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.

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

Anyway, this week saw many of the same groups that filed before (and some new ones) file reply comments about those earlier submissions.  To make things simple, I have collected most of the notable reply comments down below in case anyone is interested.

• Association of National Advertisers
• American Legislative Exchange Council
• Children’s Media Policy Coalition
• Coalition for Independent Ratings
• Comcast
• Consumer Electronic Association
• Digimarc
• Electronic Frontier Foundation
• Entertainment Software Association
• Funai Electric Co.
• ION Media Networks
• Microsoft
• Motorola
• NAB, NCTA, & MPAA
• Nintendo
• Parents Television Council
• Smart Television Alliance
• TiVo
• T-Mobile
• TV Guardian

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

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

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

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

• denotes co-chairs of the task force

I was very interested to read Berin’s post about the Boxee, a device I had not heard about until today. I’ve been asking for years why there are no good video jukebox products on the market, so I’m always interested to see new entrants in the market.

If Wikipedia is to be believed, Boxee is a fork of the XBMC Media Center, which I first wrote about way back in 2006. The reason you may not have heard more about the XBMC Media Center is that it sits in an uncomfortable legal grey area. Thanks to the DMCA, one of its most inportant features—the ability to play and rip DVDs—is illegal. And there are probably other DMCA- and software-patent-related legal impediments to releasing a product like the XBMC. As a consequence, the major consumer electronics manufacturers have released relatively crippled set-top boxes that have not caught on with consumers.

Boxee’s wikipedia page suggests that Boxee uses libdvdcss, a cousin of the DeCSS library that the courts ruled to be an illegal “circumvention device” back in 2001. And the DMCA holds that someone who “trafficks” in a circumvention device “willfully and for purposes of commercial advantage or private financial gain” should be fined up to $500,000 and imprisoned for up to 5 years.

Now, the NYT article says that “Lawyers say that Boxee does not appear to be doing anything illegal,” although it doesn’t quote any actual lawyers, nor does it say which legal issues those lawyers examined. It’s possible that Boxee stripped out libdvdcss and replaced it with code that has been approved by the DVD founders. Moreover, it seems that Boxee’s strategy is to just build cool technologies and let the legal chips fall where they may:

Mr. Ronen said that like many start-ups, Boxee was definitely leaping without looking. “Don’t assume we have lawyers. That’s expensive,” he said.

This is a very risky strategy, both from a business perspective and for Ronen personally. But it’s also likely to pay off. If Ronen is able to get enough customers before the MPAA can be roused into taking legal action, they have a pretty good shot at winning the resulting PR war and forcing the MPAA to back down, even if the MPAA has the law on its side. And indeed, that may be the only way to break into this market, because if he plays by the rules he’ll never get the studios’ permission to build a set-top box the studios don’t control.

Fortunately, courts tend to be swayed by the perceived “legitimacy” of a technology’s designers. Remember, for example, that just 7 years after suing to keep MP3 players off the market, the recording industry insisted to the Supreme Court that everyone knew MP3 players were legal. There weren’t any changes to the law in the interim. Rather, MP3 players had become a familiar technology and so judges intuitively “knew” that any interpretation of the law that ruled out MP3 players must be wrong. If Boxee can grow fast enough, and can cultivate a “good citizen” image, it may be able to pursuade judges that any interpretation of the DMCA that precludes Boxee must be wrong.

The more fundamental point, of course, is that it’s ridiculous that Ronen has to worry about these legal issues in the first place. The copy protection technologies Ronen is circumventing haven’t stopped piracy, they’ve simply given Hollywood a legal club with which to bludgeon technology companies it doesn’t like. Had the DMCA not been on the books, we likely would have seen a proliferation of XBMC-like device and software on the market several years ago.

Yesterday, the Senate passed S. 602, “The Child Safe Viewing Act of 2007,” which was introduced by Sen. Mark Pryor (D-AR) in February 2007. The bill requires the Federal Communications Commission (FCC) to study the market for “advance blocking technologies” (i.e., parental controls and rating systems) that parents can use to protect their kids from inappropriate content from various sources and platforms. On the surface, the measure seems harmless enough, but in practice, it could have some troubling long-term free speech implications if it leads to more government meddling with parental controls and ratings systems.

The measure requires the FCC to initiate a notice of inquiry to consider measures to examine:

1. the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms;
2. methods of encouraging the development, deployment, and use of such technology by parents that do not affect the packaging or pricing of a content provider’s offering; and
3. the existence, availability, and use of parental empowerment tools and initiatives already in the market.

That all sounds harmless enough. Indeed, such a study could produce some useful information about the state of the parental controls marketplace.  (Of course, I could save them some taxpayer dollars and just send copies of my big Parental Controls & Online Child Safety report to all FCC officials!)

But it’s what comes next in the bill that causes me some heartburn. As part of the review mandated by the bill, S. 602 commands the FCC to “consider advanced blocking technologies that”:

1. may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms;
2. may be appropriate across a wide variety of devices capable of transmitting or receiving video or audio programming, including television sets, DVD players, VCRs, cable set top boxes, satellite receivers, and wireless devices;
3. can filter language based upon information in closed captioning;
4. operate independently of ratings pre-assigned by the creator of such video or audio programming; and;
5. may be effective in enhancing the ability of a parent to protect his or her child from indecent or objectionable programming, as determined by such parent.

I have highlighted the two provisions that are cause for concern since they raise the specter of what I referred to as “convergence-era content regulation” in a PFF paper about the bill last year.  Let me explain.

Regarding that first provision, here’s how I stated my concern in my old paper:

In demanding that regulators investigate and consider requiring blocking technologies for “wired, wireless, and Internet platforms,” the measure potentially opens the door to the beginning of convergence-era content regulation at the FCC. The agency currently has no authority to regulate content (or parental control technologies or rating systems) on most media or communications platforms outside of broadcasting, and its authority over broadcasting is limited. But S. 602 would potentially give regulators the ability to begin expanding the horizons of federal content regulation. One wonders what sort of resources the FCC would need to carry out this task. After all, we’re talking about numerous platforms and a potentially enormous volume of content. The FCC would likely need a small army of regulators to ensure that all “wired, wireless, and Internet platforms” were in compliance with the law. Will there be a specific team of FCC officials devoted to monitoring advanced blocking mechanisms for the official websites of major media operators? What about YouTube.com, MySpace.com and other major websites that host both user-generated content and professional media content? What about the new media platforms and content that mobile operators are offering? Many advanced blocking tools already exist to screen or filter online content, but whether other types of regulation could be required under S. 602 remains unclear. Moreover, the global reach of many of these online platforms raises other enforcement issues.

Second, regarding the second provision I highlighted above (about “independent ratings”), here again is how I stated my concern in my paper:

in specifying that these new advanced content blocking technologies should “operate independently of ratings pre-assigned by the creator of such video or audio programming,” S. 602 seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption. Existing rating and labeling systems, while not perfect, are well-established and comprehensive. It is simply unrealistic to expect that all new advanced content blocking technologies will operate independent of existing rating and labeling systems, such as the television rating system, the MPAA movie rating systems, and the video game industry’s ESRB rating system. It is important to realize that these systems rate and label almost all the entertainment content produced in their respective fields. While third-party rating systems can supplement these official industry rating schemes, it is unlikely those independent schemes will ever be as comprehensive as the official industry systems. More importantly, existing blocking tools on the market today, such as the V-Chip and cable and satellite set-top boxes, rely on those official rating and labeling systems, which most Americans are already familiar with. It is unrealistic to expect all new consumer media devices to employ alternative blocking schemes or be able to read independent rating systems. Thus, it remains unclear what that sponsors of S. 602 are hoping to accomplish by specifying that new blocking systems “operate independently of ratings pre-assigned by the creator.” Regardless, the real danger here is that that language could fuel a push for “universal” media ratings that would be imposed by the government or a third-party which has the government’s blessing. It goes without saying that such a proposal would raise serious First Amendment concerns. But, even setting aside the clear First Amendment concerns, there is no practical reason to believe that the government could actually do a better job of assigning ratings or creating parental control tools. If the government were responsible for assigning content ratings or labels, for example, five unelected bureaucrats at the FCC or some other regulatory agency would simply substitute their own values for those of the voluntary rating boards or other labeling organizations in existence today.

Importantly, however, the version of S. 602 that the Senate passed was amended before being voted out of the Senate Commerce Committee on August 2, 2007. The amended version made a few important wording changes to the original version of the bill. Specifically, the Senate Commerce Committee struck the phrase that specified the FCC would have the power ” to encourage or require” the use of advanced blocking technologies.  Needless to say, that’s a very important deletion since it means that S. 602 hasn’t granted the FCC sweeping new powers to require the creation of content controls or ratings systems.  It’s one thing for the FCC to study the marketplace of existing controls and ratings systems. It’s quite another for the agency to get actively involved in the business of mandating or regulating those controls or rating systems.

Sen. Pryor and his Senate colleagues are to be commended for avoiding direct content regulation and instead focusing on empowering families to make media consumption decisions on their own. Nonetheless, in an attempt to empower parents it is important that Congress not empower regulators instead.  S. 602 opens the door to an expansion of the FCC’s authority over media content on multiple platforms and threatens to undermine private, voluntary rating systems in the process.  There are better ways to help parents and protect kids.

Further reading / sources:

• The Senate-passed version of S. 602
• press release from Sen. Mark Pryor about Senate passage
• article by Ted Hearn of Multichannel News about Senate passage
• my PFF white paper on the earlier version of the bill: “Convergence-Era Content Regulation? S. 602, The Child Safe Viewing Act of 2007“.

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.

There’s been a lot of FUD floating around about the MPAA’s plan to offer new release films for cable subscribers to watch at home on pay-per-view channels. Currently, movies come out on DVD about four months after their theatrical release, and are typically available on pay-per-view a month or two thereafter. As box office receipts have waned, Hollywood has warmed to the idea of letting consumers watch movies at home just a few weeks after being released in theaters.

Due to piracy concerns, new movies would be subject to an extra layer of copy protection. The movie studios want to use a technology called Selectable Output Control (SOC) to prevent new release films from being viewed on analog outputs. SOC makes it possible to seal the “analog hole” by disabling all unprotected paths.

Consumers are willing to pay to watch new movies at home, and content producers are willing to transmit them, but government is standing in the way. FCC regulations forbid multi-channel video programming distributors from activating SOC, but firms may apply for a waiver from these rules if they can demonstrate that consumers stand to benefit. The MPAA has applied for a waiver, arguing that “These new Services are exactly the type of ‘new business models’ that the Commission contemplated when it adopted the encoding rules.”

Under Section 304 of the Telecommunications Act of 1996, the FCC is tasked with “assuring commercial consumer availability of equipment used to access services provided by multichannel video programming distributors.” FCC regulations, therefore, mandate that all video transmitted on cable TV must be viewable on all outputs, including legacy analog connectors like RCA and S-Video. In a 2003 Notice of Proposed Rulemaking, the FCC stated that, “we are concerned that selectable output control would harm those ‘early adopters’ whose DTV equipment only has component analog inputs for high definition display, placing these consumers at risk of being completely shut off from the high-definition content they expect to receive.”

But it’s expected that early adopters will sometimes encounter technical hurdles. Why should Selective Output Control be any different? Just as HD-DVD players are effectively obsolete, and K56flex modems are no longer supported by most dial-up ISPs, people who bought HDTVs several years ago prior to the adoption of HDCP might have to live without the ability to watch new release movies at home.

HDCP—which stands for High Definition Copy Protection, a digital encryption standard built in to nearly all newer HDTVs—lets consumers watch high-def programming in full 1080p glory over digital, encrypted outputs (DVI and HDMI). The trouble is that some consumers own high-definition displays that aren’t HDCP capable, as the standard wasn’t widely implemented until early 2006. But that’s hardly a reason why those who do own HDCP-enabled devices should lose out on the opportunity to view high-value content that content producers are uncomfortable releasing on mediums vulnerable to piracy.

New-release films are a major target for pirates, so MPAA’s worries about copyright infringement make sense. Typically, high-quality versions of new release films do not become widely available on the usual piracy venues until the film is out on Blu-Ray and DVD. Transmitting brand new movies in high-def on analog component outputs would allow pirates to distribute high resolution releases captured with off-the-shelf equipment.

With a growing number of IP-based video options coming to the scene, the market will punish overly aggressive DRM technologies. Consumers enjoy an increasing menu of alternatives to cable for viewing high-def movies at home. This fall, Xbox 360 owners will be able to stream Netflix movies straight to their console. If cable companies offer an inferior product—say, one that “breaks” commonly used outputs—subscribers will simply switch to competing video services

Concerns about cable subscribers paying for movies only to receive a black screen are overblown. Why would any cable company make such a bone-headed move? Hollywood has voluntarily chosen not to activate the Image Constraint Token (which “downrezzes” 1080p content to 540p when played through an analog output) for fear of alienating users. Facing fierce competition, cable companies have a strong incentive to avoid angering their subscribers.

Several groups have argued that the FCC should reject the MPAA’s waiver on fair use grounds. But content owners aren’t required to ensure that all movies can be easily timeshifted and archived. There is no consumer right to unfettered, analog video programming. Fair use is an important exception to copyright law, but that doesn’t mean government should mandate crippled DRM just so consumers can exercise fair use. If movie studios wish to relegate certain films to being viewed only on encrypted outputs, then it’s up to the marketplace to devise methods to allow for timeshifting of protected content.

The real impediment to fair use isn’t Selectable Output Control, but the DMCA’s chilling anti-circumvention clause. Software capable of breaking DRM shouldn’t be banned, but robust DRM shouldn’t be illegal, either. Consumers will shun content that’s encumbered with intrusive DRM, and market forces will reward copy-protection schemes that balance transparency with robustness. In the ongoing battle over DRM, the best course for government is to stay out entirely.

If there’s a market for new release movies delivered straight to the home, it should be allowed to emerge, unfettered by federal regulation. Content owners should not be required to ask for the FCC’s permission to activate DRM technology. If the FCC rejects the MPAA waiver, Hollywood may simply decide that nobody will get a chance to watch new release films at home.

I have just released a new PFF white paper on “The Perils of Mandatory Parental Controls and Restrictive Defaults.” It points out the dangers of government mandating that parental controls be defaulted to their most restrictive position. I’ve gone ahead and just pasted the entire text below (but without the footnotes):

During ongoing debates about parental controls, ratings, and online child safety, there have occasionally been rumblings about the possibility of requiring that media, computing and communications devices: (1) be shipped to market with parental controls embedded, and possibly, (2) those controls being defaulted to their most restrictive position, forcing users to opt out of the controls later if they wanted to consume media rated above a certain threshold.

Imagine, for example, a law requiring that every television, TV set-top box, and video game console be shipped with on-board screening technologies that were set to block any content rated above “G” for movies, “TV-Y” for television, or “E” for video games, which are the most restrictive rating designations for each type of media. Similarly, all personal computers or portable media devices sold to the public could be forced to have filters embedded that were set to block all “objectionable” content, however defined.

If “default” requirements such as this were mandated by law, parents would be forced to opt out of the restrictions by granting their children selective permission to media content or online services. In theory, this might help limit underage access to objectionable media or online content. Such a mandate might be viewed as less intrusive than direct government censorship and, therefore, less likely to run afoul of the constitution.

For these reasons, such a proposal would likely have great appeal among some policymakers, “family” groups, child safety advocates, and parents. But mandating parental controls and restrictive defaults is a dangerous and elitist idea that must be rejected because it will have many unintended consequences and not likely achieve the goal of better protecting our kids. You Can Lead a Horse to Water, But…

As I have pointed out in my book on Parental Controls and Online Child Protection: A Survey of Tools and Methods, 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. And this is true for all forms of media, from TV and music to video games and the Internet.

That being said, one of the enduring mysteries about parental controls is why many parents do not take advantage of the tools and options at their disposal. It’s the proverbial “you can lead a horse to water, but you can’t make him drink” problem. There are a few reasons why this may be the case.

First, many households may not take advantage of parental control tools because they instead rely on a variety of non-technical “household media rules.” In chapter 2 of my book, I identified four categories of household media rules that surveys show almost all parents use in some combination to control their children’s media consumption: (1) “where” rules; (2) “when and how much” rules; (3) “under what conditions” rules, and, (4) “what” rules.

Second, in many homes, technical controls and rating systems are viewed as unnecessary if the kids are below or above a certain age. Many parents of children under 4 or 5 years of age, for example, do not let their kids consume much media, or they at least have much tighter control over their children’s media consumption habits. And after kids reach their mid-teen years, many parents eschew technical controls because they either trust their kids, or better yet, they constantly talk to them about media content or their online experiences.

Of course, it could also be the case that some parents do not use technical controls or rating systems because they find them too confusing. That may be true to some extent, but it is important to note that these controls and rating systems are getting increasingly easy to use. Most parental control tools are just one or two clicks away on most TVs, gaming systems, or personal computers. And although there are different rating schemes for different forms of media, those rating systems share much in common and are all quite descriptive. Setting up parental controls is certainly no more difficult now that programming a personal video recorder or uploading digital photographs to the Internet.

Finally, it may be the case that some parents are simply not aware of the controls or ratings. This too, however, is increasingly unlikely. Survey data suggests a growing familiarity with most rating systems, although some more than others. And companies and non-profit organizations are increasingly offering more information and tutorials along with the parental control tools that are typically embedded, free-of-charge, in almost all modern media devices. In any event, the answer to low awareness issues is not mandatory defaults but, as I explain below, increased educational efforts.

Forcing the Issue

Still, for whatever reason, many parents are not using parental controls or rating systems and, at the same time, many feel or express some concerns about being able to manage media use by their children. Regardless of the culprit—and it could be a combination of all of the factors listed above—what more could be done to encourage these parents to use these technical controls and rating systems to limit children’s access to potentially objectionable content or communications? There are two general options.

Increased Education & Empowerment Options One way to increase parental comfort levels is through better education and awareness-building initiatives. As mentioned, many companies already offer detailed information and tutorials along with the parental control tools they offer, but more could always be done to promote awareness of the tools and how to use them. Many parents may feel media use in their homes is unmanageable because they are unaware of their options or unsure how to utilize the available tools.

One sensible first step is the inclusion of easy-to-understand instructions in all user manuals. “Tip sheets” could also be bundled along with the products, which provide a summary of how set up parental controls, or what relevant ratings meant. Most vendors already offer this and much more on their websites, but sometimes the URLs for those pages can be difficult to find. All media companies should consider placing clearly labeled links on their websites to guide visitors to parental controls, ratings information, or online safety tips. Finally, customer support hotlines—whether automated and human-based—could probably be improved and expanded.

Again, most companies are already moving in this direction today. It’s simply a smart business practice since many parents increasingly expect such services to be available. To the extent some companies aren’t keeping up, others—policymakers and child safety groups, in particular—are increasing putting pressure on them to provide such tools and assistance.

Mandated Controls & Maximum Defaults The second approach to encouraging more widespread use of parental controls and rating systems would involve the sort of legal mandates described above. Presumably, this would require a law or regulation that would: (1) spell out what sort of controls or filters would be embedded in every “media or computing device” and then, (2) determine how restrictive the default control settings would be before the hardware or software in question was marketed. In essence, this would be a mandatory “opt out” regime for parental controls / filters.

The first portion of the mandate is largely unnecessary; almost all major media devices marketed today already contain some sort of parental control tools. All TVs include V-chips, all set-top boxes include additional TV screening controls, and all video game consoles include blocking tools for both games and movies. With PCs, filters and monitoring tools have been made ubiquitously available by ISPs and non-profit entities for little or no charge, and operating systems like the new Windows Vista have included parental control tools. Importantly, almost all of these tools are free-of-charge. A variety of supplementary tools can be purchased online or from electronics retailers or computer stores. As a general matter, moreover, it is rarely sound public policy to have governments—rather than markets—select a particular technology or service as a mandatory feature. This risks locking in less effective technology and, in a worst case scenario, creating financial windfalls for well-connected technology vendors.

The real debate, then, comes down to the question of how effective those embedded controls are at meeting the interests of parents, and whether the embedded controls should have pre-established defaults set to the most restrictive setting available before they are shipped or downloaded. Of course, any company could voluntarily offer such an alternative today. It’s worth asking, therefore, why are no companies currently doing so?

Enforcement Hassles

There are many reasons why no media or communications companies are currently offering such maximally restrictive defaults when they ship their products to market, and those reasons are instructive when considering the wisdom of mandating that such defaulted controls be imposed by law.

To begin, there’s just not as much demand for this as some might think. Again, not all parents see the need to use parental controls or ratings, usually because they rely on household rules or tightly monitor or restrict access to media and communications devices.

Second, not all homes have children in them. According to the U.S. Census Bureau, almost 68 percent of American homes do not have any children under 18 years of age in residence. Obviously, there is less interest in parental control technologies in adult-only homes.

Third, because there are many adults who purchase media devices for their own use, it would be illogical to ship all devices or products to market with the controls set to the most restrictive setting. In fact, many consumers (even some who are parents themselves) would likely find it annoying, and perhaps even somewhat insulting, to be forced to opt out of such controls when they purchase new media hardware or software. And it’s likely that as soon as such devices or services hit the market, consumer complaint hotlines would light up like Christmas trees due to calls from irate users griping about what they imagine to be defective hardware or software.

Could companies offer multiple versions of their hardware or software products to solve this problem? For example, some set-top boxes, gaming consoles, and PCs could be sold and labeled as “Kid-Friendly” (or “locked”) while others are “Adult-Only” (or “unlocked”). It goes without saying that this would represent a major expense to many vendors (especially hardware vendors). It could also create potential confusion when the devices are labeled and marketed for sale. And what would the penalty be for a mislabeled device, or the accidental sale of such a device to a minor?

Perverse Incentives and Possible Evasion

It may be that there is a market for such “kid-friendly” devices or services. There are, for example, some wireless device and service options designed for kids that have limited features, or some toy (and toy-like) devices that have filters on by default, or only work with certain age-appropriate internet services. Many social networking services designed for kids have strict settings on by default. These may well be fantastic choices for some parents and kids. But whether that is the case seems to be best determined by the market.

Mandating such a dual-version approach, particularly for mass-market general use devices like PCs and Televisions, seems likely to create perverse incentives, both for consumers and for media and technology providers. If services and devices are sold with the highest levels of restrictions active by default, many parents might seek to avoid the annoyance associated with the “kid-friendly” versions of the device and just purchase “unlocked” hardware or software. And kids would likely get quickly to work cracking the defaults on the locked / kid-friendly versions of the hardware or software. (Witness what happened in Australia within a few days of the government releasing subsidized filtering software). The result would be some significant degree of consumer dissatisfaction with high-default services and, except perhaps in the case of households with very young children, dissatisfaction with locked/kid-friendly services and devices.

Among the possible consequences would be a perverse incentive for service providers and device makers to avoid investing in parental control tools. If setting controls to the highest default level is mandatory, but at the same time most consumers don’t prefer that default level, some consumer backlash is inevitable. And when consumers are unhappy about a service feature—but companies are not permitted to address that unhappiness by turning off the higher settings—a likely result could be for companies to weaken or even not offer parental controls altogether.

There are other issues associated with enforcing such a mandate. Regulators would need to grapple with the possibility of widespread evasion in terms of offshore sales and black market devices. For example, would it be illegal for an eBay vendor located in Hong Kong to sell a U.S.-based customer an “unlocked” PlayStation Portable without first verifying that they are indeed an adult? If so, that’s another layer of regulation that needs to be considered in terms of online age verification.

Of course, governments could forbid the development of “unlocked” devices or software and mandate that every media or computing device sent to market had mandatory defaults set for maximum restrictiveness. Even assuming such rules would not run afoul of international trade rules, many of the same problems would still develop, however. It will likely be difficult to stem the flow of “illegal devices” or software, and hackers would likely only work harder to defeat existing controls. And what about all the existing “unlocked” devices already on the market? This mandate might breathe new life into older devices and discourage some consumers from making the jump to new hardware and software that includes superior parental control tools.

A final enforcement question relates to how broadly “media devices” are defined for purposed of this mandate. TVs, set-top boxes, gaming consoles and PCs would all be covered, of course. But what about mobile phones, iPods, MP3 players, PlayStation Portables and GameBoys, and so on? If Congress or the Federal Communications Commission defines “media devices” broadly, it would bring an unprecedented array of consumer electronic devices and communications technologies under the purview of federal regulatory authorities. Each class of devices would likely have its own set of enterprising hackers and renegade device makers, eager to evade the mandates. Presumably, financial penalties would be required and various enforcement actions would be sanctioned in an attempt to thwart such activity. Finally, as a result of these new mandates, the prices all the affected media devices would likely rise for consumers.

Unintended Consequences and Constitutional Concerns

At this point, some supporters of such an approach might be thinking: So what? Regulation is often difficult, even expensive, but we find ways to enforce many other laws if for no other reason than to try to teach the public, or kids, a lesson. In this case, some slippage in the system might be viewed as an acceptable trade-off for the increased awareness among some parents about parental control tools or potentially objectionable media content or forms of online communications.

But this mentality is quite myopic in that it ignores the many unintended consequences of such a regulatory regime. The fundamental problem with a mandate of this sort is that, while well-intentioned, it threatens to upset the current balance of things and could leave parents and their children less well off.

As was stated previously, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal. It would be foolish, however, to think that this situation might not be retarded or even reversed by misguided public policy prescriptions. One of the most unfortunate consequences of such a mandate would be that it might lull some parents into a false sense of security. If parents came to believe that because a filter was installed they need do nothing more to help their children go online safely, or become engaged in their media choices, that would be an extremely troubling outcome.

Moreover, as was noted above, a rule mandating restrictive parental control defaults might create perverse incentives for industry to not rate content or build better controls at all. After all, it is important to remember that the ratings and controls that government is seeking to regulate here are voluntary and private; there is no reason they couldn’t be abandoned tomorrow. Of course, if they were abandoned that might lead to calls for government intervention / regulation and the substitution of some sort of universal ratings regime for the voluntary systems that exist today. If that scenario developed, lawmakers will be forced into making content-based determinations that would likely run afoul of the First Amendment.

But even if voluntary rating systems remained in place as the basis of a new federal enforcement regime, there are some constitutional issues in play here. Namely, it would be unconstitutional for government to enshrine a private ratings scheme into law or use it as a trigger for legal liability. That is what several courts have held in past years after some state and local governments attempted to enact laws or ordinances based upon the MPAA’s voluntary movie ratings system.

For example, in Borger v. Bisciglia a U.S. District Court held that “[A] private organization’s ratings system cannot be used to determine whether a movie receives constitutional protection.” Similarly, in Swope v. Lubbers, the court held that “[t]he standards by which the movie industry rates its films do not correspond to the… criteria for determining whether an item merits constitutional protection or not.” Roughly a dozen court cases have come to largely the same conclusion: Government cannot co-opt a voluntary, private ratings system for its own ends. Recent video game cases have reached similar conclusions. Thus, a law mandating parental control defaults based on voluntary ratings systems will likely end up in court and become the subject of another protracted legal battle between government and industry.

Is This Really Necessary?

Finally, it’s worth noting that most media, communications, and computing devices cost substantial sums of money. Televisions, movies, video games, cell phones, MP3 players, computers, and so on, do not just drop from high-tech heaven into our kids’ laps! When our kids want those things—or want things that are advertised on those media platforms—they must come to us and ask for money (usually a lot of it). This “power of the purse” is, in many ways, the ultimate parental control tool. If parents are shelling out money for such devices, presumably they are also in a good position to set some rules about the use of those devices once they are brought into the home. Whether those rules take the form of informal household media rules or technical parental controls is, ultimately, a decision that each family must make for themselves. There is no reason for government to make that decision preemptively for all households by mandating highly restrictive parental control defaults.

Moreover, there are better ways for government and industry to encourage the diffusion and adoption of parental control tools and rating systems. Instead of spending money litigating cases against the government, industry should plow their resources into improved, easier-to-use parental control tools and consumer education efforts. And, as was mentioned above, government education and awareness-building campaigns could go a long way toward improving consumer adoption. In the past, government has helped change public attitudes about safety in other contexts by undertaking (or lending support to) various public awareness campaigns, including: forest fire prevention efforts (“Smokey the Bear” campaigns); anti-littering efforts (“Give a Hoot, Don’t Pollute”), and seat-belt safety. Those campaigns have helped forever change behavior and improved public safety as a result.

Policymakers should tap these more constructive, constitutional solutions and steer clear of mandating parental controls and restrictive default settings that would, ultimately, have many unintended consequences and leave parents and children worse off in the long run.

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

<img alt="Film%20not%20Rated.jpg" src="http://www.techliberation.com/Film%20not%20Rated.jpg” width=”240″ height=”240″ / align=”right” class=”noborder”>This review is terribly late, but I finally got around to watching the DVD of Kirby Dick’s documentary “This Film Is Not Yet Rated,” which goes after the MPAA’s movie rating system. Dick tries to paint the MPAA’s private, voluntary ratings board as a “star chamber” that sits in judgment of visual arts and routinely “censors” content it finds at odds with the desires of the studios, government, the military, churches, and so on. But to me, the whole film is much ado about nothing and, worse yet, it fails to adequately address the very real risk of a government censorship popping up in the absence of a private ratings system.

By way of quick background, the MPAA’s familiar ratings system was created by former MPAA president Jack Valenti back in 1968. It was partially a response to the growing pressure for film censorship. Back then – – and this is one of many things Dick’s documentary largely ignores – – there were local censor boards who sat in judgment of films and decided if they could be shown in their communities. And there were ongoing efforts by many lawmakers at all levels to impose regulation on movies or at least strong-arm movie makers into changing content in certain ways.

And so the MPAA ratings system was born. A crucial feature of the MPAA system was that those doing the ratings would be anonymous. The reason this was done was to protect them from being pressured by both those who made the films (who obviously want less restrictive ratings) and those in government or the public who critique the films (many of whom would want stricter ratings).

But keeping raters and the rating process secretive has always had one obvious downside: The system lacks transparency. Why is it that two films with very similar content get two different ratings? Sometimes it’s obvious, other times it’s not. And this is what has Kirby Dick, and the many directors or film critics he interviews in the documentary, up in arms.

Some of the points they make are quite valid, especially the fact that sexual content in movies tends to set off alarms with MPAA raters while extreme violence doesn’t seem to raise as much of a problem. The documentary makes a point of highlighting the movies that received an NC-17 rating, which many consider a kiss of death since most theaters won’t show a movie with that rating. Most of the movies that received the NC-17 rating got hit with it because of explicit sexual content. In some cases, however, the sexual actually wasn’t that explicit, just controversial (especially when it involved homosexual relationships). Meanwhile, brutally violent films rarely get an NC-17. Of course, this probably reflects our cultural tendency to fear sex more than violence, so maybe the MPAA’s ratings are more in line with American culture than Dick or the critics care to admit. But, without getting into that whole debate, I will just say that Dick and the directors he interviews made some compelling points about why it may be the case that the excessively violent movies should receive the NC-17 rating before those movies with explicit sexual content.

But that’s about the only sensible point Dick makes in this documentary. The rest of it is just a tedious and baseless screed against the MPAA’s rating system based on the preposterous notion that private ratings are somehow tantamount to censorship. Indeed, what is most frustrating about the documentary is Dick’s absolute refusal to seriously discuss whether or not this voluntary ratings system–warts and all–is actually worse than real government censorship. Moreover, he doesn’t bother seriously debating the deterrent effect of the MPAA’s ratings system, which many argue has helped deter government efforts to regulate movie content. Dick interviews a few experts in the film who suggest that this fear has been overblown and, amazingly, one of them even argues that he thinks a government-based ratings system would be better because it would supposedly be more transparent and film makers would get a fairer hearing.

This is where Dick’s case against the MPAA just flies off the rails. In essence, he is trying to indict the entire ratings system by pointing out the obvious fact that it is inherently subjective. But that is the nature of all ratings systems. Ratings aren’t an exact science; they are an inherently subjective exercise because they are based on value 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, there will always be “flaws” inherent in all ratings systems since humans have different perspectives and values that they will use to label or classify content.

But because of this, there will always exist a group of critics who will argue that someone–presumably, themselves or the government–can devise better ratings or controls. Setting aside the clear First Amendment concerns it would raise, there is no reason to believe that the government could actually do a better job. If the government was responsible for assigning content ratings or labels, for example, five unelected bureaucrats at the Federal Communications Commission or some other regulatory agency would simply substitute their own values for those of the voluntary ratings boards or other labeling organizations in existence today. And the argument that government would provide more objective ratings or effective controls is also undermined by the grim reality of power politics. Government officials 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 / values. Inevitably, as has been the case with the broadcast indecency complaint process in recent years, a small handful of particularly vociferous interests could gain undue influence over content decisions. This raises what the Supreme Court has referred to as the “heckler’s veto” problem since that vocal minority’s preferences could trump those of the public at large.

With private, independent ratings systems, by contrast, those assigning ratings or labels are generally isolated from lobbying or other interest group pressures. This it what makes the argument for “transparency” in ratings systems so disingenuous, or even somewhat dangerous. If “transparency” means forcing raters to be exposed to endless special interest lobbying or other pressures, one wonders if that would really produce a better system. It is more likely it would produce a system that bowed to those pressures.

This does not mean the raters ignore public input. To the contrary, private rating boards and labeling bodies poll the public and monitor what critics are saying to adjust their ratings accordingly. Indeed, the MPAA expanded its ratings designations over the past 35 years in response to concerns. And, just recently, the MPAA announced it would open up the ratings system a bit more. Some of the changes seem like a response to the concerns raised in Dick’s documentary. For example, the MPAA plans to reveal the names of the three senior raters and offer basic demographic information (but no names) of the others.

Regardless, what should be clear to everyone is that if the MPAA was forced by government to completely open up the ratings process to anyone who cared to provide input (including the public policymakers themselves), it would result in a circus-like atmosphere and little would get rated in a timely manner. Again, Dick doesn’t even bother mentioning this danger.

Dick’s concerns about NC-17 ratings being a kiss of death are also largely unwarranted. While it is true that many directors cut scenes from their movies to get an R rating and get their films in theaters, it is also true that the put all that material (and more) right back into the movie when it is released as a DVD! In fact, the commercials for many new DVD movies proudly scream that this is the “Uncut and Unrated” version of the film. It’s become a major selling point.

Another puzzling thing about the documentary is Dick’s complete failure to mention the explosion of independent movie ratings systems. If parents wish to independently verify MPAA movie ratings, or just get more information about the content of specific movies, there are many services to which they can turn. For example: