The Treasury Department today announced that it would grant the State Department’s December request (see the Iran letter here) for a waiver from U.S. embargoes that would allow Iranians, Sudanese and Cubanese to download “free mass market software … necessary for the exchange of personal communications and/or sharing of information over the internet such as instant messaging, chat and email, and social networking.”

I’m delighted to see that the Treasury Department is implementing Secretary Clinton’s pledge to make it easier for citizens of undemocratic regimes to use Internet communications tools like e-mail and social networking services offered by US companies (which Adam discussed here). It has been no small tragedy of mindless bureaucracy that our sanctions on these countries have actually hampered communications and collaboration by dissidents—without doing anything to punish oppressive regimes. So today’s announcement is a great victory for Internet freedom and will go a long way to bringing the kind of free expression we take for granted in America to countries like Iran, Sudan and Cuba.

But I’m at a loss to explain why the Treasury Department’s waiver is limited to free software. The U.S. has long objected when other countries privilege one model of software development over another—and rightly so: Government should remain neutral as between open-source and closed-source, and between free and paid models. This “techno-agnosticism” for government is a core principle of cyber-libertarianism: Let markets work out the right mix of these competing models through user choice!

Why should we allow dissidents to download free “Web 2.0” software but not paid ones? Not all mass-market tools dissidents would find useful are free. Many “freemium” apps, such as Twitter client software, require purchase to get full functionality, sometimes including privacy and security features that are especially useful for dissidents. To take a very small example that’s hugely important to me as a user, Twitter is really only useful on my Android mobile phone because I run the Twidroid client. But the free version doesn’t support multiple accounts or lists, which are essential functions for a serious Tweeter. The Pro version costs just $4.89—but if I lived in Iran, U.S. sanctions would prevent me from buying this software. More generally, we just don’t know what kind of innovative apps or services might be developed that would be useful to dissidents, so why foreclose the possibility of supporting them through very small purchases?

If Treasury is worried about creating a loophole that could allow evasion of U.S. sanctions, surely there are better ways to prevent such abuse than simply continuing to ban even small software purchases, especially since the purchase price for freemium apps is often just a few dollars. Or the U.S. Government could even negotiate a blanket license for all downloads from embargoed countries with software developers to ensure that our export controls do not deny dissidents the best tools available.

The practictioners at Steptoe & Johnson asked some good questions about this proposal back in December when State sent their request to Treasury.

Lots of good things in The Washington Post today following up on U.S. Secretary of State Hillary Clinton’s historic address last week about the importance of global Internet freedom. First, The Post has published a powerful supporting statement from Sweden’s Minister of Foreign Affairs, Carl Bildt, entitled, “Tear Down These Virtual Walls.” Bildt notes that:

Two decades ago a wall made of concrete, built to divide the free and unfree, was torn down. Today it is the freedom of cyberspace that is under threat from regimes as keen as dictatorships past to control and limit the possibilities of their citizens. They are trying to build firewalls against freedom.  At the end of the day, I am convinced they are fighting a losing battle — that cyber walls are as certain to fall as the walls of concrete once did.

He then goes on to argue that, following Secretary Clinton’s address last week, “We should now forge a new transatlantic partnership for protecting and promoting the freedoms of cyberspace. Together, we should call for all these walls to be torn down.” He continues:

Much like the way the rule of the law is critical to protecting the freedoms we enjoy as citizens in our societies, and international law protects the peace between our nations, we must seek to shape the rules that will protect the rights and the freedom of cyberspace.

Importantly, The Washington Post itself also editorialized today about “The Internet War.” The Post rightly noted that Sec. Clinton’s speech was hugely important because she made it abundantly clear, as I noted here in my essay last week, that the U.S. will now make these issues part of future diplomatic negotiating efforts. As the Post argued:

Ms. Clinton made it admirably clear that abusers such as China will no longer get a free pass in U.S. public diplomacy or in international forums. …  Far better that the United States raise issues of Internet freedom, discrimination against U.S. companies and cyberwar stemming from China directly and openly with the Communist leadership than allow Beijing to poison and abuse the Internet without paying a price.

Finally, Post tech policy columnist Cecilia Kang has an interesting article on the Post Tech blog about how “Technologists Agree with Clinton, Say Internet Freedom Wins in Long Run.”  (I sure hope so!) She cites the always-interesting Clay Shirky, who argues that countries that have a censorship strategy “are suffering from a technological auto-immune disease… They are only delaying the spread of media and attacking their own infrastructure.”  Too true.  Anyway, kudos to The Washington Post for rightly giving these important issues the coverage they deserve.

This morning at the Newseum in Washington, DC, U.S. Secretary of State Hillary Rodham Clinton delivered remarks on Internet freedom and the future of global free speech and expression. [Transcript is here + video.] It will go down as a historic speech in the field of Internet policy since she drew a bold line in the cyber-sand regarding exactly where the United States stands on global online freedom. Clinton’s answer was unequivocal: “Both the American people and nations that censor the Internet should understand that our government is committed to helping promote Internet freedom.” “The Internet can serve as a great equalizer,” she argued. “By providing people with access to knowledge and potential markets, networks can create opportunities where none exist.”

Unfortunately, however, “the same networks that help organize movements for freedom… can also be hijacked by governments to crush dissent and deny human rights.”  Echoing Winston Churchill’s famous “iron curtain” speech, Sec. Clinton argued that “With the spread of these restrictive practices, a new information curtain is descending across much of the world.”  She noted that virtual walls are replacing traditional walls in many nations as repressive regimes seek to squash the liberties of their citizenry.  That’s why the Administration’s bold stand in favor of online freedom is so essential.

Importantly, Sec. Clinton made it clear that the Obama Administration is ready to commit significant resources to this effort. She said that, over the next year, the State Department plans to work with others to establish a standing effort to promote technology and will invite technologists to help advance the cause through a new “innovation competition” that will promote circumvention technologies and other technologies of freedom. Sec. Clinton also challenged private companies to stand up to censorship globally and challenge foreign governments when they demand controls on the free flow of information or digital technology.

That is particularly important because Secretary Clinton’s speech comes on the heels of the recent news that Google and at least 30 other Internet companies were the victims of cyberattacks in China, which raises profound questions about the future of online freedom and cybersecurity. Sec. Clinton’s remarks will make it clear to online operators that the U.S. government stands prepared to back them up when they challenge the censorial policies of repressive foreign regimes.

It’s also worth noting that, back in October, Secretary Clinton took a bold stand on global religious defamation policies, which are becoming a growing international concern from a free speech perspective. I praised her for that speech here and noted how important it was that Administration officials put issues such as freedom of religious worship and freedom of speech and expression front and center in future foreign diplomacy efforts. With today’s speech, Sec. Clinton and the Obama Administration have again risen to that challenge by making it clear that these issues will now be part of future diplomatic efforts and discussions.

At one point she joked that somewhere in the world a foreign government official was trying to censor her speech as she delivered it! But she’s right: Plenty of foreign government are still aggressively attempting to censor the Net and to repress digital technologies every second of the day. To put things in perspective, just yesterday, the OpenNet Initiative (ONI) reported that more than half a billion Internet users are being filtered worldwide. And if you want a country-by-country synopsis of just how bad things are, check out the amazing report, Access Denied: The Practice and Policy of Global Internet Filtering, which is compiled by several scholars involved in the ONI project.

To understand the profound (and somewhat ironical) historical significance of Sec. Clinton’s speech today, you need to remember that less than 15 years ago in this country we had a heated debate over whether American citizens should even be allowed to use encryption technology, or if the government should “hold the keys” to such technologies. Luckily, the “Clipper Chip” wars ended when Hillary’s husband and his Administration basically gave up in its efforts to pursue it further. Moreover, I can’t help but recall what Mrs. Clinton said after the White House sex scandal erupted back in 1998 and the details spread rapidly across the Internet: “We are all going to have to rethink how we deal with [the Internet], because there are all these competing values,” she said. “Without any kind of editing function or gatekeeping function, what does it mean to have the right to defend your reputation?”  It seems like Mrs. Clinton has come a long way, so much so that she is now defending technologies — and is apparently willing to even subsidize technologies — that will allow citizens to evade “gatekeepers” of all sorts.

I also appreciated Sec. Clinton’s quip that “once you’re on the internet, you don’t need to be a tycoon or a rock star to have a huge impact on society.”  She repeatedly argued in her speech that the Internet has empowered every man, woman, and child to be heard and to make a difference in this world.  Amen.  But those opportunities for each of us to make a difference can only be realized if governments worldwide are willing to let them happen. I’ve always generally agreed with John Gilmore’s famous quip that “the Net interprets censorship as damage and routes around it.”  Nonetheless, I’m not a quixotic utopian when it comes to these things. I’m enough of a realist to understand that if governments put enough effort into the task, they can quash networks and silence a great deal of expression.  However, it’s a far more difficult undertaking today than it was in the past. The sheer volume and scope of online activity alone makes it an enormous undertaking.

Could we be on the verge of “the end of censorship” as I have wondered here before? Probably not any time soon, but thanks to the bold vision and steps that Secretary Clinton and Obama Administration announced today, we are a little bit closer.

Additional Reading / Listening:

• an NPR report about the issue this morning featuring Alec Ross, Sec. Clinton’s Senior Advisor for Innovation at the U.S. Department of State
• 21st Century Statecraft – Diplomacy in the Age of Facebook and Twitter – also w/ Alec Ross
• Freedom on the Net: A Global Assessment of Internet and Digital Media (Freedom House Publication)
• 2009 Report on International Religious Freedom
• Global Network Initiative Statement on U.S. Secretary of State Clinton’s Address on Internet Freedom
• Larry Magid (CNet.com) podcast on the speech
• thoughts from Craig Mundie, Chief Research and Strategy Officer at Microsoft
• more about the speech from New York Times, Wall Street Journal, Washington Post, Reuters, Ars Technica, Huffington Post,

Well, I don’t often get a chance to sing the praises of Hillary Clinton, so let me take the opportunity to loudly applaud her stand on religious defamation policies, which are becoming a growing international concern. According to The Washington Post, while unveiling the State Department’s 2009 Report on International Religious Freedom:

Secretary of State Hillary Rodham Clinton criticized on Monday an attempt by Islamic countries to prohibit defamation of religions, saying such policies would restrict free speech. … While unnamed in Clinton’s speech, the Organization of the Islamic Conference, a group of 56 Islamic nations, has been pushing hard for the U.N. Human Rights Council to adopt resolutions that broadly bar the defamation of religion. The effort has raised concerns that such resolutions could be used to justify crackdowns on free speech in Muslim countries.

Here’s specifically what Secretary Clinton had to say:

some claim that the best way to protect the freedom of religion is to implement so-called anti-defamation policies that would restrict freedom of expression and the freedom of religion. I strongly disagree. The United States will always seek to counter negative stereotypes of individuals based on their religion and will stand against discrimination and persecution.  But an individual’s ability to practice his or her religion has no bearing on others’ freedom of speech. The protection of speech about religion is particularly important since persons of different faiths will inevitably hold divergent views on religious questions. These differences should be met with tolerance, not with the suppression of discourse.

Quite right.  Thank you, Secretary Clinton, for this bold stand.  Freedom of religious worship and expression — including the criticism of religion — is essential.  Now, can we talk about your old positions on video game regulation?!

Caroline Kennedy has abruptly dropped her bid for Hillary Clinton’s Senate seat.  Her father, of course, probably ties with Andrew Mellon and Ronald Reagan as one of the greatest supply-side tax-cutters of all time.  The economic boom JFK unleashed probably makes up for whatever damage—personal or national—done by the Kennedy clan over the years.  

But whatever one thinks of Caroline in particular or the Kennedys in general, her departure from the “race” to succeed Clinton may go down in history as a catastrophe for Internet freedom, since it likely means that NY Attorney General Andrew Cuomo will take the seat.  

Cuomo has cast himself as a hero fighting to protect children by strong-arming ISPs into shutting down Usenets, as Ryan has explained.  Jim correctly points out the “shake down” nature of Cuomo’s operation.  And Adam has explained that this is all part of a broader assault on online free speech.  While few are willing to discuss this taboo subject, it’s fair to ask whether the “solutions” Cuomo are really the most effective way to deal with the scourge of child pornography. 

I’ll bet good money that if Cuomo makes it into the Senate, he’ll continue this fight on a broader scale—perhaps by pushing for legislation to mandate network-level filtering a la Cleanfeed.

Update: Gov. Paterson has decided to appoint Rep. Kirsten Gillibrand to this seat rather than Cuomo. That’s the good news.  The bad news is that this bully is still Attorney General of the Empire State.  I have no doubt he’ll continue his war on free speech in his current position.

Tim Lee has been taking some heat here from Richard Bennett and Steve Schultze about various aspects of his new Net neutrality paper. I haven’t had much time this week to jump into these debates, but I did want to mention one important portion of Tim’s paper that is being overlooked. Specifically, I like the way Tim took head-on some of the silly free speech arguments being put forth as a rationale for net neutrality regulation. As Tim notes in the introduction of the paper:

Concerns that network owners will undermine free speech online are particularly misguided. Network owners have neither the technology nor the manpower to effectively filter online content based on the viewpoints being expressed, nor do profit-making businesses have any real incentive to do so. Should a network owner be foolish enough to attempt large-scale censorship of its customers, it would not only fail to suppress the disfavored speech, but the network would actually increase the visibility of the content as the effort at censorship attracted additional coverage of the material being censored.

I think that’s exactly right and, later in his paper (between pgs 22-3), Tim nicely elaborates about the “Herculean task” associated with any attempt by a broadband provider to “manipulate human communication.” Not only is it true, as Tim argues, that “no widescale manipulation would go unnoticed for very long,” but he is also correct in noting that the public and press backlash would be enormous.

Again, I agree wholeheartedly with all these sentiments, but I think Tim missed another important angle here when discussing the unfounded fears about corporate censorship and the misguided attempts to use free speech as a justification for imposing net neutrality regulations.

In his paper, Tim is essentially making an argument about the practicality of broadband providers acting as speech regulators — and he demolishes that assertion. But Tim fails to make an argument about the principle of the matter that is at stake here. Namely, some net neutrality supporters are attempting to convert the First Amendment into an affirmative grant of state power to regulate private entities, something it was clearly never intended to do.

Indeed, when Net neutrality supporters like the “Save the Internet Coalition” make statements like “Network neutrality is the Internet’s First Amendment,” I sometimes wonder if they are reading the same Constitution that I am. After all, the language of the First Amendment could not be more clear when it says, “Congress shall make no law…” It doesn’t contain any caveats or footnotes. And the First Amendment most certainly was not intended as a tool for government to control the editorial discretion of private individuals or institutions. It was about restricting the power of the government to curtail speech and expression.

Beginning in the 1960’s, however, a handful of liberal legal theories began concocting a new theory of the First Amendment that eventually came to be known as the “media access” school of thought. George Washington University law professor Jerome A. Barron’s 1967 Harvard Law Review article, “Access to the Press — a New First Amendment Right,” as well as the work of Yale University law professor Owen Fiss, gave rise to this new intellectual movement. Its goal, in essence, was to convert the First Amendment into a club to beat demands out of private media providers. Basically, these theorists wanted to expand “Fairness Doctrine”-like right-of-reply notions to newspapers, and simultaneously grant the government more leeway to use the First Amendment to alter media structures and outputs. As Fiss argued in a 1986 law review article, under the “media access” approach, a proper reading of the First Amendment requires “a change in our attitude about the state” such that we learn “to recognize the state not only as an enemy, but also as a friend of speech… [that should act] to enhance the quality of public debate.” (Iowa Law Review, Vol. 71, 1986, p. 1416).

Other left-leaning intellectuals and activists groups would come to integrate that logic into their work and public policy proposals. Now you know, for example, where the Media Access Project gets their name! But many other regulatory-minded groups — like Free Press, MoveOn.org, New America Foundation, and others — trace much of their intellectual heritage back to Barron, Fiss, and the other media access theorists. [Read my lengthy debunking of media access theory here.]

Here we see how the seeds of misguided intellectual thinking sometimes spring into wild gardens in which the weeds slowly take over everything in sight. This twisted conception of the First Amendment is so thoroughly ingrained in leftist media policy thinking today that even an abundant medium like the Internet is not exempt from potential regulations based on it. And that’s how we get to the point we are at today in the net neutrality regulatory debate, with many policymakers and activists groups painting private broadband operators as the supposed real Big Brother problem that the First Amendment must address.

Consider, for example, the comments Sen. Hillary Clinton made in 2006 regarding why she supports net neutrality regulation: “Each day on the Internet views are discussed and debated in an open forum without fear of censorship or reprisal.” As I noted at the time, when I read her statement I practically fell off my chair. It’s not just that Sen. Clinton is asking us to believe in some asinine conspiracy theory about how broadband companies are supposedly out to censor our thoughts or engage in reprisals. (”Reprisals”? For what?) No, what really blew my mind here was the fact that Sen. Clinton had the chutzpah to declare that the private sector was somehow the real threat to online speech. After all, as I inventoried in that old essay, Sen. Clinton has led several notable efforts over the past decade to expand government regulation of television, video games, and even the Internet.

And yet she and many other Net neutrality advocates insist that it is the private sector, not the government, that is the real threat to our free speech rights. Again, Tim Lee is correct to point out in his paper that, practically speaking, these advocates of Net neutrality regulation have little to fear in this regard. It is almost impossible to believe that any Internet operator could limit speech or expression in the ways these regulatory advocates fear. Unlike the government, which possesses the coercive power to completely foreclose all speech under threat of fine or imprisonment, the private sector lacks the ability to use force to bottle up speech or speakers. And even if private operators tried it, there would be hell for them to pay with the press, industry watchdogs, and their even subscribers. More importantly, there’s just no good business angle to censorship; they make more money by delivering more bits, not fewer. Finally, any attempt by one actor to stifle something becomes a prime incentive for another to offer it.  So, Tim is right on all those grounds.

But the principle of the matter is important, and we can’t let regulatory advocates get away with their effort convert the First Amendment into something it isn’t. As Jonathan Emord, author of the brilliant Freedom, Technology and the First Amendment, argued back in 1991, “In short, the [media] access advocates have transformed the marketplace of ideas from a laissez-faire model to a state-control model.” The real danger of this twisted conception of the First Amendment, he noted, is that, “It fundamentally shifts the marketplace of ideas from its private, unregulated, and interactive context to one within the compass of state control, making the marketplace ultimately responsible to government for determinations as to the choice of content expressed.”

That philosophy and regulatory approach is completely at odds with a proper understanding of the First Amendment, and yet that is exactly what many Net neutrality regulatory advocates are asking us to accept today.  The state — not the private sector — remains the true threat to our liberties. And, most horrifyingly of all, empowering the state to use the First Amendment to regulate private actors will almost certainly backfire and result in more, not less, regulation of speech online.

I’m pleased to announce the publication of A Manifesto for Media Freedom, which I co-authored with Brian C. Anderson of the Manhattan Institute. Brian serves as editor of Manhattan Institute’s excellent City Journal and he is the author of best-selling books like South Park Conservatives and Democratic Capitalism and Its Discontents.

In this little manifesto, we highlight one of the central ironies of the Information Age.  Namely, that despite “the breathtaking abundance of new and old media outlets for obtaining news, information, and entertainment…”

many people hate this profusion, and never more than when it involves political speech. The current media market, they charge, doesn’t represent true diversity, or isn’t fair, or is subject to manipulation by a small and shrinking group of media barons. They want the government to regulate it into better shape, which just happens to be a shape that benefits them. Doing so… would be a disaster, a kind of soft or not-so-soft tyranny that would wipe out whole sectors of media, curtailing free speech and impoverishing our democracy.

In other words, instead of celebrating the unprecedented cornucopia of media choices at our collective disposal, many policymakers and media critics are calling for just as much media regulation as ever. We itemize these threats in our chapters and they include: efforts to revive the “Fairness Doctrine”, media ownership regulations, “localism” requirements, Net neutrality mandates, a la carte regulations, cable and satellite censorship, video game censorship, regulation of social networking sites, campaign finance-related speech restrictions, and so on.

In each case, we advance a pro-freedom paradigm to counter the advocates of media control. What do we mean by the “media freedom” that we advocate as the alternative to these new regulatory crusades? Here’s how we put it in the book:

For media consumers, it’s the freedom to consume whatever information or entertainment we want from whatever sources we choose, without government restricting our choices. For media creators and distributors, it’s the freedom to structure their business affairs as they wish in seeking to offer the public an expanding array of media options, for both news and entertainment. And for both consumers and creators,media freedom is being able to speak one’s mind without restraint and without the threat of FCC or FEC bureaucrats telling us what is “fair.”

It doesn’t seem like much to ask until you realize how many people in Washington and academia today are calling for these various flavors of media regulation.  Of course, it doesn’t help that media-bashing has always been a bipartisan sport.  Indeed, depsite the fact that most of these efforts are lead by the Left, our book highlights how some folks on the Right are still guilty of joining some of these misguided regulatory crusades.

Republican presidential candidate John McCain, for example, has sponsored “a la carte” mandates for cable and satellite operators and sponsored the draconian campaign finance law that will forever bear his name, McCain-Feingold. He has also proposed a follow-up law: McCain-Feingold II. Although it did not pass, McCain’s measure would have required broadcasters to run 12 hours of “candidate-centered and issue-centered programming” in the six weeks prior to primary and general elections — without giving broadcasters any control over those 12 hours (half of which would have had to run during prime time). The bill would have created a voucher system for the purchase of airtime for political advertisements, financed by an annual spectrum-use fee on all broadcast license holders. In sum, the legislation would have forced broadcast stations to pay a tax to the federal government that would in turn finance a pool of funds that politicians could turn around and spend to run ads on those very stations!

Others on the Right have favored the Fairness Doctrine in the past, and more recently, some have joined the Net neutrality effort. And many conservatives have long been in favor of various forms of media censorship.

That being said, the most serious threats to media freedom today arise from the Left and our book serves primarily as a response to the many Leftist efforts to regulate media today. As we argue in the introduction:

The left seems certain that a media problem ails our society; it just can’t decide what that problem is. Some contend that real media choices are as limited or biased as ever, while others argue that our democracy is imperiled by too many media choices, making it hard to share common thoughts or feelings. What unites these two types of critics is their elitist presumption that they know what’s best for the rest of us. They would love to rewrite regulations to tilt the media in the direction they prefer; and if they are allowed to do so, what is shaping up to be America’s Golden Age of media could come to a sudden end.

The Left’s obsession with reinstating the Fairness Doctrine is particularly telling in this regard. [You can read our history of the Fairness Doctrine here] But, as we go on to note:

Some liberals suggest that even a new Fairness Doctrine wouldn’t be enough to correct a “structural imbalance” in the media marketplace. They want tightened ownership regulations, mandates ensuring “greater local accountability” over radio and TV broadcasters, and a significant ramping up of subsidies for public radio and TV stations. One leading leftist proposal would even force private broadcasters to fund public broadcasters! These proposals expose the left’s true goal: to regulate private media outlets comprehensively and drive out those owners who dare to offer right-leaning alternatives.

This movement is being driven by a wide variety of Left-leaning think tanks and advocacy groups, especially Free Press, Media Access Project, and the New America Foundation. These organizations will likely have a strong voice in an Obama administration regarding media law and Internet policy issues. And we fear that means that new regulatory shackles will be placed on the media and free speech as a result. That’s why we penned this manifesto at this time. As we conclude in our book:

Motivated by the naked desire for political control, a reactionary fear of the new, or genuine if misguided views on equality and fairness in the media, [these liberal media activists] threaten to enact regulations that will strangle or at least cripple this social development before it can begin to reach its potential. Those on the right are not free from these impulses, either. But they, as the prime beneficiaries of media abundance — of all the conservative and libertarian talk shows and websites that would suffer in a media landscape remade by the Democratic Party and liberal activists — should embrace, defend, and expand the freedom that made it possible.

Anyway, if you care about free speech and media freedom, I do you hope you will consider giving the book a look. The main page for our book is here. And you can find it on Amazon here.

Senator Hillary Clinton (D-NY) proposed new legislation on Thursday that would make it a federal offense for retailers to sell a minor a video game that includes violent or sexual themes. Her bill would impose a $5000 fine on any retailer that sold a youngster a game that was classified as mature or violent under the video game industry’s voluntary ratings system.

The Clinton bill might best be thought of as a “hanging the industry with its own rope” regulatory scheme. That is, her bill would hijack the industry’s voluntary ratings system and then use it against them (and retailers) should someone choose to sell a game with mature or violent themes to someone under the age of 18.

The problem with this regulatory scheme is that is will have two related unintended consequences. First, if federal officials threaten to use the industry’s voluntary ratings scheme against them in this fashion, some developers might choose to abandon the voluntary scheme altogether. Second, if enough developers did abandon the voluntarily ratings scheme, it would likely lead to calls by Mrs. Clinton and others in government to impose a mandatory federal ratings scheme on this industry. And that poses serious First Amendment issues since the government (either the FCC or FTC, I assume) would be required to define what constituted “excessive violence” or “mature themes” in electronic games.

What makes this so troubling is that the video game’s voluntary ratings scheme is outstanding and a real help to millions of parents like me. While most media sectors today have ratings systems of some variety, some of these ratings schemes are more descriptive than others. The video game industry’s system is the best.

In 1994, the video game industry formed the Entertainment Software Ratings Board (ESRB), an independent ratings body for computer software and video games. It is, by almost all accounts, the most comprehensive and descriptive ratings scheme yet devised by a major media sector. ESRB ratings provide parents and consumers with six age-based ratings categories (Early Childhood; Everyone; Everyone 10+; Teen; Mature; Adults Only 18+), but then also go much further by providing more than 30 different “descriptors” explaining the precise type of content consumers will see in the game.

The movie industry’s ratings system, while not as descriptive as the video game industry’s, provides a well-known 5-part ratings scheme (G, PG, PG-13, R, and NC-17) as well as some content-specific descriptors that appear before a movie begins.

The television ratings system builds on this model with six age-based ratings (TV-Y (all children); TV-Y7 (for older children); TV-G (general audience); TV-PG (parental guidance suggested); TV-14 (not recommended for children under 14); TV-MA (for mature audiences only)). In addition, programs often contain four single-letter descriptors to specify whether the program contains intense violence (V), sexual situations (S), coarse language (L), or suggestive dialogue (D).

It goes without saying that these ratings schemes are probably not perfect, although one struggles to imagine how the video game industry’s system could be any more detailed without becoming unnecessarily cumbersome. Some critics claim the age-based ratings employed by the movie and television sectors are not clear enough, or that they could be more descriptive like the video game industry’s system. Efforts have been made to improve or update at least the movie industry ratings scheme over time. The television ratings system, which is still quite young, will probably evolve too, and pull-up, on-screen menus are already providing much additional information for cable and satellite consumers.

But, regardless of the current efficacy of any of these ratings schemes, the important question here is whether the government should have any say over how video programming is rated. Any attempt by government to impose a mandatory ratings scheme on industry would almost certainly run afoul of the First Amendment. Realizing this, many policymakers have long favored the hang-industry-with-their-own-rope approach. Again, the thinking here is that government would not seek to create its own, constitutionally-suspect ratings scheme but, instead hold the industry liable in some fashion for supposed failures to use their own ratings system properly.

Again, these ratings systems are a subjective, imperfect science. Clearly, some in government, and perhaps even many average citizens, believe that industry could “do more” to provide better ratings or information. But it does not follow that government should be the one “doing more” by taking the extreme step of regulating video programming or hijacking an industry’s rating system. This is especially the case since regulatory efforts like the Clinton bill would almost certainly lead some developers to opt-out of their voluntary ratings scheme altogether to avoid the threat of legal liability.

Finally, while it is beyond the scope of this discussion (but will be the subject of my next major paper), measures like the Clinton bill ignore the reality of technological and media convergence and the special problem it creates for regulators. While these regulatory schemes may sound fairly straightforward to those in Congress, anyone who understands the nature of electronic networks, the Internet and interactive / adaptable media, realizes that such scheme could cast a much wider net than lawmakers realize. For example, if a random Joe develops a piece of freeware that involves a violent game of bloodsport of one variety or another (and this has been done many time on the Net already), how will this law cover it? And what about games that come bundled with some other piece of media, like a DVD or compact disc, and are on the same disc? Does that open up the movie or music to a ratings scheme too? If not, why not?

You get the point. The Clinton bill would open up a real Pandora’s Box of enforcement difficulties for the feds. Of course, it will all likely be struck down as unconstitutional by the first court that gets its hands on it, so perhaps I’m just wasting my breath here.

Regardless, as a parent of two kids, and as a life-long gamer myself, I say keep your hands of my X-Box Hillary! My wife and I can decide for ourselves what is right and wrong for our kids. And if they buy a game we don’t like at the store, we’ll find out about it soon enough. After all, where are they going to get the money to buy that game?