacy, those questions are almost invariably designed to solicit responses suggesting an urgent need for more laws and government action. Even the fairest of these surveys is no substitute for real-world experiments in which people make real choices, in real time, often with real money, and face many real trade-offs.

What this debate comes down to is the unarticulated trade-off between the benefits of receiving tailored (relevant!) ads and the costs of that tailoring. Yet, too often, policymakers and even the public seem oblivious to that trade-off.  There’s too much “assume-a-platform” thinking going on out there: CSM and their ilk imagine all these free online sites and services we and our children enjoy today just fall like manna from heaven—and will keep working no matter how they’re hamstrung.  Worse yet, discussions about “harms” take place at such a level of abstraction as to be almost meaningless.

For example, during Friday’s press conference announcing the poll results, Common Sense Media founder and CEO Jim Steyer pushed hard for aggressive Internet regulation to “protect privacy”—yet for all his adamance, he couldn’t identify a single clear harm demanding further government intervention. (He barely mentioned existing regulation, like the FTC’s enforcement of corporate promises or the Fair Credit Reporting Act, which restricts the use of personal data for credit decisions, where a real harm could occur to users.)

Steyer actually asserted—repeatedly—that regulation will not burden online operators, and blithely suggested that, in essence, if dot-com entrepreneurs are smart enough to build all these cool sites and services, they can also figure out how to craft or live with new rules for how the Internet economy should work.  Ah, yes… everything will be just fine and dandy once the regulatory wrecking ball comes and requires every online site that currently uses advertising—powered by data collection—to completely change the way they do business and find new business models that involve getting someone other than advertisers to pay for all that free stuff.  More on that Beltwayland fantasy in a minute!

First, however, CSM deserves some credit for at least asking respondents two survey questions that gets to the heart of our concern about trade-offs. Specifically, survey question #14 asked, ” Some social networks and search engines that offer online services for free say they can only do so by selling advertising tailored to user habits and interests. Do you believe this is true?”  Of course, that statement is obviously true: There’s no such thing as a free lunch.  Something has to pay for all theses services; that something is advertising and marketing techniques that are powered by data aggregation about users’ apparent interests. Regardless, CSM left the question open-ended, either becuase they don’t buy that notion or they wanted to suggest to respondents that it’s actually an open question (as if site operators are just lying about having to pay their bills somehow!)  Responses split almost perfectly:

Importantly, however, in the next question, CSM asked: ” Would you prefer to pay for services currently provided for free on search engines and social networking sites in lieu of having information about you sold to advertisers?”  Nearly half (45%) of all adults and, surprisingly, an even higher (51%) proportion of parents, said they would not prefer to pay for services but instead continue to allow data collection / advertising to fund online content and services.

Interestingly, CSM never mentions these important findings in their press release or online summary of the poll.  Instead, they play up survey results suggesting that plenty of people, especially parents, have general concerns about privacy. Well, of course they do!  That’s like asking if you have general concerns about the flu or (if you live in Florida) hurricanes. But, again, there has to be some context and some acknowledgment of the fact that the world is full of trade-offs and that regulation has consequences. Regrettably, but perhaps unsurprisingly, CSM downplays the questions in their survey that speak to this. It’s one of the rare instances of trade-offs even being mentioned in a privacy poll, probably because those who generally conduct privacy polls had political motivations:  They want federal privacy regulation and, therefore, they selectively ask only leading questions about generic privacy concerns that are always going to produce lop-sided results.

We applaud CSM for breaking with that unfortunate tradition—the polling equivalent of “stuffing the ballot box”—and at least asking people if they understand there’s a trade-off here and whether they’d be willing to pick up the full freight of what the online services and content they consume actually cost.  Of course, once CSM heard that, when faced with that stark choice, the majority of people would not want to pay, the organization decided to essentially bury that result and instead highlight the other “Do you love your mother?” sort of questions that produce predictable results precisely because they are consequence-free. (Perhaps they only included these questions because they know we’ve been so relentless in our criticism of previous polls for failing to ask any questions even approximating trade-offs?)

What’s even more concerning about the way CSM chose to play these poll result is the shameless scare tactics Jim Steyer used during the press conference. At one point, he compared these privacy concerns to “tainted meat” and unregulated meatpackers!  You know, because people are dying left and right from “consuming” unregulated web content. This analogy is nothing less than insulting to web entrepreneurs, those who use them, and the policymakers Steyer is grandstanding for.

The fantasy-land mentality continued when Steyer said CSM wants someone in the Internet industry to develop some sort of “eraser button” to wipe out portions of our online pasts. “We can’t tell you how to do that,” Steyer said, but the onus is on industry to do it—and he expects them to get on it immediately. Right… perhaps the Internet’s Director of Operations can issue all companies and consumers one of those Staples “EASY” buttons for their desks, except this one would just say “ERASE” and magically clean up our online pasts!  Again, this is consequence-free thinking at work and it is dangerous—especially to smaller website operators who just can’t absorb endless regulatory mandates without suffering profound consequences.

Speaking of scare tactics, it’s quite revealing that CSM chose to phrase Question #2 as follows: ” Of the following, which do you feel is the main reason you are concerned about children revealing personal information online?” And then they listed a few possible responses with the first being  “sexual predators.” Nothing like fanning the flames of moral panic by asking about child predation! CSM has certainly studied the literature closely enough to know how completely out of proportion this concern has been blown. Read the final report of the Harvard Berkman Center “Enhancing Child Safety” blue ribbon task force to get the definitive word on that.

But it’s equally interesting that, despite all the hand-wringing at Friday’s press conference about targeted marketing, only 4% of respondents to this poll felt product marketing was the primary concern relating to collection of information about children online.  Nonetheless, CSM is still demanding more regulation in the name of protecting kids from some amorphous corporate bogeyman. Complicating matters is the fact that, during the press conference, Jim Steyer said that for CSM, a “kid” is anyone under 18. This was consistent with comments that CSM submitted to the FTC in July as part of the agency’s review of the Children’s Online Privacy Protection Act (COPPA), CSM advocated not just expanded educational efforts, which we applaud, but also expanding COPPA’s age scope to cover all kids under 18 as well as opt-in mandates for the collection and use of any “personal information” or “behavioral marketing.”

Incidentally, during Friday’s press conference, a sharp audience member asked how, exactly, government or websites would go about differentiating kids from adults for purposes of expanded “kids’ privacy” regulation. Good question!—and one that Steyer promptly ignored. He went silent at that point, perhaps recognizing that CSM was wading into the unconstitutional waters of COPA-like age verification mandates for the Internet without the slightest clue of the real-world implementation of their proposals. FTC Chairman Jon Leibowitz  jumped in to suggest that it could be done because marketers already know how to track kids and have sophisticated techniques to figure out who is who and what age they are.  But that’s simply not true.

The reality, as we have noted here before many times [see 1, 2, 3, 4, 5, 6, 7] is that there is no easy way to verify the ages of kids online becuase they lack the sort of credentialing records (driver’s licenses, credit cards, tax records, home mortgages, work or military records, etc) that adults possess. Thus, if you say you want to verify kids’ ages online, what you are really saying is that you want to verify adults online.  Again, this gets us right back into the thorny COPA world which has already been litigated to the hilt and found unconstitutional many times over because of the free speech and privacy issues it raises to create the equivalent of an online “show-us-your-papers” regulatory regime.

We object to other CSM proposals, including their call for new laws and regulations that deny any ability to serve up targeted ads and opt-in mandates for geo-location and changes of personal information, and their call for “independent privacy ratings,” which seems to echo their old call for “universal ratings” for all media content.  But we haven’t seen all the details on those, so we’ll have to address them later.

What is clear, though, is that Common Sense Media is back on the regulatory warpath, again advocating comprehensive regulation of the Internet in the name of “protecting the children.”  We can certainly join hands with CSM in their call for more education on all these issues, and we can also live with the FTC holding companies to the promises or claims they make when it comes to the personal information they collect and what they do with it.  But what Common Sense Media is asking here is for the Internet to be re-engineered through a sweeping regulatory regime that could decimate the “free” and open Internet as we know it.  That’s what this battle is all about.

Additional Reading

• Joint CDT-PFF-EFF Comments on FTC’s COPPA Review & the Dangers of COPPA Expansion
• “Privacy Polls v. Real-World Trade-Offs” – by Berin Szoka
• “Comments at FTC Workshop Panel on Privacy Polls & Surveys” – by Adam Thierer
• “Troubling COPPA Filing by Common Sense Media” – by Adam Thierer
• “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech” – by Berin Szoka & Adam Thierer
• “Privacy Trade-Offs: How Further Regulation Could Diminish Consumer Choice, Raise Prices, Quash Digital Innovation & Curtail Free Speech” – by Berin Szoka, (Comments to the Federal Trade Commission at the Privacy Roundtables, Nov. 10, 2009)

As part of its excellent “Room for Debate” series, the New York Times has an interesting new online symposium up now asking, “Will Networks Go Wild, With No Decency Rules?”  It was in response to last week’s Second Circuit decision, which again slapped down an effort by the Federal Communications Commission to defend the agency’s indecency enforcement regime.  I was honored to be asked to contribute a short essay on the subject. Here are the other contributors and their essays.  Take the time to check them out:

• “The F.C.C.’s Policy Was a Mistake” – Michael K. Powell, a former chairman of the Federal Communications Commission
• “Where Is the Line?” – Christopher Rosen, television writer
• “Help Kids and Families” – Liz Perle, editor in chief at Common Sense Media
• “A Bad Idea From the Start” – Robert Thompson, Syracuse University
• “Put Parents in Control” – Adam Thierer, president, The Progress & Freedom Foundation
• “It’s the Violence!” – Kevin W. Saunders, professor of law, Michigan State University

I was particularly interested in former FCC’s Chairman Michael Powell’s admission that “The [FCC’s] fleeting expletive policy was a mistake,” and that “the real problem is the now-flawed constitutional foundation on which the law is built.” Powell goes on to argue that, “We cannot have one First Amendment for broadcasting and another one for every other medium. This vestige of a bygone era provides fertile ground for mischief — culture wars, political agenda and moral mandates. It’s high time for the high court to bring our laws into the 21st century.”

I wholeheartedly agree, and I wrote a lengthy law review article on just that topic back in 2007 entitled,“ Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.” If you find it too boring, just watch this video I made summarizing the key points, which I called “America’s First Amendment Twilight Zone.”

Common Sense Media (CSM) is a media “watchdog” group that provides a terrifically useful service to the public through independent reviews of popular media content (movies, music, TV, games, and more). As a parent, I find their service indispensable and, as a policy analyst, I have praised their rating system and their media literacy / digital citizenship programs again and again, including numerous endorsements in my special report on Parental Controls & Online Child Protection and other testimony and filings before Congress and federal regulatory agencies.

Thus, being such a big fan of CSM, I was quite dismayed to see the comments they just submitted to the Federal Trade Commission (FTC) as part of the agency’s review of the Children’s Online Privacy Protection Act (COPPA). They advocate not just expanded educational efforts, which are great, but also expanding COPPA’s age scope to cover all kids under 18 as well as opt-in mandates for the collection and use of any “personal information” or “behavioral marketing.”  For all the background on the law and the FTC’s resulting COPPA rule, see this beefy paper Berin Szoka and I authored last year and this testimony and follow-up submission Berin did for the Senate Commerce Committee. And then read the joint submission made by PFF, CDT, and EFF in the same FTC proceeding that CSM just filed in.

Sadly, it’s clear to me that Common Sense Media didn’t take anything we warned about in those papers or filings seriously—or perhaps that they just didn’t bother to read them very carefully, if at all. Their filing is a classic example of good intentions gone wrong. I understand that they want to take additional steps to protect children online, but they completely ignore the practical realities of COPPA expansion and its associated trade-offs:

1. CSM never clearly identifies or quantifies the supposed harm that requires such a significant expansion of Internet regulation. Why the need for a massive expansion of federal regulation in this area?  CSM never makes it clear. Of course, this is becoming old hat here in Washington. Just whisper the word “privacy” and people scream “the sky is falling” and start calling for regulation of all sorts. But are there real harms here? Are there corresponding benefits to be considered? Aren’t other values or principles at stake here. No answer from CSM.
2. CSM never stops to consider the profound free speech implications of their proposals. Don’t they realize that simply extending COPPA to cover older teens will require websites used by large numbers of adults to age verify all users? This raises the same First Amendment concerns about government interference with anonymous communication that caused the 1998 Child Online Protection Act (COPA) to be struck down by the courts as unconstitutional.
3. CSM doesn’t acknowledge that — in the name of protecting privacy – they are essentially demanding a massive amount of additional information be collected to facilitate the regulatory regime they would apparently endorse. Expanded age verification mandates would mean more information has to be collected about kids and their parents, but also about adults who have to prove they aren’t children!
4. CSM never acknowledges that COPPA covers any potential site or tool that allows sharing of personal information by children and that expansion of this regulatory regime in an era of widespread user-generated content, online gaming, texting, and other forms of digital interaction make “expanded verifiable parental consent” a formidable regulatory problem.
5. CSM is essentially treating older teens as if they have no speech rights and are utterly incapable of making decisions for themselves until the day they turn 18.  Never mind that most U.S. states set their age of consent at 16 or 17, for example.  In other words, these aren’t Dora and Diego fans we’re talking about here. These are people who will shortly be in college and eligible to vote and serve in our Armed Forces.
6. CSM never bothers exploring the profound economic impact their proposal will likely have on smaller websites that cater to kids & teens. If expanded regulation crowds out smaller start-ups, the resulting level of creativity and innovation in this market will suffer. Thus, COPPA expansion could lead to unnecessary industry consolidation as smaller operators are forced to sell to bigger player who can cover regulatory compliance costs.
7. CSM never bothers exploring the potential cost to consumers / parents. Expanding verifiable parental consent requirements will no doubt burden the creators or various sites and services, but those costs will ultimately be borne by the public when they are passed along in the form of a fee for services, many of which were previously free of charge.
8. Finally, and perhaps most surprisingly, CSM spends little time focusing on the many beneficial steps being taken by site operators today that make kids safer online. I have said it again and again and again here and elsewhere: If we assume that COPPA is the most important approach to keeping kids safe online, we are making a huge mistake. COPPA is probably one of the least important things that keeps kids safe online. It’s what sites do after kids get into their communities that is really important because—guess what!—kids are going to get in to social networking communities and other sites.  There are many important steps being taken by countless online sites and communities take to make sure they offer more safe and secure environments for kids. In particular, beyond basic parental controls, moderation and intervention efforts by site operators are increasing within social networking sites, virtual worlds, and many other sites to ensure that they offer such “well lit” neighborhoods. We should be encouraging a lot more of that and working to find new “oversight and intervention” methods to deal with problems when they pop up. Common Sense Media has done a lot of great work on this front and should have focused on how those methods could be improved instead of how the create a more cumbersome, intrusive, expensive, and ultimately unworkable age verification regulatory regime for the Internet.

And there are many, many other issues left unexplored by the CSM filing. They’ve simply called for expansion of a regulatory regime without any reference to these challenges, costs, and trade-offs. Again, good intentions can’t excuse sloppy, half-hearted policy analysis.

I’m really quite troubled by this filing and I hope my friends at Common Sense Media will take the time to take a second look at the paper Berin Szoka and I authored last year (“COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech”) as well as the CDT-EFF-PFF joint filing we just submitted to the FTC.  Regulation has consequences and in this case those consequences will be quite profound. CSM has utterly failed to acknowledge them in this filing.

In all my work on online child safety issues, I always try to stress how important education and media literacy efforts are. Indeed, technical parental control tools and methods, while important, should be viewed as just one part of a more holistic approach to encouraging digital literacy and digital citizenship.  In recent years, many scholars and child development experts such as Nancy Willard of the Center for Safe and Responsible Internet Use, Anne Collier and Larry Magid of ConnectSafely.org, Marsali Hancock of iKeepSafe, Common Sense Media, the Family Online Safety Institute, and many others have worked to expand traditional education and media literacy strategies to place the notion of digital citizenship at the core of their lessons and recommendations.

What does it mean? Anne Collier defines digital citizenship as “Critical thinking and ethical choices about the content and impact on oneself, others, and one’s community of what one sees, says, and produces with media, devices, and technologies.” And Common Sense Media defines digital literacy and digital citizenship as follows:

Digital Literacy programs are an essential element of media education and involve basic learning tools and a curriculum in critical thinking and creativity. Digital Citizenship means that kids appreciate their responsibility for their content as well as their actions when using the Internet, cell phones, and other digital media. All of us need to develop and practice safe, legal, and ethical behaviors in the digital media age. Digital Citizenship programs involve educational tools and a basic curriculum for kids, parents, and teachers.

Stephen Balkam, CEO of the Family Online Safety Institute, had an excellent essay in The Huffington Post yesterday on “21^st Century Citizenship,” that did a fine job of explaining these concepts in practical terms:

While there is a recognition that there must be a base-line of safety—using filters for younger kids and monitoring and privacy settings for the older ones—the emphasis is now placed on education, media literacy and a new kind of civics. It’s time for kids of all ages to understand and value the rights of free speech and assembly (i.e., connecting through social networking and other means) as well as an expectation of privacy and safety. And with those rights, go an important range of responsibilities and duties. These include the need to respect others views, even if they disagree with them, to adhere to terms of service (however lengthy and obtuse) and the rules regarding fair use, flaming, accessing or uploading porn, and so on. Just as we teach our kids to help at the scene of an accident, or to report a crime and to get involved in their local community, so we need to encourage similar behavior online. To report abusive postings, to alert a grownup or the service provider of inappropriate content, to not pile on when a kid is being cyberbullied, to be part of the solution and not the problem. We need to use what we’ve learned about social norms to align kids and ourselves with the positive examples of responsible behavior, rather than be transfixed and drawn towards the portrayals of the worst of the web. It may be true that one in five kids have been involved in sexting, but that means the vast majority exercise good judgment and make wise choices online. The social norms field is ripe with possibilities and guidance in how to foster good digital citizenship.

That’s 100% correct. This approach must be at the center of child safety debates going forward. As Nancy Willard notes, digital citizens:

1. Understand the risks: They know how to avoid getting into risk, detect if they are at risk, and respond effectively, including asking for help.
2. Are responsible and ethical: They do not harm others, and they respect the privacy and property of others.
3. Pay attention to the well-being of others: They make sure their friends and others are safe, and they report concerns to an appropriate adult or site.
4. Promote online civility and respect.

Only by teaching our kids to be good cyber-citizens can we ensure they are prepared for life in an age of information abundance.  Talk to your kids, people!  Teach them well.

Interesting lunchtime forum taking place this coming Monday, Nov. 2nd about “Media, Kids, and The First Amendment.”  It’s being co-hosted by Georgetown Law Center and Common Sense Media. Here’s the event description:

The rapidly changing world of digital media – including TV, videogames, the Internet and mobile devices – creates many opportunities for children, but also presents potential dangers, from cyber-bullying to exposure to inappropriate content. The Supreme Court has remanded FCC v. Fox Television back to the Third Circuit for further consideration. The Senate recently held a hearing on the Children’s Television Act in the digital age. Is new legislation or regulation imminent?

Panelists include:

• Daniel Brenner, Partner, Hogan and Hartson
• Angela Campbell, Professor, Georgetown Law Center
• Kim Matthews, Attorney Advisor, Media Bureau, Policy Division, Federal Communications Commission
• Douglas Gansler, Attorney General of Maryland
• Jim Steyer, CEO & Founder, Common Sense Media [moderator]

Location is the Gewirz Student Center, 120 F Street, NW, 12th Floor. Start time = 12:00 Noon.

It’s an open event but those interested should RSVP via email to: rsvp2@law.georgetown.edustrong>rsvp2@law.georgetown.edu</strong and indicate that they are replying for the Nov 2nd event.   I have already told my friends at Common Sense Media I will be there to cause some trouble! (and get a free lunch, of course).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I’ve been blathering on about this week’s big Supreme Court decision in FCC v. Fox, [See Parts 1, 2, 3, 4, 5], so I thought I would just wrap this series of essays up with a collection of other articles and views on the decision in case readers are looking for alternative perspectives:

Mainstream Media Stories

• Associated Press
• Reuters
• New York Times (+ more analysis)
• Washington Post
• Wall Street Journal
• Legal Times
• TV Week
• Variety
• Kansas City Star
• USA Today
• Ars Technica

Conservative, Religious, & “Family” Groups

• Parents Television Council
• Common Sense Media
• Concerned Women for America
• Town Hall.com

Free Speech Advocates or Other Views

• The SCOTUS Blog
• Free Expression Policy Project (Marjorie Heins)
• ACLU
• Media Access Project (Andy Schwartzman)
• Center for Creative Voices in Media (Jonathan Rintels)
• First Amendment Center (David Hudson)
• Free State Foundation (Randy May)
• Michael Dorf
• Marc Randazza
• Reason’s Hit and Run
• Volokh Conspiracy (Eugene Volokh)
• TechDirt

Today’s USA Today features a debate between the editors and me on the question of the impact media has on children and what should be done about it. Their editorial argues that “Today’s mass media penetrate deeply and quietly, inflicting real damage on young children, an increasing body of research shows.” Specifically, they are referring to a new study commissioned by Common Sense Media (CSM), which claims that a review of 173 studies shows “that a strong correlation exists between greater exposure and adverse health outcomes.”

In my response entitled “Don’t Scapegoat Media,” which appears in its entirety down below the fold, I argue that “Media have long been a convenient scapegoat for the woes of the world,” and that we must be careful not to assume correlation equals causation when surveying the impact of media on kids. After all, I argue, “how do [those studies] account for the other variables that influence youth development, including broken homes, bad parents, socioeconomic status, troubled peer relations, poor schools and so on? And how is media exposure weighted relative to these other influences? Is a beer ad really as much of a negative influence as an alcoholic parent?” Again, read my entire response below. [Of course, even if one assumes some media has an impact on some kids, there are plenty of ways for parents and guardians to take control over the media in their lives, as I have shown in my big book on the subject.]

I was also quoted in this Washington Post article about the new CSM study on Tuesday.

Don’t Scapegoat Media by Adam Thierer 12/4/08

USA Today

Media have long been a convenient scapegoat for the woes of the world. In particular, fears about the influence media might have on our children have often prompted calls for “crackdowns” on speech and expression.

Typically, these fears fade as one generation’s media boogeyman becomes another’s treasured art form. That’s not to say media don’t have an impact on some children. Clearly, media are among many factors that influence culture and behavior.

But what about those other influences? Some studies summarized in the new Common Sense Media (CSM) report suggest a potential link between media exposure and certain social pathologies. But how do they account for the other variables that influence youth development, including broken homes, bad parents, socioeconomic status, troubled peer relations, poor schools and so on? And how is media exposure weighted relative to these other influences? Is a beer ad really as much of a negative influence as an alcoholic parent?

That’s why it’s important to recall a fundamental tenet of all social sciences: Correlation does not necessarily equal causation. Human behavior is complicated and quite difficult to measure “scientifically.” Just defining “media exposure” and “negative health outcomes” is tricky enough; identifying root causes is even more challenging.

The sky hasn’t fallen the way some media critics feared. While childhood obesity is a growing problem, it’s important not to lose sight of the impressive gains we’ve made in other areas, such as falling juvenile violence, teen pregnancy, and youth drug and alcohol abuse. Moreover, even if some media negatively influence some children, that must be balanced against the many ways media inspire and empower.

The authors of the CSM survey are to be commended, however, for avoiding regulatory recommendations and instead focusing on the sensible steps parents, schools, industry and government can take to educate kids and empower families to take control over the media in their lives. More information, increased media options and better mentoring of our children are the prudent approaches.

Earlier this year, I mentioned an outstanding book that John Palfrey of the Berkman Center for Internet & Society at Harvard Law School co-edited entitled Access Denied: The Practice and Policy of Global Internet Filtering.  It’s an excellent resource for anyone studying the methods governments are (unfortunately) using to stifle online expression across the globe.  It’s one of the most important technology policy books of the year.

Well, it looks like John Palfrey will have a second title on this year’s “Best Tech Books” list.  I’ve just finished his new book with his Berkman Center colleague Urs Gasser, Born Digital: Understanding the First Generation of Digital Natives, and it is definitely worthy of your attention. In my book review posted today on the City Journal’s website, I argue that “Palfrey and Gasser’s fine early history of this generation serves as a starting point for any conversation about how to mentor the children of the Web.”  It’s a comprehensive and very even-handed discussion about a variety of concerns or Internet pathologies, including: online safety, personal privacy, copyright piracy, offensive content, classroom learning, and much more.

My City Journal review is down below, but in coming weeks I will be posting some additional thoughts about some specific things in the book worthy of more attention (including a few things I disagreed with).  Overall, I’d say Born Digital is a close runner-up in the race for “Tech Book of the Year,” closely trailing Jonathan Zittrain’s Future of the Internet and How to Stop It (which I have reviewed multiple times) and Nick Carr’s The Big Switch.  But I found far more to agree with in Born Digital than I did in those two books.  Highly recommended.

Understanding Our Digital Kids A new book offers a guide for mentoring the children of the Web.

a book review by Adam D. Thierer of

Born Digital: Understanding the First Generation of Digital Natives, by John Palfrey and Urs Gasser (Basic Books, 288 pp., $25.95)

City Journal 10 October 2008

You can’t blame parents today if they think that their children have been assimilated into the Borg or are living in the Matrix. Members of the “always on, always connected” generation have surrounded themselves with digital devices and networks and colonized cyberspace in the process. Meanwhile, back in “meatspace,” many Analog Era parents scratch their heads, trying to make sense of these momentous changes and what they mean for their kids and society.

Answers are available in Born Digital: Understanding the First Generation of Digital Natives, by John Palfrey and Urs Gasser, both of the Berkman Center for Internet & Society at Harvard Law School. Each chapter in the book addresses a different parental concern or Internet pathology: online safety, personal privacy, copyright piracy, offensive content, classroom learning, and more. Palfrey and Gasser aim “to separate what we need to worry about from what’s not so scary, (and) what we ought to resist from what we ought to embrace.”

The authors offer a balanced treatment of these issues—almost to a fault, in that they occasionally fail to develop fully their own positions. Of course, as they repeatedly—and correctly—note, often these thorny questions have no easy answers. “The hard problem,” they point out, “is how to balance caution with encouragement: How do we take effective steps to protect our children, as well as the interests of others, while allowing those same kids enough room to figure things out on their own?”

If there is a single solution, they argue, it’s education. The authors want parents, educators, and lawmakers to do more to engage the digital generation in a dialogue, instead of leaving it to fend for itself. “The traditional values and common sense that have served us well in the past will be relevant in this new world, too,” they maintain. But Palfrey and Gasser don’t rule out additional tools and methods, including technical controls, industry self-regulation, social norms, and even government action.

Consider online privacy concerns. “Never before has so much information about average citizens been so easily accessible to so many,” they note—and particularly when it comes to our kids. Despite the growing amount of online information about our kids (“digital dossiers”) and other potential threats to privacy, Palfrey and Gasser counsel prudence: “The answer . . . is not to avoid the networked publics in which so many people—especially Digital Natives—are leading their lives. Instead, we need to develop more nuanced ways to navigate these new publics.” Though “there is no single, simple answer,” they argue that “parents, peers, teachers, and mentors [all] have a role to play” to encourage youngsters to protect their information and identities. Most importantly, the digital natives must learn to use common sense when sharing information online.

The authors advocate the same reasoned approach when it comes to online child safety. The safety risks have often been greatly overstated—or at least largely misunderstood—by parents and policymakers. “The data do not suggest that the world is a more dangerous place for young people” because of the Internet, the authors contend. Most of the problems we see online today—cyber-bullying, for example—are really just old problems playing out on new platforms. “Involved parenting” and “open and honest conversations” are the most sensible responses, but intervention strategies by others—including kids’ peers—may be another part of the solution. Parental empowerment tools and industry self-regulation can help, too.

Palfrey and Gasser are open to government playing a role in some cases. They believe “governments should restrict the production and dissemination of certain types of violent content in combination with instituting mandatory, government-based ratings of these materials.” They also call for greater liability for online service providers and social networking sites to encourage them to crack down on potential dangers to children. Given their vagueness, however, both proposals would likely smash into serious First Amendment roadblocks that the authors fail to explore fully.

Palfrey and Gasser view government action less favorably when it comes to combating copyright piracy. “Creativity is the upside of this brave new world of digital media,” they suggest, but “the downside is law-breaking. The vast majority of Digital Natives are currently breaking copyright laws on a regular basis.” But what should we do about piracy? Palfrey and Gasser sidestep some of the underlying ethical issues and bluntly declare that “the goal should be for copyright holders, technologists, and their customers to exchange royalty checks with one another instead of legal complaints.” Yes, but what happens when many refuse to pay even one penny for copyrighted content, as often happens today? Education can encourage youngsters to obey the law, but difficult questions remain about how to deal with those who won’t play by the rules.

In chapters debating the Internet’s impact on learning and culture, the authors worry about shortening attention spans and the rise of a “cut-and-paste culture,” due to the immediate gratification provided by Google searches, Wikipedia, blogs, and instant messaging. On the other hand, they rightly underscore how “Digital Natives are quite sophisticated in the ways that they gather information” and are learning “sophisticated information-gathering and information-processing skills,” while also creating content and sharing information with peers in ways unimaginable just a generation ago.

It will be fascinating to see what impact these changes have on digital natives as they get older and become parents themselves. Regardless, Palfrey and Gasser’s fine early history of this generation serves as a starting point for any conversation about how to mentor the children of the Web.

Update Feb. 2009: I hosted a TLF podcast featuring Prof. Palfrey and discussed this book with him. Listen here.

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

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

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

A few days ago I posted an open letter to New York Gov. David Patterson about a measure that recently passed through the New York legislature and was awaiting his signature. The bill proposes a new regulatory regime for video games that would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry. Unfortunately—but quite unsurprisingly—Gov. Patterson signed the bill last night. And so I am certain that another legal battle will ensue regarding the constitutionality of the measure, and it will likely be struck down like every other measure on this front because it violates the First Amendment. Regardless, let’s talk a little more about what animates this specific legislative effort, because I think it is very important and foreshadows the heated debate to come over video games and all media in coming years.

The New York measure is notable in that, unlike most of the other state or local measures that had been stuck down in recent years that proposed penalties for the sale of games to youngsters which were labeled by the ESRB to be intended for an older audience, it simply proposed more “oversight” of the ratings process and parental control technologies by the state. Specifically, it mandated that all games be rated and that all consoles contain screening controls. The response to that proposal has generally been: “So what?” After all, all video games are rated already and all game consoles contain parental controls. The measure also mandated a 16-member oversight board to monitor the industry and this process. Again, that proposal was not regarded by many as a serious threat to the video games or free speech.

But I fear that many are missing the big picture here. The New York bill is actually far more important that many people suspect because of what it foreshadows: A day when politicians will claim that we can make rating systems more “scientific” by putting public health bureaucrats or university social scientists in charge of them. Indeed, last night on Bloomberg TV, this became the focus of a debate between me and Dr. Michael Rich, Director of the Center for Media and Child Health at the Harvard Medical School. After you watch the clip, I’ll have much more to say about this issue down below the fold.

As you heard in the clip, Dr. Rich favors a greater role for “science” and social scientists in the video game rating and labeling process. But let’s explore what that might mean in practice.

Over the past decade, I have heard many critics make the argument that media rating and labeling systems should be centralized in the hands of the government, some academic elites, a private (non-industry affiliated) rating organization, or some combination of all of the above. These critics often give lip service to private, voluntary rating systems but they then turn around and advocate that the entire process be run by people (usually closely resembling themselves!) who would somehow rate media according to more “scientific” criteria / variables.

The problem here is that media content is art, and art is fundamentally subjective. It’s not like there is some sort of Periodic Table of Media Elements that tells us what makes for good vs. bad art. Media ratings and labels, therefore, will always be based on judgments made by humans who all have somewhat different values. Those doing the rating are being asked to evaluate artistic expression and assign labels to it that provide the rest of us with some rough proxies about what is in that particular piece of art, or what age group should (or should not) be consuming it. In a sense, therefore, all rating systems will be inherently “flawed” since humans have different perspectives and values that they will use to label or classify content.

Thus, even if a bunch of social scientists at Harvard were running the show, the media rating and content-labeling process will never be an exact science; there will always be something fundamentally subjective about it. Incidentally, exactly which “social scientists” would get a say in the process? Psychologists? Sociologists? Political scientists? Criminologists? Hey, what about art historians! I can almost see a joke in the making here: “How many Harvard social scientists does it take to rate a video game?”

But Dr. Rich and others like him would likely argue that some forms of media or art have unique influences on the development of the mind—especially the minds of children. They would argue, for example, that exposure to certain forms of violent media content will breed aggressive behavior in youth, or at least make them more desensitized and fearful of the world around them.

For the sake of brevity, I am not going to go into my typical long-winded discussion here about “media effects” vs. “catharsis effect.” Instead I will just reference the latest of my many essays on the topic (“Why hasn’t violent media turned us into a nation of killers?”) and I also recommend that you read my review of the excellent new book, Grand Theft Childhood: The Surprising Truth About Violent Video Games and What Parents Can Do,” by Lawrence Kutner, PhD, and Cheryl K. Olson, ScD, cofounders and directors of the Harvard Medical School Center for Mental Health and Media. (As you will see when you read the book, apparently not everyone at Harvard agrees with Dr. Rich! That also makes one wonder how much actual consensus there would be in the scientific community about the ratings and labels they would be imposing on artistic expression.)

OK, so let’s just imagine that those social scientists who espouse “monkey see, monkey do” theories of media effects somehow get a say in rating and labeling video games. Think about what that would mean in practice. Imagine how long it would take a game like “Halo,” “Gears of War,” or “Grand Theft Auto” to get through that review process. And imagine what the warning label on the box would look like once they were done! They’d probably affix a 10-page memo to each game carton and then a poison (skull-and-crossbones) logo for good measure. Or perhaps the label would come in form of a Surgeon General’s warning about the product being hazardous to one’s (mental) health?

In the end, the whole system would become an unworkable farce if mandated by government. Nothing would be getting rated and to market in a timely way. Game developers would be in open revolt against it. And industry lawsuits would be flying.

More importantly, few people would likely use it. Many media critics seem to forget that there is trade-off between convenience and comprehensiveness in terms of rating and labeling systems. As Kutner and Olson note in their book: “The more complicated a system becomes, the less likely busy parents are to understand it and to actually use it.” We have to be careful not to upset this balance. In my opinion, the current ESRB game rating system pushes the labeling process just about as far as it can go on the comprehensiveness scale, but does so using easy-to-comprehend ratings (7 of them) and content descriptors (over 30 of them). When media critics and social scientists say they want to make the system even more “comprehensive” and “scientific,” therefore, I really have to wonder if they have thought through the practical implications of such a move. Exactly how many more ratings and labels are we talking about? Exactly how much more detailed could it be than the ESRB’s existing system, which already has 12 different content descriptors for violent content alone (from “cartoon violence” to “sexual violence” and everything in between).

Another point: The argument that government or “ratings by social scientists” would provide more objective ratings is also undermined by the grim reality of special-interest politics. Government officials or government-appointed commissions would be more susceptible to various interest group pressures as they were repeatedly lobbied to change ratings or restrict content based on widely varying objectives and values. Inevitably, as has been the case with the broadcast indecency complaint process in recent years, a handful of particularly vociferous groups could gain undue influence over content decisions. That possible outcome raises what the Supreme Court has referred to as the “heckler’s veto” problem since a vocal minority’s preferences could trump those of the public at large.

Now let me be perfectly clear about one thing: I have absolutely no problem whatsoever with folks like Dr. Rich and his colleagues devising some sort of “scientific” rating or labeling scheme for video games and other forms media content. But the fundamental question in this debate is: should such a system should be the law of the land?

In my book on Parental Controls and Online Child Protection, I spend a great deal of time in Chapter 2 talking about the importance of third-party ratings and pressure and I heap a lot of praise on the various independent, third-party content rating and labeling systems out there today. In particular, my wife and I absolute love Common Sense Media and rely on its ratings every week when we are consider what media to allow our kids to consume in our home. It’s a great system that is highly informative; and the feedback from average parents and kids on the site is very helpful too. Other great 3rd party rating and labeling services just for video games include: What They Play, Gamer Dad, and Children’s Technology Review, all of which provide detailed video game reviews and information about the specific types of content that kids will see or hear in a game. [Incidentally, the ESRB has a section on its webpage that highlights all these independent sites.]

So here’s the question for Dr. Rich and the folks in the social science community: Why not just create your own “shadow” ratings process or collaborate with these other organizations to serve a worthy “watchdog” role over the existing rating and labeling process? That’s the win-win solution here.

It would be a huge mistake to throw out the existing ESRB system. It is working very effectively and it is already widely recognized by the vast majority of parents. Surveys by Peter D. Hart Research Associates reveal that 89% of American parents of children who play video games are aware of the ESRB ratings and that 85% of them consult the ratings regularly when buying games for their families. That’s pretty impressive considering how young the ESRB rating system is.

Moreover, let’s not forget that every game console and computer system on the market today is geared to read the ESRB ratings metadata (digital tags) that are embedded in every game shipped to market. That’s how the parental controls are enabled. Should we toss all that work out the window and just start from scratch? I think that would be a huge mistake.

Again, there is nothing stopping Dr. Rich and his fellow social scientists from crafting their own system. In fact, I believe I speak for many parents when I say we would welcome it. But mandating it and asking that it serve as a replacement for the existing ratings and console controls is an completely different issue. It’s a non-starter in my opinion.

Now that the New York bill has passed, however, the door is open for this sort of proposal to see the light of day. If the measure is not struck down, watch to see who is appointed to the 16-member advisory committee and listen to hear which way they are going. I bet it ends up being something along the lines of what I have suggested above.

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

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

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

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

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

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

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