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.

Today, President Bush signed S. 602, “The Child Safe Viewing Act.”(CNet story here). The measure requires the Federal Communications Commission (FCC) to conduct an inquiry to examine the availability of, and methods of encouraging the use of, advanced blocking technologies that help parents protect their children from transmitted video and audio programming that the parents determine to be indecent or objectionable. The FCC has 270 days to complete the report.

I wrote about the measure more extensively when it passed the Senate back in October. As I noted in then, the measure was modified slightly when it passed through the Commerce Committee last year, but it still contains some provision that could be problematic. Specifically, as part of the FCC’s required study, the bill commands the FCC to “consider advanced blocking technologies” that:

• may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms;
• operate independently of ratings pre-assigned by the creator of such video or audio programming.

Those two provisions are cause for concern since they raise the specter of what I referred to as “convergence-era content regulation” in a PFF paper about the bill last year. It does so in two ways. First, it opens the door to FCC bureaucrats investigating media content controls for wireless and Internet platforms, something it has never been empowered to do before. Second, by specifying that these new advanced content blocking technologies should “operate independently of ratings pre-assigned by the creator,” the law 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.

Of course, I could be overplaying these fears. The FCC might just stay true to its required role to act as an independent agency that can objectively evaluate the market and produce a balanced report on the issue. Then again, like so much else on this front, the entire endeavor could become a politicized mess and another exercise in media-bashing, complete with calls for greater regulation “for the children.”

Bottom line: 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.

P.S. If the FCC wants to save some time and some taxpayer dollars, I am happy to send over free copies of my big Parental Controls & Online Child Safety report to all FCC officials. Not to sound arrogant, but I believe my report already accomplishes most of what the bill requires. But I won’t hold my breath waiting for the FCC to call.

[Note: The Washington Watch page for S. 602 is here.]

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

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

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

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

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

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

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

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

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

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

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

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

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

Further reading / sources:

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

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

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

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

Along with my friends John Morris and Sophia Cope of the Center for Democracy & Technology, I have just submitted an amicus brief to the Supreme Court in the potentially historic free speech case FCC v. Fox, which will be heard in November.

[Reminder: The FCC v. Fox case is the indecency case involving the FCC’s new policy for “fleeting expletives.” I wrote about the Second Circuit Court of Appeals decision here. The full decision is here. By contrast, the so-called “Janet Jackson case” — CBS v. FCC — took place in the Third Circuit Court of Appeals and that court recently handed down a decision that also went against the FCC. I wrote about the Third Circuit’s decision here.]

The FCC v. Fox case could become the most important First Amendment-related Supreme Court case since FCC v. Pacifica Foundation, which just turned 30 years old last month. Of course, it could be that the Supreme Court simply sticks to the procedural questions regarding whether the FCC moved too far, too fast in reversing it’s long-standing policy of restraint regarding “fleeting expletives.” That’s essentially what the Second Circuit did. On the other hand, the Supremes might reach the substantive First Amendment issues tied up in the Pacifica case. We just won’t know for sure until the case is handed down.

Regardless, in the joint CDT-PFF amicus brief filed today, we argue that the FCC has both gone too far procedurally and that “the time is rapidly approaching for this Court to find that broadcast, like the Internet and other means of mass communication, ‘is entitled to the highest protection from government intrusion’ and that there is no longer a factual ‘basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.'” Citing Reno v. ACLU, 521 U.S. at 863, 870.”

A more detailed summary of our argument follows below. Our brief contends that the “pervasiveness rationale,” which is the basis of the FCC’s authority to regulate broadcast programming, is being challenged by technological convergence, the proliferation of new media platforms, and the widespread availability of parental control technologies. Video content available over broadcast television is available over a variety of other platforms, such as the Internet and mobile devices, and an increasing number of households subscribe to satellite or cable video services. “With broadcast television being just one of the myriad of ways that people can access lawful content (including indecent content), it no longer makes sense from a constitutional or policy perspective to give broadcast speech less First Amendment protection,” we argue.

Parental controls, such as the V-Chip and set-top box controls, allow parents to block content they deem offensive or inappropriate. Better yet, the rise of VCRs, DVD recorders, video on demand, and digital video recorders means that parents can tailor media consumption to their specific needs and values. Those tools are widely available and provide a less restrictive alternative to government regulation. As a result, the FCC can no longer justify broadcast television content censorship on “pervasiveness” grounds. [I have written much more about that point here, here and here.]

Our joint brief also states that complaint data the FCC cites as justification for the expansion of indecency enforcement, has been inflated through accounting changes. These changes in the way the complaints are counted, which were only instituted for indecency complaints, are in violation of the APA. These complaints, mostly generated by a single advocacy group, cannot be a substitute for an analysis of “community standards” and essentially represent a “heckler’s veto” that violates the First Amendment rights of other viewers.

The brief also cites the Commission’s inconsistent analysis of what it deems “indecent” as a violation of both the First Amendment rights of broadcasters and the APA. The inconsistency in what the FCC finds as indecent has a chilling effect on the free expression of content providers and provides inadequate guidance to broadcasters, which is required under FCC statutes.

The CDT-PFF brief can be found online here and I have also embedded the document below via the Scribd reader. [And those interested in this case might also be interested my recent law review article: “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age.”]

Incidentally, other briefs that have been filed in the matter can be found here. And, last month, I wrote about how personally troubled I was about the lack of support from liberals who have already filed in this case. See: “Liberals Abandoning the First Amendment, Part 3: The Fox Case.”

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

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

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

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

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

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

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