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=

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’m intrigued by this new bill that Rep. Peter King has introduced to prevent video voyeurism. H.R. 414, the “Camera Phone Predator Alert Act” finds that “children and adolescents have been exploited by photographs taken in dressing rooms and public places with the use of a camera phone.”  To remedy this problem, King’s “Phone Predator Alert” bill would require that:

any mobile phone containing a digital camera that is manufactured for sale in the United States shall sound a tone or other sound audible within a reasonable radius of the phone whenever a photograph is taken with the camera in such phone. A mobile phone manufactured after such date shall not be equipped with a means of disabling or silencing such tone or sound.

In other words, cameras would have to get noisy again!  Old timers will recall the days when our cameras were noisier than a box of rocks. Today’s digital cameras and camera phones, by contrast, are increasingly silent, but that also opens up the door to potential abuse by some creeps out there. While I don’t believe there’s evidence pointing to a national epidemic of digital voyeurism, there’s no doubt that some people — including many youngsters — are having their privacy invaded in this fashion.

I find King’s solution at once to be both ingenious and futile. It’s ingenious in that, if we could truly force it upon everyone, it might actually go along way towards solving this problem. The noisy camera would again act as the prime deterrent to such an act.

It’s futile, however, in that the real bad guys would likely get around the law pretty quickly. After all, if they are really determined to try to surreptitiously snap some shots in a locker room or elsewhere, it’s likely that they’ll quickly find a way to hack the device and disable the noise-maker. (By the way, exactly how loud do will our phones need to be to comply with the law?) Moreover, the market for old, unregulated phones would grow longer and a black market of illegal devices would likely spring up, too. (However, Wired reports that such a law is already in place in Japan, so it would be interesting to see how it is working out there.)

That being said, I don’t really have a better solution than Rep. King.  There are already laws on the books dealing with invasion of privacy that can be tapped to deal with this problem, but there are obvious problems going that route in terms of time and expense. The damage is already done once the photo is snapped. And usually you can’t find the creep who originally took the shot after it has been around the Internet a zillion times.

Self-regulation in semi-public spaces might help. My gym has clearly posted policies about where mobile devices can be used and makes it clear they are not to be used in the locker rooms. That’s a good first step that others should follow to help protect the privacy of people in areas where they are likely to be disrobing.  And schools can do the same thing for their locker rooms. Of course, that’s still going to be difficult to enforce. There’s just no easy solution here.

[Further discussion over at Washington Watch.com]