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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Additional Reading from Adam Thierer on Media & Content Regulation :

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

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

Today the Federal Trade Commission released a new report entitled, “Mobile Apps for Kids: Current Privacy Disclosures Are Disappointing,” which concludes that “confusing and hard-to-find disclosures do not give parents the control that they need in this area. The FTC argues that “parents need consistent, easily accessible, and recognizable disclosures regarding in-app purchase capabilities so that they can make informed decisions about whether to allow their children to use apps with such capabilities.”

It’s hard to be against the FTC’s “the more disclosure, the better” policy recommendation and I’m not about to come out against it here. But the question is: how much disclosure is enough? Reading through the report and seeing how hard the FTC hammers this point home makes me think the agency wants our app store checkout process to be littered with the pages of fine print disclosure policies that now accompany our credit card statements and home mortgage payments! Seriously, would that make us better off?

As a parent of two kids who both download countless apps on my Android phone, my wife’s iPhone, and our family’s Android tablet, I appreciate a certain amount of disclosure about what sort of information apps are collecting and how they are using it. I think Google’s Android marketplace strikes a nice balance here, providing us with the most crucial facts about what the application will access or share. Apple could do more on disclosure but the company also prides itself (to the dismay of some!) on its rigorous pre-screening process to make sure the apps in the App Store are safe and don’t violate certain privacy and security policies. Yet, as the FTC correctly points out, “the details of this screening process are not clear.” Of course, most Apple users simply don’t give a damn. They’re all too happy to let Apple just take care of it for them even if they’re not really sure what’s happening to their data behind the scenes. The more privacy-sensitive crowd wants greater disclosure and control, of course, and I’m sympathetic to that plea.  But again, how much disclosure is enough? Are you going to wade through pages of disclosure policies and privacy opt-ins before downloading that latest iteration of “Angry Birds” or “Cut the Rope”? Yeah, I didn’t think so.

Anyway, I don’t want to dwell on that. The more interested findings in the survey relate to price and market dynamics and I am hoping people don’t ignore them. After surveying the price of kids’ apps available in the Android Market and Apple App Store, the agency found that, “While prices ranged from free to $9.99, most of the 960 app store promotion pages listed a price of $0.99 or less. Indeed, 77% of the apps in the survey listed an install price of $0.99 or less, and 48% were free.  Free apps appeared to be the most frequently downloaded.” Here’s the pricing breakdown for both Android and Apple:

Folks, these are astonishing numbers. Almost 100% of the most downloaded kids apps in the Android Market are free… as in ZERO dollars and ZERO cents! And while Apple App Store prices tend to be a bit higher, 93% of apps are $2 or less.  This is one of the great consumer success stories of our time. Consumer welfare is vastly enhanced by the presence of hundred of kids apps that serve almost every interest and desire under the sun, and all for less than what you’d pay for a cup of coffee or a gallon of gas.

But wait, there’s more!!

This incredible success story is even more remarkable because of what the FTC finds next about market structure:

Staff found that hundreds of developers were responsible for the apps in the study. Staff encountered 441 unique developers in this study, only twelve of which had apps on both platforms. Only a handful of app developers were responsible for more than 10 apps in our sample. Developers with one app in our sample were popular, accounting for about 50% of all downloads/feedback ratings, even though they were responsible for only about 30% of the apps. In contrast, those developers with more than 10 apps in our sample accounted for about 1% of the feedback ratings for Apple, (and 20% of the downloads for Android) despite accounting for about 20% of all of the apps in the survey. This finding illustrates the broad and diverse nature of the mobile app marketplace.

“Broad and diverse marketplace,” you say?  That might be the understatement of the year!  I challenge you to find another part of not just our online ecosystem but indeed our entire economy that is this broad, diverse, innovate, competitive, and inexpensive.  I’m not sure that such a radically atomistic, mom-and-pop marketplace of entrepreneurs can last forever, but let’s pause and appreciate the fact that it does exist today.

Now, here’s the really interesting part of this story: This is generally what the world of kids’ online services looked like back in the late 1990s as well. It was incredibly diverse with lots of small mom-and-pop sites catering to kids and parents, often at no charge. And then along came COPPA. [Background here for those who are not familiar.] While COPPA helped address the legitimate problems a small handful of bad apples out there at the time created, it also raised serious compliance costs for that entire sector, including the many smaller mom-and-pop sites. In a letter send to the FTC back in 2005, child safety advocate Parry Aftab claimed that, “The cost of obtaining verifiable parental consent for interactive communications is very high, estimated at more than $45 per child, and even at that price difficult to obtain.” I have no idea how accurate that number was then (I think that was way too high of an estimate), or what the compliance cost per child was in the late 1990s, but let’s be conservative and say it was much smaller, perhaps less that a few bucks per child verified under COPPA.  And let’s assume that if we extended COPPA-like regulatory requirements to app stores that there would be some compliance cost. Again, even if the compliance cost was only a buck per kid, can you see how it devastating that would be to all the small mom-and-pop app developers out there who currently only get a dollar or two for their apps (assuming they charge anything at all)? Yes, it’s true that some of them use ads to offset their costs, but those ads have to pick up the tab for all their labor and development costs.  If you add new regulatory compliance costs to the mix, those mom-and-pop developers will be hit very hard. And then we will have far fewer of them. And the ones that remain will likely charge us more than the couple of bucks we pay per app today.

Further, even if the compliance cost per child gets down to a few cents (or tens of cents) per kid for large operators, it’s probably much higher for smaller operators. In other words, most of the costs here are fixed (hiring an extra employee, having lawyers review your policy, etc.), not marginal (the cost of verifying each additional kid), so it’s really hard to say what the real costs are. And with Apple and Google also taking a cut of the apps sold in the market, you really begin to see how adding on any additional compliance costs could hit the bottom lines of smaller app developers in a big way. When margins are this thin, burdensome regulatory mandates hurt even more. And sometimes they can drive you right out of business.

Which brings us back to the FTC’s role here. It’s clear that the consumer protection side of the agency has an important role to play here when it comes to ensuring consumers are better informed about data collection practices and corresponding privacy issues. But let’s not forget that the FTC was originally created as a competition agency. It’s supposed to care about market structure, competition, and consumer welfare. So, I wonder… are the folks in the FTC’s Bureau of Economics paying any attention to what their colleague are doing here? Because if we start layering on privacy regulations, all the good intentions in the world won’t be able to hold back the likely contraction and consolidation of this vibrant industry that will take place as small mom-and-pops struggle to absorb new regulatory burdens and compliance costs.

Something to think about before regulatory intervention drives up consumers prices and drives out of the market the countless entrepreneurs that make this sector so exciting–especially for parents and kids.

Filings are due to the Federal Trade Commission (FTC) today as part of its review of the Children’s Online Privacy Protection Act (COPPA) and the COPPA rule that the FTC devised and enforces. I didn’t have time to pen as much as I wanted, but I did submit a short filing to the agency in the matter based on some of my previous work both with Berin Szoka and on my own.  Here’s the executive summary for my filing:

It goes without saying that the Children’s Online Privacy Protection Act (COPPA) is complicated law and rule. When considering the rule and proposals to amend it, it is easy to get lost in the weeds and ignore the bigger picture. That would be a mistake. There are broader, more important questions that need to be asked as part of the Federal Trade Commission’s effort to expand this regulatory regime. These questions involve not only the costs of increased regulation for online business interests, but the impact of expanded regulation on market structure, competition, and innovation. More importantly, these questions cut to the core of whether the public (including children) will be served with more and better digital innovations in the future. There is no free lunch. Regulation—even well-intentioned regulation like COPPA—is not a costless exercise. There are profound trade-offs for online content and culture that must always be considered.

Whatever one thinks about the effectiveness or sensibility of the COPPA regulatory model for the Web 1.0 world, it is clear that the regime is being strained by the unforeseen realities of the Web 2.0 world of hyper-ubiquitous connectivity and user-generated content creation and sharing. The digital genie cannot be put back in the bottle.  While COPPA may continue to have a marginal role to play in this rapidly evolving world, that role will likely be increasingly limited by the inherent realities of the information age.

Entire filing can be found on the Mercatus website, on SSRN, or via Scribd [Also embedded below in a Scribd reader.] [FILING] Comments of Adam Thierer – Mercatus Center – FTC COPPA 2011 Ammendments

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

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

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

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

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

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

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

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

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

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

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

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

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

In sum: parents are parenting!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

John Naughton, a professor at the Open University in the U.K. and a columnist for the U.K. Guardian, has a new essay out entitled “Only a Fool or Nicolas Sarkozy Would Go to War with Facebook.” I enjoyed it because it touches upon two interrelated concepts that I’ve spent years writing about: “moral panic” and “third-person effect hypothesis” (although Naughton doesn’t discuss the latter by name in his piece.) To recap, let’s define those terms:

“Moral Panic” / “Techno-Panic“: Christopher Ferguson, a professor at Texas A&M’s Department of Behavioral, Applied Sciences and Criminal Justice, offers the following definition: “A moral panic occurs when a segment of society believes that the behavior or moral choices of others within that society poses a significant risk to the society as a whole.” By extension, a “techno-panic” is simply a moral panic that centers around societal fears about a specific contemporary technology (or technological activity) instead of merely the content flowing over that technology or medium.

“Third-Person Effect Hypothesis“: First formulated by psychologist W. Phillips Davison in 1983, “this hypothesis predicts that people will tend to overestimate the influence that mass communications have on the attitudes and behavior of others. More specifically, individuals who are members of an audience that is exposed to a persuasive communication (whether or not this communication is intended to be persuasive) will expect the communication to have a greater effect on others than on themselves.” While originally formulated as an explanation for how people convinced themselves “media bias” existed where none was present, the third-person-effect hypothesis has provided an explanation for other phenomenon and forms of regulation, especially content censorship. Indeed, one of the most intriguing aspects about censorship efforts historically is that it is apparent that many censorship advocates desire regulation to protect others, not themselves, from what they perceive to be persuasive or harmful content. That is, many people imagine themselves immune from the supposedly ill effects of “objectionable” material, or even just persuasive communications or viewpoints they do not agree with, but they claim it will have a corrupting influence on others.

All my past essays about moral panics and third-person effect hypothesis can be found here. These theories are also frequently on display in the work of some of the “Internet pessimists” I have written about here, as well as in many bills and regulatory proposals floated by lawmakers. Which brings us back to the Naughton essay.

Naughton comments on French president Nicolas Sarkozy’s recent speech at the eG8 summit, which many regarded as an attack on the Internet and online freedoms. Naughton argues:

in a way, he was just acting as a mouthpiece for the political, judicial, commercial and security establishments which are becoming increasingly hysterical about the way the internet is upending their respective applecarts. In that sense, Sarky was echoing the fulminations of England’s lord chief justice that “technology is out of control”, by which he meant, as Peter Preston has pointed out, is beyond his control. Establishment panic about the net’s disruptiveness is matched by renewed outbreaks of an age-old neurosis – moral panic about the impact of new communications technology on young people. This was fuelled last week by a report that Facebook was going to allow children under the age of 13 to become members. US law currently insists that websites that collect information about users (as Facebook does) aren’t allowed to sign on anyone under the age of 13.

I think Naughton’s probably on to something here. I’m not quite sure Sarkozy’s speech fit the classic “moral panic” model, but I did sense a bit of third-person effect hypothesis at work in some of Sarkozy’s comments.  Naughton continues on to discuss the rising fears about social networking sites in particular and notes “the fixed conviction of the adult world that young people are being seduced, hoodwinked, fixated, dumbed down (insert favourite downside here) by Facebook and Twitter.”  To this concern Naughton rightly notes:

Much of the moral panic about social networking is a projection of adult fears. A neurosis, as Ken Tynan wisely observed, is a secret that you don’t know you’re keeping. Many teenagers do silly things online; what their parents forget is that they also did silly things in their youth.

Quite right. This is actually a very old story. From the waltz to rock and roll to rap music, from movies to comic books to video games, from radio and television to the Internet and social networking websites—every new media format or technology spawns a fresh debate about the potential negative effects it might have on kids. In each case, the adult generation forgets they, too, were once kids and somehow got through the trials and tribulations of the adolescent experience.

The late University of North Carolina journalism professor Margaret A. Blanchard once noted: “[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.” And Thomas Hine, author of The Rise and Fall of the American Teenager, argues that: “We seem to have moved, without skipping a beat, from blaming our parents for the ills of society to blaming our children. We want them to embody virtues we only rarely practice. We want them to eschew habits we’ve never managed to break.”

What is needed, as I argued in my old book on Parental Controls and Online Child Protection, is a measured and balanced approach to children’s exposure to media content and online interactions — whether the fear is objectionable content or privacy.  All-or-nothing extremes are not going to work. In particular, fear-mongering and “techno-panics” are never the proper response. “Fear, in many cases, is leading to overreaction, which in turn could give rise to greater problems as young people take detours around the roadblocks we think we are erecting,” argue John Palfrey and Urs Gasser, authors of the brilliant recent book, Born Digital: Understanding the First Generation of Digital Natives. What parents, guardians, and educators need to understand, they argue, “is that the traditional values and common sense that have served them well in the past will be relevant in this new world, too.”

That is good advice to parents and policymakers alike.

The always-excellent Wall Street Journal “Information Age” columnist L. Gordon Crovitz has another editorial worth reading today, which builds on the Second Circuit’s recent decision to reverse FCC content regulation for broadcasting.  In “The Technology of Decency,” Crovitz explains “parents don’t need the FCC to protect their children.” “Technology makes it easier to block seven or any number of dirty words,” he notes. “Taking the FCC out of regulating indecency might just lead to more decency by refocusing responsibility where it belongs: on broadcasters and parents.”

That’s a point I’ve hammered on her in the past and in all my work on parental empowerment solutions, including my book, “Parental Controls and Online Child Protection: A Survey of Tools and Methods.” Indeed, 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 is acceptable in their homes and in the lives of their children.  And, luckily, poll after poll shows that parents are stepping up to the plate and taking on that responsibility (contrary to what some policymakers in Washington imply).

Moreover, legally speaking, Crovitz shows why the old rationales for regulating broadcasting differently no longer work. “No medium is likely ever to be as pervasive as broadcasting once was,” he notes. He goes on to note that:

Broadcasting is no longer the pervasive, dominant medium. And unlike the Web, televisions now have tools for parents to block programs based on their suitability for kids. And the appeal court’s history of technology undermines the legal foundation for allowing broadcast censorship, including the justification that broadcast outlets are scarce. There are now more television stations than newspapers.

Indeed, that’s a point I have stressed in my work, especially my Catholic University CommLaw Conspectus law review article, “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”  I also produced this video on “America’s First Amendment Twilight Zone” to better explain why the old notions of “scarcity” and “pervasiveness” no longer work as rationales for asymmetrical regulation of speech.  Anyway, make sure to read Crovitz’s excellent essay.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Connect Safely, which is great parenting and online child safety resource run by my friends Anne Collier and Larry Magid, has just released some excellent “Virtual World Safety Tips for Parents of Teens.”  Tons of good advice in there worth checking out, especially the thing I always focus on in all my online safety work—talk to your kids!! Here’s Anne and Larry on that point:

Talk with your teens about the virtual worlds they use – ask them to show you around. See what their avatars look like and what screen names they’ve chosen to represent themselves. What do their profiles and the appearance of their avatars say about them? Try to hold back snap judgments (long-term guidance usually works better than control if the goal is learning rather than short-term compliance – see this). Are their virtual-world profiles linked to social-network ones, and how much do those linked-up profiles together reveal about them – too much? Are their in-world friends mostly friends they know in real life? If not, do they know that they can’t really know who people are online unless they know them offline?

It’s about getting a dialogue going with your kids. That is so absolutely essential and it would help head off about 90% of the problems that develop online today with kids. Kids need mentoring, whether its in meatspace or cyberspace. But make sure to read all the Connect Safely tips. They are excellent.

Incidentally, I talked about some of these issues when I did a virtual guest lecture in Second Life last October hosted by Metanomics. The show was called “Live Free and Prosper: Government’s Place in Virtual Worlds and On-line Communities,” and I posted all the video clips here.  I also encourage those of you interested in these issues to check out these recent TLF guest posts by Joshua Fairfield an Associate Professor of Law at Washington & Lee University School of Law.  He recently posted and interesting essay entitled, “Virtual Paternalism” as well as a summary and discussion of the recent “FTC Report on Kids and Virtual Worlds.”  Worth reading.

Yesterday up on Capitol Hill, I hosted a very interesting discussion about “Next-Generation Parental Controls & Child Safety Efforts.”  I thought I’d provide a quick recap here for those who couldn’t attend. [Note: audio of the event will be up shortly at the link above and transcript is in the works.] The event featured Steve Crown, Vice President and Deputy General Counsel of Microsoft Corporation’s Entertainment & Devices Division; Dane Snowden, Vice President of External & State Affairs of CTIA – The Wireless Association; and Stephen Balkam, Chief Executive Officer of Family Online Safety Institute.

Steve Crown of Microsoft kicked the show off with a terrific overview of some the current and next-generation parental control tools and awareness efforts that Microsoft is deploying to help empower parents and keep kids safer both online and in gaming environments. Crown outlined Microsoft’s 5-prong strategy regarding how they have approached these issues on the gaming front, and I think it represents an excellent model of how sensible industry self-regulation and “best practices” can go a long way toward addressing concerns that many parents and policymakers have. The five strategies Crown outlined were: (1) Respect both the freedom of game creators and freedom of choice for game consumers; (2) empower parents with ratings, tools, and information; (3) use independent ratings (like the ESRB) to label content; (4) require all games be rated before they can be used on a platform so that parents can implement blocking controls; and (5) respect regional laws and rating systems in different parts of the globe.

In my book on Parental Controls & Online Child Safety: A Survey of Tools & Methods, I’ve documented many of the empowerment tools that Microsoft has deployed in recent years to make this empowerment vision a reality. One of the most important things MS does on its XBox 360 console is to provide an immediate “out-of-the-box” prompt for parents to set up parental controls and establish other limitations on online chat, spending, or Internet access. Microsoft announced another cool new feature in November 2007, the “Family Timer.” It lets parents limit how and when children play games on the console. This is similar to the time management tools Microsoft offers in its Vista operating system for PCs.  Incidentally, my wife has asked me to start using the Family Timer on our XBox — not for our kids, but for me!  This particular 40-year-old man is still a big kid at heart.

Crown also stressed the importance of “deep cooperation and coordination” when it comes to making parental empowerment a reality.  For example, when announcing the Family Timer, Microsoft also launched a new awareness campaign in conjunction with the Parent Teacher Association (PTA) referred to as the “Is Your Family Set?” campaign At the same time, Microsoft and the PTA also rolled out a new “P.A.C.T.” agreement form that parents and their children could sign to reach an agreement on acceptable video game usage in the home.

To bring all these efforts together and give parents a sort of “one-stop shop” for all these gaming tools and information, in early 2009, Microsoft launched a new portal, “Get Game Smart.com.”  The GetGameSmart site provides instructions and video tutorials about how to set up parental controls and family settings, tips and advice from child safety experts, a frequent newsletter, and much more.

Again, “cooperation and coordination” was central to the Get Game Smart effort, with over 15 partners being involved. Moreover, Crown pointed out, cooperation and coordination has also been essential to the efforts of Microsoft and others in the gaming industry when it comes to “point of sale” awareness-building about game ratings.  Obviously, game developers and console makers can’t have staff on hand at every store where games or consoles might be sold. Consequently, it often falls to sales clerks and others in retail stores to convey ratings info.  Luckily, because of the partnerships that have been struck between various stakeholders all along the food chain, public awareness and use of ratings has grown rapidly. Microsoft, the ESRB, and others in the gaming industry have worked with retailers like Best Buy, WalMart, and many online vendors to make sure relevant ratings information is used at the point of sale to inform parents or limit underage access to games rated for more mature audiences.

The chart below illustrates the dramatic increase in ratings use and awareness since 1999 — from 49% awareness in 1999 to 86% by 2008.  That’s an incredible success story in terms of how industry self-regulation and best practices can go all long way toward addressing the concerns of parents and policymakers without denying the public access to a broad range of games for all ages.

Also on hand at our Hill event yesterday was Dane Snowden of the CTIA – The Wireless Association. Snowden also stressed the importance of partnerships and coordination among many diverse players to build awareness about parental controls and online safety in the mobile context. Snowden pointed out that there are well over 600 different mobile communications devices on the market today, which makes devising controls a daunting task. But both the wireless industry and independent vendors are responding with a wave of new integrated tools and add-on services that can help parents control handset use and online interactions.

For example, beginning in November 2005, CTIA unveiled new “Wireless Carrier Content Guidelines” that industry members would follow “to proactively provide tools and controls to manage wireless content offered by the carriers or available via Internet-enabled wireless devices.  According to an April 2009 filing by CTIA to the FCC, the guidelines work as follows:

Under these guidelines, participating carriers agree to develop content classification standards and educate consumers about the meaning of the chosen categories and ratings. The Notice describes the bifurcation in these content classification guidelines between “Carrier Content” and content available from other sources. The guidelines for Carrier Content cover materials that are available through a carrier’s managed content portal as well as third-party materials for which customers may be billed directly by their wireless carrier. These materials are divided into “Generally Accessible Carrier Content,” which is available to all consumers, and “Restricted Carrier Content,” which is not available to wireless users under 18 years of age without specific parental authorization.

Many major wireless carriers have already announced their plans or policies regarding such content or developed family tools to help parents protect their children. Market leaders AT&T (“SmartLimits” and “Media Net”),Verizon Wireless (“Family Locator”), T-Mobile (“Web Guard”), and Sprint (“Net Safety“) already have excellent parental control services and websites up and running.

Dane Snowden also noted that a vibrant marketplace of independent parental control tools is now thriving on many platforms, including Apple iTunes apps and Windows Mobile apps. Thus, just as was the case in the traditional PC world, we can expect to see parental control tools integrated within networks and devices and then also on top of networks and devices. That’s the best of both worlds since it gives parents a lot of flexibility and options.

Finally, my old friend Stephen Balkam of Family Online Safety Institute placed all these developments in a broader historical context. He believes we are finally seeing a shift from a “fear-based approach” to online safety toward a “fact-based approach.” Balkam cited the early fears and techno-panics that motivated misguided and ultimately unconstitutional laws such as the Communications Decency Act of 1996 and the Child Online Protection Act of 1998. He also pointed out just how irrelevant such laws would have been even if they had remained on the books in light of the recent rise of problems like cyberbullying and “sexting.”

To address such concerns, Balkam stressed the importance of media literacy and digital citizenship and the need for a “Web 3.0” approach along the lines of what Anne Collier and Larry Magid have outlined in their work on the issue. Balkam also put in a plug for the “School and Family Education about the Internet (SAFE Internet) Act” (S. 1047), which was introduced in the Senate by Sen. Robert Menendez (D-NJ) and in the House by Rep. Debbie Wasserman Schultz (D-FL). The measure proposes an Internet safety education grant program that would be administered by the Department of Justice.  Balkam argued, and I agree, that such education and counseling-based approaches represent the better approach to a “criminalization” solution.

In closing, I think the 3 key take-aways from yesterday’s discussion were:

1. Cooperation and coordination are essential when devising parental control solutions and trying to build awareness of them.
2. Additional parental empowerment tools are great, but focusing on striking the right balance is crucial.  Parental empowerment tools must be both sophisticated and simple to use at the same time.
3. Education is absolutely essential in every child safety context. Whether it’s potentially objectionable content or unwanted forms of communications, we must talk to our kids and better prepare them for life in the Digital Age.  The best “parental control” is parental interaction and ongoing conversation with our kids.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Download mp3

Here is the full event description:

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

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

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

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

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

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

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

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

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

I. The Elitism of Speech Regulation

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

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

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

II. The Elitism of Privacy Regulation

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

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

III. Intellectual Schizophrenia on Both the Left & Right

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

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

IV. Common Tactics & Regulatory Mechanisms

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

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

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

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

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

V. The Crisis Mentality that Drives Regulation

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

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

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

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

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

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

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

VI. Third-Person Effect Hypothesis as an Explanation

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

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

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

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

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

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

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

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

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

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

VII. The Principled Alternative: Trust People & Empower Them

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

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

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

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

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

#

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[27] . See id. at 2.

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

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

[30] . Supra note 13.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

These techno-panics are almost always disproportionate to the real risk posed by new media and technology, which typically do not have the corrupting influence on youth that older generations fear.  Parents and public policymakers alike need to remember they were once kids, too, and managed to live through many of the same fears and concerns about media and popular culture. As the late University of North Carolina journalism professor Margaret A. Blanchard once noted: “[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.” And Thomas Hine, author of The Rise and Fall of the American Teenager, argues that: “We seem to have moved, without skipping a beat, from blaming our parents for the ills of society to blaming our children. We want them to embody virtues we only rarely practice. We want them to eschew habits we’ve never managed to break.”

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

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

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

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

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

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

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

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

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

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

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

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

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

Adam Thierer & I have just released a detailed examination (PDF) of brewing efforts to expand the Children’s Online Privacy Protection Act of 1998 to cover adolescents and potentially all social networking sites—an approach we call “COPPA 2.0.”

As Adam explained on Larry Magid’s CNET podcast, COPPA mandates certain online privacy protections for children under 13, most importantly that websites obtain the “verifiable consent” of a child’s parent before collecting personal information about that child or giving that child access to interactive functionality that might allow the child to share their personal information with others. The law was intended primarily to “enhance parental involvement in a child’s online activities” as a means of protecting the online privacy and safety of children.

Yet advocates of expanding COPPA—or “COPPA 2.0″—see COPPA’s verifiable parental consent framework as a means for imposing broad regulatory mandates in the name of online child safety and concerns about social networking, cyber-harassment, etc. Two COPPA 2.0 bills are currently pending in New Jersey and Illinois. The accelerated review of COPPA to be conducted by the FTC next year (five years ahead of schedule) is likely to bring to Washington serious talk of expanding COPPA—even though Congress clearly rejected covering adolescents age 13-16 when COPPA was first proposed back in 1998.

We’ll discuss some of the key points of our paper in a series of blog posts, but here are the top nine reasons for rejecting COPPA 2.0, in that such an approach would:

• Burden the free speech rights of adults by imposing age verification mandates on many sites used by adults, thus restricting anonymous speech and essentially converging—in terms of practical consequences—with the unconstitutional Children’s Online Protection Act (COPA), another 1998 law sometimes confused with COPPA;
• Burden the free speech rights of adolescents to speak freely on—or gather information from—legal and socially beneficial websites;
• Hamper routine and socially beneficial communication between adolescents and adults;
• Reduce, rather than enhance, the privacy of adolescents, parents and other adults because of the massive volume of personal information that would have to be collected about users for authentication purposes (likely including credit card data);

• Would likely be the subject of massive fraud or evasion since it is not always possible to definitively verify the parent-child relationship, or because the system could be “gamed” in other ways by determined adolescents;
• Do nothing to prevent offshore sites and services from operating outside these rules;
• Present major practical challenges for law enforcement officials in the face of such evasion by both domestic users and offshore sites;
• Could destroy opportunities for new or smaller website operators to break into the market and offer competing services and innovations, thus contributing to consolidation of online content and services by erecting barriers to entry; and
• Violate the Commerce Clause of the U.S. Constitution, since Internet activity clearly represents interstate commerce that states have no authority to regulate.

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

Mainstream Media Stories

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

Conservative, Religious, & “Family” Groups

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

Free Speech Advocates or Other Views

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

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

Technopanics are bad because they…

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

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

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

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

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

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

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

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

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

The Federal Communications Commission (FCC) has just released a Notice of Inquiry (NOI) in the matter of “Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming.” (MB Docket No. 09-26)  This NOI was required by S. 602, the “Child Safe Viewing Act of 2007,” which Congress passed last October and President Bush signed into law on December 2nd.  The measure requires the FCC 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.

The Act defines the term “advanced blocking technologies” as “technologies that can improve or enhance the ability of a parent to protect his or her child from any indecent or objectionable video or audio programming, as determined by such parent.”  Importantly, the Act also directs the agency to look into blocking technologies that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms” and which “operate independently of ratings pre-assigned by the creator of such video or audio programming.”   The Act requires that the FCC issue a report to Congress about these technologies no later than August 29, 2009.

When writing about the Child Safe Viewing Act shortly after its introduction in the summer of 2007, I noted that the measure potentially represented the beginning of “convergence-era content regulation” at the FCC.  Those two clauses highlighted above are of particular importance in that regard.  Congress has essentially invited the FCC to engage in unprecedented oversight of media platforms and ratings systems that the agency previously had very little ability to influence. 

First, the Act’s stipulation that the FCC examine advanced content blocking technologies that “operate independently of ratings pre-assigned by the creator,” seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption that suggests the FCC might be able to come up with better media ratings on its own. But the fact that the agency has been empowered to look into rating systems for media content outside its area of authority (ex: movies, mobile media, online video) means that the agency might now be potentially placing greater pressure on media providers and distributors in those fields to “clean up” their content that same way that the agency pressures TV and radio broadcasters.

Similarly, the Act’s requirement that the agency look into blocking technologies on “wired, wireless, and Internet platform” is an open-ended invitation for the FCC to oversee content on platforms and mediums that the agency previously had no control over.  This clause on page 4 of the FCC’s NOI is telling in that regard:

The Senate Report also explains that the Act requires the Commission to consider technologies that may be appropriate across a variety of content distribution platforms “[i]n recognition of the fact that television content is currently being made available over the Internet and over mobile devices.” This language suggests that Congress intended that we focus on television content and the variety of platforms over which such content can be displayed and consider technologies capable of blocking inappropriate audio or video content transmitted as part of such programming.

In some ways, this makes all the sense in the world. The fact that Congress and the FCC have long been engaged in the regulation of content by its means of transmission to the viewer or listener has always been a bit silly. Basing regulation on what Randy May has called “techno-functional constructs” has resulted in a jurisprudential Twilight Zone in terms of speech regulation: identical words and images transmitted over one medium end up being regulated different than when transmitted over another. (See my article “Why Regulate Broadcasting?” for more discussion.)  Traditionally, this has meant broadcasting drew the short straw when it came to First Amendment treatment, with their analog signals or digital bits being deemed worthy of less First Amendment protection than the signals or bits transmitted over cable, satellites, fiber, or even print media.

As lawmakers increasingly realize that an age of media abundance and technological convergence has made those silly techno-functional constructs even more preposterous, we can expect Congress to introduce more legislation like the Child Safe Viewing Act and encourage FCC scrutiny of content regardless of its means of transmittal.  But such proposals raise a number of interesting questions, including:

(1) Does the FCC have the statutory authority to be regulating (or even investigating) speech on those other platforms?  What are the First Amendment issues at stake here?

(2) Assuming it has some authority, if the FCC finds that “advanced blocking controls” are not present, or do not work effectively, what remedies would the agency pursue?  (Can you say “universal ratings”?)

(3) Just what sort of resources will be required to allow the FCC to police all “wired, wireless, and Internet platforms”?

I don’t want to go overboard here and suggest that the agency is going to jump right onto the censorship bandwagon and start regulating everything under the sun thanks to S. 602.  Again, to be clear, the Child Safety View Act only authorizes the agency to study to market for advanced blocking tools.  It’s hard to argue against “the study” of anything.  But what concerns me here is the specter of regulatory creep. As I concluded in an earlier essay about the measure:

We have to hope that the FCC doesn’t use this “study” as an excuse to undermine existing voluntary parental controls and private content rating efforts or, worse yet, embark on an effort to impose new speech controls or mandatory rating and labeling schemes on media content. If they follow that path, a serious First Amendment battle awaits.

Is that a valid concern, or am I over-stating things? Well, consider this.  Between pages 15-20 of the NOI, in a section on”Content Available over the Internet,” the agency poses dozens of questions about new digital technologies and services including: Hulu,YouTube, TiVo, iTunes and the iPhone, iPod and Mp3 players, peer-to-peer networks, wi-fi hot spots, Teen Second Life, and even video game consoles.  In fact, on page 16 of the NOI the agency asks: “What impact, if any, does the interface between video gaming systems and the Internet have on children’s online safety?”  It’s certainly a legitimate question for public debate, but is anyone else besides me uncomfortable with the fact that the Federal Communications Commission is asking it?  If, like me, you’ve spent you’re life fighting over-zealous FCC content regulation, then you might appreciate my concern.  Will the FCC soon be fielding complaints about the next installment of “Grand Theft Auto”?  Are uncensored “Saturday Night Live” clips on Hulu suddenly going to be subjected to broadcast TV-like indecency fines?  Is my iTunes podcast fair game for federal regulators?  Again, I hope none of this paranoia is justified, but I think there are reasons to be concerned.

The more constructive path forward for the FCC is to help highlight the useful tools and rating systems already on the market and encourage parents to take advantage of them if they feel so compelled. As FCC Commissioner Jonathan Adelstein noted in his statement about the NOI, “Blocking technology strikes a balance beneficial to all parties involved: it allows us to protect our children while respecting the creative and expressive rights of content creators.”  Indeed, as I have argued in my book on “Parental Controls and Online Child Protection:”

The ideal state of affairs, therefore, would be a nation of fully empowered parents who have the ability to perfectly tailor their family’s media consumption habits to their specific values and preferences. Specifically, parents or guardians would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families.

If the FCC can help build public awareness about such user-empowerment tools, that’s wonderful. I’m all for that. But it’s what the agency might do above and beyond that which has my spider sense tingling.

Anyway, you can read the bill and the NOI below and judge for yourself. [Note: The version of S. 602 below is the version passed by the Senate. The final version agreed to by the House stripped out Sec. 2, the findings section, and Sec. 3 became the new Sec. 2. For some reason, the GPO never produced a final PDF version of the bill as passed by the full Congress. If someone else has it, please forward it to me so I can post it here.]

S602 Child Safe Viewing Act http://d.scribd.com/ScribdViewer.swf?document_id=12963165&access_key=key-1uqqvj45uwpa1z9qihzq&page=1&version=1&viewMode=list

FCC NOI for Child Safe Viewing Act (MB 09-26) http://d.scribd.com/ScribdViewer.swf?document_id=12963105&access_key=key-12ctxrbeq6b7cuh98m6t&page=1&version=1&viewMode=list

Ben Edelman of the Harvard Business School has just released an interesting new study in the Journal of Economic Perspectives entitled, “Red Light States: Who Buys Online Adult Entertainment?”  Using data he obtained from a top-10 seller of adult entertainment, Edelman examined adult website subscriptions on the zip code level and found that conservatives seem to be every bit as interested in pornography as liberals. In fact, “Subscriptions [to adult entertainment sites] are slightly more prevalent in states that have enacted conservative legislation on sexuality” and “subscriptions are also more prevalent in states where surveys indicate conservative positions on religion, gender roles, and sexuality.”  He also finds that:

In states where more people agree that “Even today miracles are performed by the power of God” and “I never doubt the existence of God,” there are more subscriptions to this service.  Subscriptions are also more prevalent in states where more people agree that “I have old-fashioned values about family and marriage” and “AIDS might be God’s punishment for immoral sexual behavior.”

On the whole, these adult entertainment subscription patterns show a remarkable consistency: all but eleven states have between two and three subscribers to this service per thousand broadband households, and all but four have between 1.5 and 3.5. With interest in online adult entertainment relatively constant across regions, there’s little sign of a major divide.

But it’s not just Internet porn where we see this trend at work.  As I noted in my law review article, “Why Regulate Broadcasting?” we’ve seen a similar trend at work with television. When you look at some of the TV shows that conservatives and religious groups gripe most about, you might be surprised to know that it is conservatives who make those shows as popular as they are!

As Bill Carter of the New York Times reported in a 2004 article, “Many Who Voted for ‘Values’ Still Like Their Television Sin,” Nielsen ratings data shows that in many Republican-leaning “red state” markets, such programs garner higher ratings than in many Democratic-leaning “blue states.” For example, in the counties that constitute the greater Atlanta television market, ABC’s dramatic comedy “Desperate Housewives” was the top-rated show even though nearly 58 percent of voters in those counties voted for President Bush.  Similarly, in the traditionally conservative Salt Lake City market, where President Bush captured over 72 percent of the vote, the top four shows were “C.S.I.,” “C.S.I. Miami,” “E.R.,” and “Desperate Housewives.”

Likewise, in a 2004 column about “The Great Indecency Hoax,”  NY Times columnist Frank Rich noted that the same trend holds in conservative Oklahoma City, where “Desperate Housewives” is more popular than it is in Los Angeles, as well as Kansas City where the show is bigger than it is in New York City.  Rich quoted sociologist Herbert Gans who explained the phenomenon as follows: “For some people it’s a case of ‘I am moral therefore I can watch the most immoral show.'”

Such findings call into question the logic of traditional “community standards”-based regulatory efforts. Indeed, it is unclear how lawmakers can determine the relevant “community standard” for purposes of speech and content regulation when some of the most conservative communities in America are downloading as much porn as Edelman’s study finds, or when conservatives are watching smutty TV in greater numbers than liberals do.

The better approach, as I’ve argued here before, is to replace “community standards” with “household standards.”  That is, it would be optimal if public policy decisions regarding content took into account the extraordinary diversity of citizen / household tastes and left the ultimate decision about acceptable programming to them.  That’s especially the case in light of the fact that less than 32% of U.S. households have any children in them, and those homes that do have children have plenty of tools and methods at their disposal to control objectionable content. Let’s empower parents to make decisions for themselves and their families so that Uncle Sam doesn’t need to play the role of national nanny for all of us.

• Edelman’s mention of porn consumption in Utah reminded me of this passage from Jeff Rosen’s 2004 essay on “The End of Obscenity” (which I discussed in greater detail here):

  three years ago, when a local video retailer in Utah was prosecuted for peddling hard-core pornography, he successfully argued that his products were consistent with what his neighbors were watching on pay-per-view: in an age of nationally distributed hotel pornography, there was little difference between the consumption habits of hotel guests in Salt Lake City or Las Vegas. Pornography is everywhere, suggesting that there is no national consensus against it and no vast disparity from one locale to another.

  Seems that those Utah residents are a horny bunch!  Maybe their new motto should be, “What happens in Utah, stays in Utah.”

I’ve got a new PFF paper out today entitled, “Who Needs Parental Controls? Assessing the Relevant Market for Parental Control Technologies.” In this piece, I address the argument made by some media and Internet critics who say that government intervention (perhaps even censorship) may be necessary because parental control technologies are not widely utilized by most Americans. But, as I note in the paper, the question that these critics always fail to ask is: How many homes really need parental control technologies? The answer: Far fewer than you think. Indeed, the relevant universe of potential parental control users is actually quite limited.

I find that the percentage of homes that might need parental control technologies is certainly no greater than the 32% of U.S. households with children in them. Moreover, the relevant universe of potential parental control users is likely much less than that because households with very young children or older teens often have little need for parental control technologies. Finally, some households do not utilize parental control technologies because they rely on alternative methods of controlling media content and access in the home, such as household media rules. Consequently, policymakers should not premise regulatory proposals upon the limited overall “take-up” rate for parental control tools since only a small percentage of homes might actually need or want them.

If you don’t care to read the whole nerdy thing, I’ve created this short video summarizing the major findings of the paper.

And the document is embedded below the fold in a Scribd reader. Who Needs Parental Controls PFF http://d.scribd.com/ScribdViewer.swf?document_id=12864194&access_key=key-4p1wl0cam0e5z4oxyfm&page=1&version=1&viewMode=list

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

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

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

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

a book review by Adam D. Thierer of

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

City Journal 10 October 2008

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Each year the Entertainment Software Association (ESA), which represents the video game and computer game industry, produces a great little report entitled “Essential Facts About the Computer and Video Game Industry.” The 2008 edition is out and it has some interesting stats:

• 65 percent of American households play computer and video games;
• 38 percent of American homes have a video game console;
• The average game player is 35 years old;
• One out of four gamers are over age 50;
• Women age 18 or older represent a significantly greater portion of the game-playing population (33 percent) than boys age 17 or younger (18 percent); and,
• 41 percent of Americans expect to purchase one or more games this year.

Those findings make it clear that gaming really has gone mainstream. As I noted in an essay earlier this week, “gaming is now fully integrated into the fabric of my life and the lives of my children. It has become one of the most enjoyable media experiences for my generation and the generation of kids that we are raising.”

Some other important stats that have relevance for debates about public policy:

• 94 percent of parents are present when games are purchased or rented;
• 88 percent of parents report always or sometimes monitoring the games their children play; and,
• 63 percent of parents believe games are a positive part of their children’s lives.

Those are impressive numbers, and it makes it clear, as I have argued before, that parents are parenting! (And that reflects what is going on for television as well).