parental controls and online content protection-version 4.0 (adam thierer - pff)

Parental Controls &

Online Child Protection: A Survey of Tools & Methods

Version 4.0 Summer 2009

Adam Thierer The Progress & Freedom Foundation

(www.PFF.org) Washington, D.C.

For the most recent version of this report, please visit: www.pff.org/parentalcontrols

PFF Special Report

http://www.pff.org/

http://www.pff.org/parentalcontrols

The Progress & Freedom Foundation

Parental Controls & Online Child Protection (Version 4.0) 2

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TABLE OF CONTENTS

I. Introduction: Why Parental Controls Are Important .............................................. 11

A. A Broad View of Parental Controls ........................................................... 14

B. Parental Controls and the Law .................................................................. 18

C. Parental Controls, Personal Responsibility, and a Free Society ............... 20

II. Household Media Rules and Informal Parental Control Methods........................ 25

A. Household Media Consumption Rules ..................................................... 26

B. “What Rules” & the Importance of a Good (Media) Diet ......................... 29

C. Teaching Good Etiquette in a Multimedia World ..................................... 33

D. Third-Party Pressure, Ratings, and Advice ................................................ 35

E. The Ultimate Parental Control: The Power of the Purse .......................... 42

III. Ratings Systems and Technological Controls for Various Media .......................... 45

A. How Many Homes Really Need Parental Controls? ................................. 45

B. Understanding the Role and Limits of Parental Controls ......................... 52

C. Television .................................................................................................. 57

D. Movies ....................................................................................................... 77

E. Music and Radio ........................................................................................ 81

F. Video Games ............................................................................................. 86

G. Wireless and Mobile Media .................................................................... 103

H. Internet, Computing, and Social Networking ......................................... 113

IV. The Importance of Media Literacy and Consumer Education ............................ 145

A. Why Media Literacy Is Important ........................................................... 145

B. Promoting Media Literacy and Consumer Education ............................. 146

C. Private or Industry-Led Consumer Education Efforts ............................. 157

D. A Voluntary Code of Conduct / Industry Pledge to Parents ................... 160

V. Getting Serious about Online Child Abuse ........................................................ 169

A. Putting the Problem in Perspective ........................................................ 169

B. Wrong Solution: Mandatory Age Verification ........................................ 177

C. Wrong Solution: Extensive Data Retention Mandates ........................... 190

D. Wrong Solution: Increased Intermediary Liability .................................. 193

E. Right Solutions: Education, Empowerment, and Enforcement .............. 195

VI. Conclusion ....................................................................................................... 201

VII. About the Author ............................................................................................ 205



VIII. Appendix: Thoughts on Mandatory Controls, Restrictive Defaults and “Universal” Ratings ................................................................................................................... 207

A. Why Mandatory Controls or Defaults Will Backfire ............................... 208

B. Why Mandating Universal Ratings Would Be a Mistake ........................ 215

X. Appendix: Review of Five Online Safety Task Forces......................................... 223

XII. Appendix: Glossary of Key Terms, Laws & Cases .............................................. 241

XIV. Related Progress & Freedom Foundation Publications ..................................... 251



LIST OF EXHIBITS Exhibit 1: Teens & Their Technology Use, 2009 ............................................................................ 15

Exhibit 2: A Layered Approach to Parental Controls and Child Protection .................................. 23

Exhibit 3: More Families Using Household Media Rules ............................................................... 29

Exhibit 4: Sample “Media Diet” of Children’s Television Programming ........................................ 31

Exhibit 5: The Media Food Pyramid: Crafting a Balanced (Media) Diet ........................................ 32

Exhibit 6: Independent Media Reviews and Rating Systems ........................................................ 40

Exhibit 7: Industry-Supported Efforts that Highlight Parental Controls ........................................ 41

Exhibit 8: Formula for Calculating the Percentage of Households without Children.................... 47

Exhibit 9: Households without Children Calculation for 2007 ...................................................... 47

Exhibit 10: Breakdown of U.S. Households With and Without Children ....................................... 48

Exhibit 11: Steady Decline of Homes With Children Present ........................................................ 48

Exhibit 12: Ages When Parental Controls Most Likely Needed ..................................................... 50

Exhibit 13: Who Needs Parental Controls? ................................................................................... 52

Exhibit 14: Internet Education Foundation’s Ratings Equivalency Matrix ................................... 55

Exhibit 15: TV Ratings .................................................................................................................... 58

Exhibit 16: TV Content Descriptors ............................................................................................... 58

Exhibit 17: “TheTVBoss.org” Website ........................................................................................... 60

Exhibit 18: NCTA’s “ControlYourTV.org” Website ......................................................................... 62

Exhibit 19: The “Weemote” ........................................................................................................... 65

Exhibit 20: VCR & DVD Player Usage ............................................................................................. 67

Exhibit 21: Projected Growth of DVRs ........................................................................................... 68

Exhibit 22: DVR Sales & Prices ....................................................................................................... 69

Exhibit 23: Projected Growth of VOD ............................................................................................ 70

Exhibit 24: Projected Average Prices for Selected Video Technologies ........................................ 72

Exhibit 25: Educational / Entertainment Viewing Options for Children ....................................... 74

Exhibit 26: The MPAA Movie Rating System ................................................................................. 77

Exhibit 27: MPAA’s “Red Carpet Ratings” Service ......................................................................... 78

Exhibit 28: The RIAA’s Explicit Content Parental Advisory Label .................................................. 82

Exhibit 29: Apple iTunes Parental Controls ................................................................................... 83

Exhibit 30: ESRB Video Game Rating Categories ........................................................................... 87



Exhibit 31: ESRB Content Descriptors ............................................................................................ 88

Exhibit 32: Parental Awareness & Use of Video Game Ratings is High ......................................... 89

Exhibit 33: Video Game Ratings By Year ....................................................................................... 90

Exhibit 34: ESRB Ads and Promotional Materials .......................................................................... 91

Exhibit 35: FTC “Secret Shopper” Surveys Show Improved Retailer Enforcement ....................... 94

Exhibit 36: Microsoft Xbox Parental Control Set-Up Menus ......................................................... 95

Exhibit 37: GetGameSmart.com .................................................................................................... 97

Exhibit 38: Microsoft Xbox Chat Blocking Controls ....................................................................... 98

Exhibit 39: Books Featuring Advice about Video Games and Kids .............................................. 100

Exhibit 40: Coin-Operated Games Rating System ....................................................................... 101

Exhibit 41: Snapshot of Teen Use of Mobile Media in 2009 ....................................................... 104

Exhibit 42: Verizon Wireless Content Rating System .................................................................. 106

Exhibit 43: Gregory Smith’s 8-Step Plan to Protect Children from Online Risks ......................... 113

Exhibit 44: Various Online Safety “Metasites” ............................................................................ 116

Exhibit 45: Books about Online Safety and Sensible Media Use ................................................. 119

Exhibit 46: Internet Filtering and Monitoring Software for PCs .................................................. 122

Exhibit 47: Filter and Monitoring Software Review Sites ............................................................ 123

Exhibit 48: Internet Security and Parental Control Websites for Major ISPs and Broadband

Operators..................................................................................................................................... 124

Exhibit 49: Major ISP Online Safety Sites .................................................................................... 125

Exhibit 50: Vista Operating System Parental Controls ................................................................ 127

Exhibit 51: “Glubble” for the Firefox Web Browser .................................................................... 128

Exhibit 52: KidZui Web Browser .................................................................................................. 129

Exhibit 53: “Safe Search” Filtering Tools ..................................................................................... 131

Exhibit 54: Kid-Friendly Internet Search Engines and Web Portals ............................................. 132

Exhibit 55: Child- and Teen-Oriented Websites & Virtual Worlds .............................................. 133

Exhibit 56: A Snapshot of Teen Online Social Networking Activity, 2006 .................................. 135

Exhibit 57: MySpace.com’s Safety & Security Website ............................................................... 137

Exhibit 58: You Tube “Abuse & Safety Help Center” ................................................................... 140

Exhibit 59: Virginia’s “Guidelines and Resources for Internet Safety in Schools” ....................... 146

Exhibit 60: Virginia’s Model Bill for Internet Safety Instruction .................................................. 147

Exhibit 61: Media Literacy Organizations or Efforts .................................................................... 148



Exhibit 62: NCTA’s “Cable in the Classroom” .............................................................................. 149

Exhibit 63: The Federal Government’s “OnGuardOnline.gov” Website ..................................... 153

Exhibit 64: Digital Media Provider Voluntary Code of Conduct .................................................. 162

Exhibit 65: NCTA’s “Point Smart. Click Safe” Website ................................................................. 164

Exhibit 66: What Major Child Safety Task Forces Said about Age Verification ........................... 178

Exhibit 67: COPA Commission Recommendations ...................................................................... 228

Exhibit 68: “Point Smart. Click Safe.” Recommendations for Best Practice ................................ 236



— Author’s Note —

In this report, I have attempted to provide a comprehensive survey of the wide variety of parental control and online child protection tools and methods that exist today. I have undoubtedly missed some things, however. I encourage readers to send me suggestions about what should be included in subsequent editions of this report. I continue to publish frequent updates to this report (available online at www.pff.org/parentalcontrols) to ensure that I have painted the most thorough, up-to-date picture of the amazingly diverse universe of parental control tools and methods.

Second, there are many books and studies that deal with how best to raise your children and the role media and technology should (or should not) play in their lives.† This report takes a different approach. Even though the report contains a variety of recommendations and helpful tips for parents, I have done my best to avoid a “preachy” tone because I believe that every family will bring different values and approaches to the challenging task of raising children and dealing with unwanted media exposure. My goal here is to provide parents with an exhaustive inventory of the tools and methods at their disposal that can assist them in that effort, however they choose to go about it.

— Adam Thierer‡

† Some of my personal favorites include: Sharon Miller Cindrich, e-Parenting: Keeping Up with Your

Tech-Savvy Kids (New York: Random House Reference, 2007), www.pluggedinparent.com; Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), www.cskcst.com; Larry Magid and Anne Collier, MySpace Unraveled: A Parent’s Guide to Teen Social Networking (Berkeley, CA: Peachtree Press, 2007), www.myspaceunraveled.com; Lenore Skenazy, Free-Range Kids: Giving Our Children the Freedom We Had Without Going Nuts with Worry (San Francisco, CA: Jossey-Bass, 2009), http://freerangekids.wordpress.com.

‡ Adam Thierer ([email protected]) is a senior fellow with The Progress & Freedom Foundation and the

director of PFF’s Center for Digital Media Freedom. The views expressed in this report are his own.

http://www.pff.org/parentalcontrols

http://www.pluggedinparent.com/

http://www.cskcst.com/

http://www.myspaceunraveled.com/

http://freerangekids.wordpress.com/

mailto:[email protected]



“Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is

best positioned to make these choices for us.”

U.S. Supreme Court, U.S. v. Playboy Entertainment (2000)



I. Introduction: Why Parental Controls Are Important

What effect does media exposure have on our children? That question has

generated heated debates from one generation to the next.1 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.2 Parents, educators, academics, social scientists, media pundits, and many others all offer their opinions, but rarely is any consensus reached.

Inevitably, these social and cultural debates become political debates, especially

if a full-blown “techno-panic” ensues.3 Indeed, each of the media technologies or outlets mentioned above was either regulated or threatened with regulation at some

1 “Parents, in their desire to protect and control their children, tend to oppose new cultural products

and influences. For the same reason that the young welcome the culture of their day and age, the older generation usually opposes it.” Tyler Cowen, In Praise of Commercial Culture (Cambridge, MA: Harvard University Press, 1998), at 185.

2 As Jason Illian, author of MySpace, MyKids notes: “Every time a new medium is introduced, it garners

attention. And when problems arise, we are quick to place blame on the new technology, when in reality, the same problems we have always had are simply revealing themselves in new ways.” Jason Illian, MySpace, MyKids (Eugene, OR: Harvest House Publishers, 2007), at 19-20. Similarly, Henry Jenkins, author of Fans, Bloggers, and Gamers, argues that, “Even a cursory glance at the history of communications technology shows a recurring pattern. Urban youths become adopters of new media, carving out a social space that serves their own subcultural needs, which immediately becomes the subject of adult concern. A single tragedy sparks a full-scale moral panic, which governments then leverage to their own advantage.” Henry Jenkins, Fans, Bloggers, and Gamers (New York: New York University Press, 2006), at 223. Finally, a recent report by the U.K. government noted that “New media are often met by public concern about their impact on society and anxiety and polarisation of the debate can lead to emotive calls for action.” Safer Children in a Digital World, Byron Review on Children and New Technology, Department for Children, Schools and Families, [U.K.] task force report, March 2008, at 3, www.dfes.gov.uk/byronreview/pdfs/Final%20Report%20Bookmarked.pdf. For other examples, see Tom Standage, Those Darn Kids and Their Darn New Technology, Wired, April 2006, at 114-5; James A. Monroe, Hellfire Nation: The Politics of Sin in American History (New Haven, CT: Yale University Press, 2003).

3 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; Anne Collier, Why Techopanics are Bad, Net Family News, April 23, 2009, www.netfamilynews.org/2009/04/why-technopanics-are-bad.html; Wade Roush, The Moral Panic over Social Networking Sites, Technology Review, Aug. 7, 2006, www.technologyreview.com/communications/17266; 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, The 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.

http://www.dfes.gov.uk/byronreview/pdfs/Final%20Report%20Bookmarked.pdf

http://www.uic.edu/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/2152/1966

http://www.netfamilynews.org/2009/04/why-technopanics-are-bad.html

http://www.netfamilynews.org/2009/04/why-technopanics-are-bad.html

http://www.technologyreview.com/communications/17266

http://www.alec.org/am/pdf/Inside_July09.pdf

http://techliberation.com/2008/07/10/technopanics-and-the-great-social-networking-scare



point in its history. And the cycle continues. For example, 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,4 cable and satellite television content,5 video games,6 the Internet,7 social networking sites,8 and other types of online content. Many of the policymakers and groups supporting these efforts argue that parents are essentially powerless to stop the flow of objectionable media content in their homes. Therefore, in the name of protecting children, they argue government regulation is necessary.

For example, during a 1996 conference on media and culture, Sen. Joseph Lieberman (I-CT), one of the most vociferous media critics in Congress, succinctly articulated this “parents-are-powerless” concern:

Parents and families are being cut out of the picture. This is to me the real heart of the crisis. The sheer power and pervasiveness of the media is accelerating the breakdown of the family, and depriving parents of their ability to shape the development of their children, to instill their values, and to exercise the authority that we as a society have treated as one of our most precious rights.9

4

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

5 See Adam Thierer, The Progress & Freedom Foundation, Thinking Seriously about Cable and Satellite

Censorship: An Informal Analysis of S. 616, The Rockefeller-Hutchison Bill, Progress on Point no. 12.5, April 2005, www.pff.org/issues-pubs/pops/pop12.6cablecensorship.pdf; Adam Thierer, The Progress & Freedom Foundation, Moral and Philosophical Aspects of the Debate over A La Carte Regulation, Progress Snapshot 1.23, Dec. 2005, www.pff.org/issues-pubs/ps/ps1.23alacarte.pdf; Adam Thierer, The Progress & Freedom Foundation, “Kid-Friendly” Tiering Mandates: More Government Nannyism for Cable TV, Progress Snapshot 1.2, May 2005, www.pff.org/issues-pubs/ps/ps1.2familyfriendlytiering.pdf

6 See 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; 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

7 See Adam Thierer, The Progress & Freedom Foundation, Congress, Content Regulation, and Child

Protection: The Expanding Legislative Agenda, Progress Snapshot 4.4, Feb. 6, 2008, www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html; Adam Thierer, The Progress & Freedom Foundation, Saving Online Free Speech: A Voluntary Code of Conduct for Internet Operators, Progress Snapshot 2.19, Aug. 2006, www.pff.org/issues-pubs/ps/2006/ps_2.19_conduct_net_ops.pdf

8 See Adam Thierer, The Progress & Freedom Foundation, Is MySpace the Government’s Space? Progress

Snapshot 2.16, June 2006, http://www.pff.org/issues-pubs/ps/2006/ps_2.16_myspace.pdf

9 Senator Joseph Lieberman, “Opening Remarks of Senator Joseph Lieberman” in Sex and Hollywood:

Should There Be a Government Role (Menlo Park, CA: Kaiser Family Foundation, 1996), at 73-4.

http://www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf

http://www.pff.org/issues-pubs/pops/pop12.6cablecensorship.pdf

http://www.pff.org/issues-pubs/ps/ps1.23alacarte.pdf

http://www.pff.org/issues-pubs/ps/ps1.2familyfriendlytiering.pdf

http://www.pff.org/issues-pubs/ps/ps1.2familyfriendlytiering.pdf

http://www.pff.org/issues-pubs/pops/pop13.7videogames.pdf


http://blog.pff.org/archives/2009/01/video_games_and_moral_panic.html

http://www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html

http://www.pff.org/issues-pubs/ps/2006/ps_2.19_conduct_net_ops.pdf

http://www.pff.org/issues-pubs/ps/2006/ps_2.16_myspace.pdf




To counter this trend, Sen. Lieberman continued, “we may have to consider more restrictions on the ways entertainment products are distributed.”10 This same concern continues to motivate calls for government regulation or oversight of media today. For example, when the Federal Communications Commission (FCC) launched a Notice of Inquiry regarding implementation of the “Child Safe Viewing Act of 2007,” FCC Commissioner Jonathan Adelstein argued that:

Parents across the country are locked in a near constant struggle to protect our children from a barrage of media programming filled with content they consider inappropriate. Too many parents feel like they are losing control, and they are frustrated by a relentless march of coarse material they view as too violent, too sexual, too commercial or too unhealthy for their children.11

Importantly, however, in his 1996 address, Sen. Lieberman also noted that there

may be other constructive ways of dealing with this problem before resorting to government regulation. For example, he argued that the power of public pressure and shame—from both the general public and policymakers—could influence the character of modern media. More importantly, Sen. Lieberman discussed the potential for increased information and parental empowerment to change matters for the better:

We should also continue to push the television industry to offer the public more information with a voluntary rating system, as we have with the V-chip legislation. The advantage of a television ratings system is that, not only will it provide parents with fair warning, it can empower them to be more informed and active consumers. It can also trigger a whole world of new technologies to shield children from the excesses of our cultural marketplace without negatively affecting the adult viewing audience.12 Sen. Lieberman’s predictions have proven quite prescient, and not just for

television. The vision he articulated—that of a more fully informed and empowered citizenry—is, in many ways, the world we find ourselves in today.

Indeed, as this study will illustrate, 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

10

Id., at 76.

11 Statement of FCC Commissioner Jonathan Adelstein, Regarding Implementation of the Child Safe

Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, March 2, 2009, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-14A3.pdf

12 Id., at 75.

http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-14A3.pdf




children.13 As Sen. Lieberman hoped, these new tools and rating systems are providing parents with ample “fair warning” about media content and simultaneously making it easier for them to “shield children from the excesses of our cultural marketplace.” Finally, as Lieberman also hoped, this is being accomplished “without negatively affecting the adult viewing audience.”

In other words, these new tools and rating systems are helping to reverse the trends Sen. Lieberman and others feared. Consistent with the desires Sen. Lieberman articulated, new parental control tools are empowering parents “to shape the development of their children, to instill their values, and to exercise the authority that we as a society have treated as one of our most precious rights.”

This study will document the many tools and techniques that parents now have

at their disposal to better control media content and raise their children as they see fit. That is not to say that media and communications technologies don’t continue to play a major role in our society and culture.14 But, as will be shown throughout this report, parents have been empowered with tools, controls, strategies, and information, that can help them devise and then enforce a media plan for their families that is in line with their own values. A. A Broad View of Parental Controls

Parental controls will be defined broadly throughout this report to include any tool or method that parents, guardians or schools might use to restrict or tailor the media content that children consume. The “restrict or tailor” qualifier is important. Too often, parental controls are viewed as being merely restrictive in character. That is, they are used to block or filter media content. That is certainly one important use for parental controls; perhaps even the most important use for many families. But content tailoring is an equally important part of the parental controls mix.

13

And the pace of technological innovation continues at an impressive pace. As the Microsoft Corporation pointed out in comments to the FCC in April 2009: “*M+any technologies that were mere concepts just a short time ago are already available in the marketplace. Thus, parents have several advanced options today to select the content that is appropriate for their families, and those options continue to develop and evolve.” Comments of Microsoft Corp., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 16-17, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213768

14 Jacqui Cheng, Report: Kids’ Use of Tech Growing Exponentially, Ars Technica, June 10, 2009,

http://arstechnica.com/gadgets/news/2009/06/report-kids-use-of-tech-growing-exponentially.ars

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.

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.









acceptable in their homes and

http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213768

http://arstechnica.com/gadgets/news/2009/06/report-kids-use-of-tech-growing-exponentially.ars



Content tailoring refers to parents’ use of any tool or method that enables their families to see, hear, or consume content they would regard as “better” (i.e., more educational, enriching, or ethical) for them. This is perhaps the most exciting part of the parental controls story today. Parental control tools and methods exist now that make it easier than ever before to tailor media content and consumption to a family’s specific needs and desires. For example, as the Federal Communications Commission (FCC) noted in a 2006 report about the video marketplace, “through the use of advanced set-top boxes and digital video recorders, and the introduction of new mobile video services, consumers are now able to maintain more control over what, when, and how they receive information.”15

Exhibit 1: Teens & Their Technology Use, 2009

Regardless of which approach to media that parents prefer, this study will

document the many tools and methods at their disposal to restrict or tailor media content in the lives and their lives of their children. Section I highlights the various formal and informal household media rules that parents can use to restrict or tailor media to their preferences or values. Section III will then provide a sector-by-sector

15

Federal Communications Commission, Twelfth Annual Video Competition Report, MB Docket No. 05-255, Feb. 10, 2006, at 4, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-06-11A1.pdf




survey of the rating systems and technological tools available to parents if they wish to take advantage of more stringent controls.

This study will also discuss online child protection efforts, primarily in Section V.

Many parental control technologies help parents shield their children from potentially objectionable media content, including Internet content. But the debate about online child protection has another, more serious, dimension because of concerns about child pornography or child predation. I refer to this problem as the “bad-people” problem, vis-à-vis the “bad-pictures” (objectionable, but legal media content) problem.

All too often, the bad-pictures and bad-people problems get conflated when, in

fact, they are two very different issues that deserve different treatment and solutions. Much, if not all, of the bad-pictures problem can be dealt with by parents on their own without resorting to any government regulation. But, in addition to parental oversight and education, the bad-people problem demands a government role, primarily in the form of stepped up enforcement efforts and penalties to combat child predation and child pornography. Importantly, in many cases, policymakers are currently misallocating resources by sometimes obsessing over regulatory solutions to the bad-pictures problem when they should be putting their time and resources into handling the far more serious bad-people problem. Section V of this report will discuss that problem in greater detail and call on lawmakers and law enforcement officials to redouble their efforts on this front.

As Section IV will illustrate, education is also a vital part of parental controls and

online child protection efforts. In fact, if there is one thing that this report will seek to impress upon the reader it is that, regardless of how robust they might be today, parental control tools and rating systems are no substitute for education—of both children and parents. Thus, the best answer to the problem of unwanted media exposure or contact with others is for parents to rely on a mix of technological controls, informal household media rules, and, most importantly, education and media literacy efforts. And government can play an important role by helping educate and empower parents and children to help prepare them for our new media environment.

That was the central finding of a blue-ribbon panel of experts convened in 2002

by the National Research Council of the National Academy of Sciences to study how best to protect children in the new, interactive, “always-on” multimedia world. Under the leadership of former U.S. Attorney General Richard Thornburgh, the group produced a report outlining a sweeping array of methods and technological controls for dealing with

The best answer to the problem of unwanted media exposure is for

parents to rely on a mix of technological controls, informal

household media rules, and, most importantly, education and media

literacy efforts. The best answer to the problem of unwanted media exposure is for












potentially objectionable media content or online dangers. Ultimately, however, the experts used a compelling metaphor to explain why education was the most important tool on which parents and policymakers should rely:

Technology—in the form of fences around pools, pool alarms, and locks—can help protect children from drowning in swimming pools. However, teaching a child to swim—and when to avoid pools—is a far safer approach than relying on locks, fences, and alarms to prevent him or her from drowning. Does this mean that parents should not buy fences, alarms, or locks? Of course not—because they do provide some benefit. But parents cannot rely exclusively on those devices to keep their children safe from drowning, and most parents recognize that a child who knows how to swim is less likely to be harmed than one who does not. Furthermore, teaching a child to swim and to exercise good judgment about bodies of water to avoid has applicability and relevance far beyond swimming pools—as any parent who takes a child to the beach can testify.16

Regrettably, we often fail to teach our children how to swim in the new media waters. Indeed, to extend the metaphor, it is as if we are generally adopting an approach that is more akin to just throwing kids in the deep end and waiting to see what happens. To rectify this situation, a serious media literacy agenda is needed in America. Media literacy programs teach children and adults alike to think critically about media, and to better analyze and understand the messages that media providers are communicating. Section IV of this report will argue that government should push media literacy efforts at every level of the education process. And those efforts should be accompanied by widespread public awareness campaigns to better inform parents about the parental control tools, rating systems, online safety tips, and other media control methods at their disposal.

Collectively, these efforts represents an education and empowerment approach that government(s) can adopt to help families deal with media content as opposed to the traditional regulatory approaches generally favored by lawmakers. This approach, which I also refer to as the “Rules, Tools, Schools, and Talk” strategy, has the added benefit of clearly falling within the boundaries of the Constitution, which is important for reasons discussed next.

16

Computer Science and Telecommunications Board, National Research Council, Youth, Pornography, and the Internet (Washington, DC: National Academy Press, 2002), at 224.

The current state of parental control tools and online child protection efforts

is also important because it has a profound effect on the legal and

regulatory status of many modern media providers or various types of

speech and expression.











regulatory status of many modern



B. Parental Controls and the Law

The current state of parental control tools and online child protection efforts is also important because it has a profound effect on the legal and regulatory status of many modern media providers or various types of speech and expression. Public policy discussions about content regulation have long been tied up with thorny debates about what constitutes the proper “community standard” for determining the appropriateness of certain types of speech or media content. The reason for that is because it has traditionally been difficult for individual households to tailor media content—especially broadcast television and radio content—to their specific needs or values. In essence, the off button on TVs and radios was the only technical control at a parent’s disposal. In that environment, many believed that government needed to act as a surrogate for parents given the lack of control families had over their media decisions and encounters. In other words, because it was difficult for families to enforce their own “household standard,” the government needed to step in and create a baseline “community standard” for the entire nation. Unfortunately, those “community standards” were quite amorphous and sometimes completely arbitrary. Worse yet, those regulatory standards treated all households as if they had the same tastes or values. For example, in the context of broadcast television and radio programming, the Supreme Court famously held in the 1978 Pacifica case that FCC oversight and regulatory penalties (i.e., fines or license revocation) would help prevent “uninvited” programming from acting as an “intruder” into the home.17 By a slim 5-4 margin, that logic became the law of the land for broadcasting and remains so today.

Similar arguments would be put forward by policymakers in the mid-1990s when they sought to impose restrictions on Internet and video game content. Courts have rejected these efforts, however. In striking down the Communications Decency Act’s effort to regulate underage access to adult-oriented websites, the Supreme Court declared in Reno v. ACLU (1997) that a law that places a “burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving”

17

FCC v. Pacifica Foundation, 438 U.S. 726, 727-8 (1978).

If it is the case that families now have the ability to effectively

tailor media consumption to their own preferences—that is, to craft

their own “household standard”—the regulatory

equation should also change. If it is the case that families now

have the ability to effectively tailor media consumption to their own preferences—that is, to craft








equation should also change.



the same goal.18 And several lower courts have rejected regulation of video game content on similar grounds.19

What is most interesting about these recent Internet and video game decisions is that the same logic could be applied to many other types of media outlets and content—including broadcasting. Indeed, this study reveals that many “less restrictive alternatives” are available to parents today to help them shield their children’s eyes and ears from content they might find objectionable, regardless of what that content may be.

If it is the case that families now

have the ability to effectively tailor media consumption to their own preferences—that is, to craft their own “household standard”—the regulatory equation should also change. Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.

In fact, in another recent decision, the Supreme Court confirmed that this would

be the new standard to which future government enactments would be held. In United States v. Playboy Entertainment Group (2000),20 the Court struck down a law that required cable companies to “fully scramble” video signals transmitted over their networks if those signals included any sexually explicit content. Echoing its earlier holding in Reno v. ACLU, the Court found that less restrictive means were available to parents looking to block those signals in the home. Specifically, in Playboy case, the Court argued that:

[T]argeted blocking [by parents] enables the government to support parental authority without affecting the First Amendment interests of speakers and willing listeners—listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.21

18

Reno v. ACLU, 521 U.S. 844 (1997).

19 See 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

20 United States v. Playboy Entertainment Group, 529 U.S. 803 (2000).

21 Id. at 815.

Household-based controls need not be perfect to be preferable to government controls. That is

particularly true because of the First Amendment values at stake here.

Household-based controls need not

be perfect to be preferable to government controls. That is





















More importantly, the Court held that:

It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.22

This is an extraordinarily high bar the Supreme Court has set for policymakers wishing to regulate modern media content. Not only is it clear that the Court is increasingly unlikely to allow the extension of broadcast-era content regulations to new media outlets and technologies, but it appears certain that judges will apply much stricter constitutional scrutiny to all efforts to regulate speech and media providers in the future, including broadcasting. As constitutional law scholar Geoffrey R. Stone of the University of Chicago School of Law has noted:

The bottom line, then, is that even in dealing with material that is “obscene for minors,” the government cannot directly regulate such material... Rather, it must focus on empowering parents and other adults to block out such material at their own discretion, by ensuring that content-neutral means exist that enable individuals to exclude constitutionally protected material they themselves want to exclude. Any more direct regulation of such material would unnecessarily impair the First Amendment rights of adults.23

This is why parental control tools and methods are more important than ever before. The courts have largely foreclosed government censorship and placed responsibility over what enters the home squarely in the hands of parents. C. Parental Controls, Personal Responsibility, and a Free Society

And that is how it should be. Decisions about acceptable media content are extraordinarily personal; no two people or families will have the same set of values, especially in a nation as diverse as ours.24 Consequently, it would be optimal if public

22

Id. at 824.

23 Geoffrey R. Stone, The First Amendment Implications of Government Regulation of ‘Violent’

Programming on Cable Television, National Cable and Telecommunications Association, Oct. 15, 2004, at 10, www.ncta.com/ContentView.aspx?hidenavlink=true&type=lpubtp5&contentid=2881

24 As Justice Potter Stewart argued eloquently in his dissent in the 1966 case of Ginzburg v. United

States: “Censorship reflects a society’s lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman’s intrusive thumb or a judge's heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey

http://www.ncta.com/ContentView.aspx?hidenavlink=true&type=lpubtp5&contentId=2881



policy decisions in this field took into account the extraordinary diversity of citizen and household tastes and left the ultimate decision about acceptable content to them. That’s especially the case in light of the fact that most U.S. households are made up entirely of adults.25

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. Will we ever be able to achieve such a world of parental control perfection? It is unlikely since both content and technology will continuously evolve and make that goal elusive. But household-based controls and strategies need not be perfect to be preferable to government regulation. That is particularly true because of the First Amendment values at stake here, as the Supreme Court noted in the Playboy decision. Absent removing all media devices from a home, it would be impossible to eliminate all unwanted or unexpected encounters from life.26 Parental control tools and methods will not always provide perfect protection, but they can act as training wheels or speed bumps along the media paths that children seek to go down without destroying those paths altogether as government censorship would do. Therefore, to reiterate, our goal should be to give parents more information and tools such that they can make media consumption decisions at the household level so that government need not make them for us.

It is also worth noting that older media sectors (books, magazines, or newspapers, for example) offer far fewer parental controls, but have generally received the maximum protection of the First Amendment. It only makes sense to accord similar First Amendment treatment to new digital media providers and content. As we move toward a fully converged media world, where the same content flows across multiple

something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.” Ginzburg v. United States, 383 U.S. 463 (1966).

25 As Section III.A will make clear, less than one-third of U.S. households include children under the age

of 18 and many of those homes do not need or want parental control tools.

26 Of course, this is the case outside the home as well. Consider ball games, shopping malls, and even

parks and playgrounds.

The ideal state of affairs would be a nation of fully empowered

parents who have the ability to perfectly tailor their family’s

viewing habits to their specific values and preferences.



particularly true because of the First Amendment values at stake

here. Household-based controls need not









here.



media platforms and devices,27 it will be essential to apply a consistent set of First Amendment protections to ensure that all technologies and speakers are treated equally in the eyes of the law.28

In summary, as both a normative and practical matter, there is no reason that government officials should be in the business of choosing what is appropriate for children. That is true of the books or magazines they read, the television programs or movies they watch, the music they listen to, the games they play, or the websites they visit. Public officials should not act in loco parentis when parents have the power to make content and communications decisions on their own. Raising children, and determining what they watch, play, read, listen to, or download, is a quintessential parental responsibility. Simply stated, as Tom W. Bell of the Chapman University School of Law argues, “The state ought not do for us what we can just as well do for ourselves.”29

Of course, it isn’t easy. Parenting is tough work; it is probably the most challenging task most of us will undertake as adults. Luckily, as this report will hopefully prove, parents have more tools and methods at their disposal than ever before to help them carry out this difficult responsibility.

Ultimately, there is no silver bullet tool or method that will get the job done on

its own. We will need to adopt a “layered” approach to parental controls and online child protection to do the job right. This four-layer strategy of “Rules, Tools, Schools, and Talk” is developed throughout the rest of this report.

27

Henry Jenkins, founder and director of the MIT Comparative Media Studies Program and author of Convergence Culture: Where Old and New Media Collide, defines convergence as “the flow of content across multiple media platforms, the cooperation between multiple media industries, and the migratory behavior of media audiences who will go almost anywhere in search of the kinds of entertainment experiences they want.” Henry Jenkins, Convergence Culture: Where Old and New Media Collide (New York: New York University Press, 2006), at 2.

28 See Adam Thierer, Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the

Information Age, Catholic University Law School, 15 CommLaw Conspectus, Summer 2007, at 431-482; http://commlaw.cua.edu/articles/v15/15_2/Thierer.pdf; Adam Thierer, FCC v. Fox and the Future of the First Amendment in the Information Age, Engage, Feb. 2009, www.fed-soc.org/doclib/20090216_ThiererEngage101.pdf

29 Tom W. Bell, Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional

Jurisprudence, 87 Minnesota Law Review, 2003, at 774, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=422621. Bell continues:

As a general matter… technological advances that give private parties increasingly refined means of manipulating information have led—and should lead—courts to reduce the permissible scope of state action. Just as we upgrade computer software to benefit from progressively better hardware, in other words, we should upgrade First Amendment jurisprudence to benefit from progressively better self-help.

http://commlaw.cua.edu/articles/v15/15_2/Thierer.pdf



http://papers.ssrn.com/sol3/papers.cfm?abstract_id=422621



Exhibit 2: A Layered Approach to Parental Controls

and Child Protection



II. Household Media Rules and Informal Parental Control Methods

Before outlining the many media-specific parental control tools and technologies that are available today (summarized in Section III), it is important to realize that household-level rules and informal parental control methods exist that are equally important elements of this story. 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. Indeed, to the extent that many households never take advantage of the technical controls discussed in Section III, it is likely because they rely instead on the informal household media rules discussed here in this chapter. Importantly, courts are increasingly taking into account the importance of such household media rules and methods, as is witnessed by the Eastern District of Michigan’s 1999 decision in Cyberspace Communications, Inc. v. Engler:

Parental control is the most effective method in overseeing where the child ventures. This can be as simple as placing the computer in a common area of your home, like the living room, so the child can anticipate the presence of an adult…. *or+ not placing the computer in the children’s bedroom where they have the seclusion for unbounded exploration. A parent could also place a lock on the computer until such time as a parent can supervise the child. If the parent cannot directly supervise the child’s computer usage, then set limits, much like what shows a child can and cannot watch on television. There are software programs that log all the websites so that a parent can have a record and the child knows that they have to adhere to limits. Finally, the Court takes judicial notice of the fact that every computer is equipped with an on/off switch.30

And, as will be shown below, everything the court said here regarding computers is equally true of other media technologies; there exist myriad ways parents can establish firm ground rules about media exposure and consumption.

30

Cyberspace Communications, Inc. v. Engler, 55 F. Supp. 2d 737 at 750-51 (E.D. Mich. 1999), aff’d 238 F.3d 420 (6th Cir.2000).



A. Household Media Consumption Rules

To begin, there are formal and informal household “media consumption rules.” 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.”31 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.32 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:33

65 percent of parents say they closely monitor their children’s media use;

73 percent of parents say they know a lot about what their kids are doing online;

87 percent of parents check their children’s instant messaging “buddy lists;”

82 percent of parents review their children’s social networking sites; and,

76 percent of parents look to see what websites their children have visited.

Similarly, a 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.34

Parents use a wide variety of household media consumption rules. Some 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. Regardless, these household media consumption rules can be grouped into four general categories: (1) “where” rules; (2) “when and how much” rules; (3) “under what conditions” rules; and, (4) “what” rules.

31

Kaiser Family Foundation, Zero to Six: Electronic Media in the Lives of Infants, Toddlers and Preschoolers, Fall 2003, at 9, www.kff.org/entmedia/entmedia102803pkg.cfm

32 Kaiser Family Foundation, The Media Family: Electronic Media in the Lives of Infants, Toddlers,

Preschoolers and Their Parents, May 2006, at 20, www.kff.org/entmedia/7500.cfm

33 Victoria Rideout, Kaiser Family Foundation, Parents, Children & Media, June 2007,

www.kff.org/entmedia/entmedia061907pkg.cfm

34 Common Sense Media, New Poll Finds That Parents Are Taking Proactive Steps to Keep Kids Safe and

Smart on the Web, Press Release, Sept. 25, 2007, www.commonsensemedia.org/news/press-releases.php?id=86

To the extent that many households never take advantage

of technical controls, it is likely because they rely instead on the informal household media rules.

To the extent that many households never take advantage of technical controls, it is likely because they rely instead on the informal household media rules.

To the extent that many households never take advantage

of technical controls, it is likely because they rely instead on the informal household media rules.

To the extent that many households never take advantage of technical controls, it is likely because they rely instead on the informal household media rules.

http://www.kff.org/entmedia/entmedia102803pkg.cfm

http://www.kff.org/entmedia/7500.cfm


http://www.commonsensemedia.org/news/press-releases.php?id=86




(1) “Where” Rules: One of the most important steps that parents can take to better control their children’s media usage is to establish firm rules regarding where their children can do so. “We don’t have to say no to having TVs, video games, or computers in our homes,” argues Dr. David Walsh, president and founder of the National Institute on Media and the Family, “but we should say no to where some of the screens go.”35

For example, parents can assign a specific television or computer for most media usage and then take steps to ensure that those devices have screening or filtering controls installed and programmed. Additionally, parents can require that their children consume media (TV, Internet, video games, etc.) in a specific room or area of the house where they can keep an eye or ear on what their kids are doing. At a minimum, parents can start by at least getting televisions, computers, and game consoles out of kids’ bedrooms so they can better monitor media usage by their children. According to a 2005 Kaiser survey, 68 percent of 8 to 18 year-olds have televisions in their bedrooms.36 Parents who let their kids lock themselves in their rooms with media devices have surrendered their first line of defense in protecting their children from potentially objectionable content.37 Luckily, the reverse appears to be true for computers. A 2006 Pew Internet & American Life Project survey of media usage by teenagers revealed that 74 percent of homes with teenagers have their computers in an “open family area.”38 That result was consistent with Pew surveys taken in 2004 and 2000. (2) “When and How Much” Rules: Parents can also limit the overall number of hours that children can consume various types of media content, or when they can do so. (Several technological tools mentioned in Section III can help parents accomplish this.) For example, parents can impose restrictions on the times of the day that children can consume media with rules like, “No TV or video games after 8:00 PM,” or, more

35

David Walsh, No: Why Kids—of All Ages—Need to Hear It and Ways Parents Can Say It (New York: Free Press, 2007), at 269.

36 Kaiser Family Foundation, Generation M: Media in the Lives of 8-18 Year-Olds, March 2005, at 10,

www.kff.org/entmedia/entmedia030905pkg.cfm

37 “One of the most beneficial Nos is to keep TVs, video games, or computers out of kids’ bedrooms.

Sending your kid to her room isn’t a punishment when she can catch up on her favorite shows or ‘whatever else is on.’ Once her door is closed, you don’t know where your child goes on the Internet, what she is watching, or for how long. Keeping media out of the bedroom increases school performance and decreases the risk of obesity. Say yes to screens in a common space in the house. This may be a bit nosey, but it will help you keep track of your kids’ screen time and virtual activities.” Walsh, op. cit., at 269-270.

38 Amanda Lenhart and Mary Madden, Pew Internet & American Life Project, Teens, Privacy, and Online

Social Networks, April 18, 2007, at 8, www.pewinternet.org/PPF/r/211/report_display.asp


http://www.pewinternet.org/PPF/r/211/report_display.asp



stringently, “No TV or games on a school night.” The 2007 Pew Internet & American Life Project survey mentioned above found that 58 percent of parents limit the amount of time their children can spend watching television; 59 percent limit how much time their kids can play video games; and 69 percent limit how much time their children can spend online.39 A 2008 survey conducted by the Entertainment Software Association (ESA), which represents the video game industry, revealed an even greater degree of parental involvement, finding that 80 percent of parents have placed time limits on video game playing in their homes.40

(3) “Under What Condition” Rules: “When and how much” rules represent a carrot-and-stick approach to media consumption / exposure. Parents can incentivize their children by requiring that other tasks or responsibilities be accomplished before media consumption is permitted. For example, many of us are familiar with this very common household media rule: “You have to finish your homework before you get to watch any TV.” Similar rules can be used for video games and other types of media. My mother effectively used a conditional media rule with me as a child when she rewarded weekly achievement in school by letting me pick out a comic book at a local pharmacy. On the weeks I didn’t do so well in school, I didn’t get my Batman or Spiderman fix! More creatively, parents can formulate a “media allowance” for their children (especially as they get older) to allow them to generally consume the media they want but only within certain boundaries. Again, incentives can be used with this approach. For example, better grades at school might be rewarded by adding one more hour of media time to their overall weekly media allowance. The U.S. Census Bureau recently released data on child-parent interaction that illustrates how the use of household media rules appears to be growing. The Census Bureau’s data is part of a report entitled A Child's Day.41 The last Child’s Day report was conducted in 1994, and the most recent one in 2004, but the data for 2004 was just recently released. The latest results are very encouraging and reveal that, “Parents are taking a more active role in the lives of their children than they did 10 years ago,” according to a Census Bureau press release.42 As the adjoining exhibit illustrates, parents are crafting more TV rules for their kids today than they were in the past.43 The

39

Id., at 9.

40 Entertainment Software Association, Essential Facts about the Computer and Video Game Industry:

2008 Sales, Demographics and Usage Data, 2008, at 8, www.theesa.com/facts/pdfs/ESA_EF_2008.pdf

41 www.census.gov/population/www/socdemo/2004_detailedtables.html

42 U.S. Census Bureau, Parents More Active in Raising Their Children; More Children Get Television

Restrictions, Press Release, Oct. 31, 2007, www.census.gov/Press-Release/www/releases/archives/children/010850.html

43 See Adam Thierer, The Progress & Freedom Foundation, Latest Census Numbers on Kids, Parents &

Media, PFF Blog, Dec. 14, 2007, http://blog.pff.org/archives/2007/12/latest_census_n.html

http://www.theesa.com/facts/pdfs/ESA_EF_2008.pdf

http://www.census.gov/population/www/socdemo/2004_detailedtables.html

http://www.census.gov/Press-Release/www/releases/archives/children/010850.html

http://www.census.gov/Press-Release/www/releases/archives/children/010850.html

http://blog.pff.org/archives/2007/12/latest_census_n.html



survey also found that parents were reading to their kids more and enrolling their children in more extracurricular activities and lessons.

Exhibit 3: More Families Using Household Media Rules

B. “What Rules” & the Importance of a Good (Media) Diet

The efforts described above represent commonsense approaches parents can use to establish basic ground rules about how media are consumed in the home. But what about the substance of the media that are being consumed within these preestablished boundaries? This represents the fourth, and most important, category of household media rules: “what” rules.

Parents regularly enforce household rules about what their children can watch, listen to, play, or surf. For example, a poll conducted by the group TV Watch in June 2007 found that 73 percent of parents monitor what their children watch, including 87 percent of parents whose children are ages 0-10.44 Similarly, according to the Pew Internet & American Life Project, 77 percent of parents already have rules for which TV shows their kids can watch, 67 percent have rules for the kinds of video games they can play, and 85 percent have rules about which Internet websites they can and cannot

44

Hart Research, Hart Research, TV Watch Survey of Parents, June 2007, www.televisionwatch.org/junepollresults.pdf

http://www.televisionwatch.org/junepollresults.pdf



visit.45 Another poll commissioned by Common Sense Media and Cable in the Classroom revealed that more than 93 percent of parents of children ages 6 to 18 who go online say they have taken action to make sure the Web sites their kid visits meets with their approval.46

How can parents do more to encourage their kids to consume media content that they feel is appropriate and enriching? Although every family will have a different set of values and preferences, when it comes to media consumption, parents need to think about what constitutes a sensible “media diet” for their own families. As the American Academy of Pediatrics notes, “You watch what foods your kids eat, the toys they play with and how much sleep they get. But are you watching what they learn from TV? Like maintaining a balanced diet or regular bedtime, establishing healthy TV habits is one of the most important things you can do for your family.”47 Likewise, Patricia Greenfield, UCLA distinguished professor of psychology and director of the Children's Digital Media Center, notes that “No one medium is good for everything. If we want to develop a variety of skills, we need a balanced media diet,” she argues. “Each medium has costs and benefits in terms of what skills each develops.”48

Toward that end, parents should consider taking a “food pyramid” approach to

media consumption: Teach kids the importance of a balanced media diet while also teaching them the types of things that you think they should probably avoid altogether. 49 The federal government has a recommended food pyramid for nutritional purposes, of course. But just as government doesn’t enforce the food pyramid through regulation, neither should it enforce a media food pyramid through mandates or restrictions. In fact, we don’t need the government to tell us what is in a “media food pyramid” at all. This is something parents can do quite effectively on their own, especially in light of the differing values each household will bring to the job.

45

Teens, Privacy, and Online Social Networks, op. cit., at 9.

46 Common Sense Media, New Poll Finds That Parents Are Taking Proactive Steps to Keep Kids Safe and

Smart on the Web, Press Release, Sept. 25, 2007, www.commonsensemedia.org/news/press-releases.php?id=86

47 American Academy of Pediatrics, Smart Guide to Kid’s TV, www.aap.org/family/smarttv.htm

48 Quoted in Is Technology Producing a Decline in Critical Thinking and Analysis? Cellular-News.com, Jan.

29, 2009, www.cellular-news.com/story/35729.php

49 The author thanks Rich Lappenbusch of the Microsoft Corporation for inspiring and helping to develop

this concept during a series of ongoing conversations in 2006-2007.

Although every family will have a different set of values and

preferences, when it comes to media consumption, parents need to think about what constitutes a sensible

“media diet” for their own families.

Although every family will have a

different set of values and preferences, when it comes to media consumption, parents need to think about what constitutes a sensible









different set of values and preferences, when it comes to media consumption, parents need to think



http://www.aap.org/family/smarttv.htm

http://www.cellular-news.com/story/35729.php



A family’s media food pyramid might have specific time allotments and recommended “portions” of different types of content. The American Academy of Pediatrics recommends no more than one or two hours of “screen time” per day,50 but families might vary that depending on their desires and their children’s ages. Once parents decide roughly how much media they will allow their children to consume, they can determine what are the best portions to be served. Consider how this might work for television. In their recent book The Elephant in the Living Room: Making Television Work for Your Kids, Dimitri Christakis and Frederick Zimmerman, directors of the Child Health Institute at the University of Washington, offer parents numerous suggestions for how to make television viewing a more positive experience for everyone in the family.51 They group TV programs into several categories and then encourage parents to use a mix of shows in each category to achieve a balanced media diet. The adjoining exhibit outlines some of the programs they recommend to satisfy desired skills or values that most parents would find important.

Exhibit 4: Sample “Media Diet” of Children’s Television Programming

Desired Skills / Values Sample Programs

Literacy skills Sesame Street, Arthur, Between the Lions

Math skills Sesame Street, Cyberchase

Problem-solving skills Blue’s Clues, Dora the Explorer, Go Diego Go

Music and dance / physical activity

The Wiggles, The Backyardigans, Animal Jam

Imagination / creativity Mister Rogers’ Neighborhood, Barney & Friends

Pro-social skills Higglytown Heroes, Dragon Tales, Clifford

Geography skills It’s a Big Big World, Postcards from Buster

Cultural diversity Dora the Explorer, Go Diego Go, Sesame Street

This approach works equally well for music, games, interactive software, websites, and all types of media. They can be integrated into each family’s media pyramid once parents decide the proper mix of skills and values. Again, every family will bring a different set of needs and values to this task. And the needs of children will vary by age. The proper media diet for a 5-year-old will be much different from that of 15-year-old. In other words, no two family media diets will be the same. Portion sizes from each category will likely differ. And the type of media content used in each category might be different for each family. For example, to instill geography skills in children, some families might rely heavily on interactive computer software, online

50

American Academy of Pediatrics, Television: How it Affects Children, www.aap.org/pubed/ZZZGF8VOQ7C.htm?&sub_cat=1

51 Dimitri A. Christakis and Frederick J. Zimmerman, The Elephant in the Living Room: Making Television

Work for Your Kids (New York: Rodale, 2006).

http://www.aap.org/pubed/ZZZGF8VOQ7C.htm?&sub_cat=1



encyclopedias, and various TV or DVD documentaries. On the other hand, some families might adopt the old-fashioned approach that my wife and I use in our home. We have a library filled with old maps, atlases, a globe, and a 40-year collection of National Geographic magazines that we use to teach geography to our kids.52

Exhibit 5: The Media Food Pyramid: Crafting a Balanced (Media) Diet

The bottom line: While different families will always have different values and approaches, there is something to be said for a balanced diet when it comes to media consumption, just as is the case with child nutrition. Finally, it should be stressed that not everything in a family’s media diet must be completely educational in character. Sometimes parents and kids just want to relax and enjoy various types of entertainment, whatever they may be. A certain portion of every family’s media diet, therefore, will be non-educational media content—and there’s nothing wrong with that. For example, one can be thankful for the many lessons learned

52

We also have a map of United States glued to a piece of cardboard that we let our kids stick colored pins into it to highlight the cities they have visited.

Personal

Personal

Personal

Personal

Personal

Personal

Personal

Personal

Foundational

Foundational

Foundational

Foundational

Foundational

Foundational

Foundational

Foundational

Social / Cultural

Social / Cultural

Social / Cultural

Social / Cultural

Social / Cultural

Social / Cultural

Social / Cultural

Social / Cultural

Inspirational

Inspirational

Inspirational

Inspirational

Inspirational

Inspirational

Inspirational

Inspirational

Literary Skills

Literary

Skills

Literary

Skills

Literary

Skills

Literary

Skills

Literary

Skills

Literary

Skills

Literary

Skills

Math Skills

Math Skills

Math Skills

Math Skills

Math Skills

Math Skills

Math Skills

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by watching Sesame Street, as I do, but still have fond memories of those old cartoons and comic books that many of us enjoyed when we were growing up. C. Teaching Good Etiquette in a Multimedia World

One of the most important parenting responsibilities involves teaching our children basic manners and rules of social etiquette. For example, we teach them proper dinner table manners, to cover their mouths when they cough or sneeze, to hold doors open for others, or simply to say “thank you” when given something. When we become parents, no one from the government gives us a handbook instructing us to do all this. Rather, these are social conventions that come to us naturally, just as they did with our parents and the generations of parents that came before them. These informal social rules of etiquette are essential to well-functioning civil society. And it is commonly understood that these are “rules” that families, communities, and other social groups or institutions are primarily responsible for instilling in children. Why should it be any different for media usage? It shouldn’t. Proper online etiquette is a private responsibility, albeit one that is probably not taken as seriously as “offline” etiquette. Again, most parents repeatedly drill basic manners into their kids until it is clear that they “get it.” Unfortunately, the same cannot be said for online manners. This might be the case because the Internet and digital communications technologies have taken the world by storm and caught the current generation of parents a bit off guard. Unaccustomed to, or uncomfortable with modern computing or communications devices, some parents may be neglecting their duties in terms of teaching good online etiquette and basic online safety.53 Of course, as the blue-ribbon panel of experts assembled by the National Academy of Sciences noted, “It may be that as today’s children become parents themselves, their familiarity with rapid rates of technological change will reduce the knowledge gap between them and their children, and mitigate to some extent the consequences of the gap that remains.”54

53

“People naturally fear what they do not understand,” says Jason Illian, author of MySpace, MyKids. But, “regardless of how you feel about the Internet and online communities, they are here to stay… Likewise, we’re not going to stop our teenagers from chatting online and meeting new people. We just need to teach them how to do it properly so that they don’t get hurt.” Jason Illian, MySpace, MyKids (Eugene, OR: Harvest House Publishers, 2007), at 10-11.

54 Computer Science and Telecommunications Board, National Research Council, Youth, Pornography,

and the Internet (Washington, DC: National Academy Press, 2002), at 49.

Unaccustomed to using modern computing or communications devices, some parents may be

neglecting their duties in terms of teaching good online etiquette.










neglecting their duties in terms of



Nonetheless, here are a few lessons children need to be taught as they begin using interactive communications and computing technologies, including mobile phones,55 mobile media devices, interactive video games, instant messaging, social networking websites, blogs, and so on. To begin, kids need to be taught to assume that everything they do in the digital, online world could be archived forever and will be available to their future employers, romantic interests, children and grandchildren, and so forth.56 This admonition needs to be repeated frequently to remind minors that their online actions today could have profound consequences for them tomorrow. Beyond this warning, children need to be encouraged to follow some other sensible rules while using the Internet and other interactive technologies: Treat others you meet online with the same respect that you would accord

them in person;

Do not bully or harass your peers;57

Do not post negative comments about your teachers or principals online;

Do not post or share inappropriate pictures of yourself or others;

Be extremely careful about talking to strangers online;

Avoid using lewd or obscene language online or in communications;

Do not share your personal information with unknown parties; and,

Talk to parents and educators about serious online concerns and report dangerous situations or harassing communications to them.

To better formalize such guidelines in the home, parents might want to ask their

children to sign the “Family Netiquette Plan”58 and the “Internet Respect Plan,”59 55

The National Institute on Media and the Family produces an excellent guide for parents entitled “Cell Phones and Your Kids” that offers friendly pointers for parents looking to teach their children proper cell phone etiquette. See A MediaWise Parent Guide—Cell Phones and Your Kids, (Minneapolis, MN: National Institute on Media and the Family, 2006), www.mediafamily.org/network_pdf/cellphon_guide.pdf. Also, the Harvard University Center on Media and Child Health has some useful guidelines here: http://cmch.tv/mentors/hotTopic.asp?id=70 .

56 “The biggest message that must be imparted to children and teens with respect to [their] privacy and

the Internet is: it’s not private!!! Anything and everything that is put into electronic form and sent or posted online is public or could easily be made public. Think before you post.” Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), at 92, [emphasis in original].

57 The Anti-Defamation League has established an excellent website (Cyberbullying: Understanding and

Addressing Online Cruelty) dedicated to the issue. It features classroom lesson plans and many other resources. www.adl.org/education/curriculum_connections/default.asp. Also see Nancy Willard, Center for Safe and Responsible Internet Use, An Educator’s Guide to Cyberbullying and Cyberthreats, 2007, www.cyberbully.org/docs/cbcteducator.pdf

58 www.mediafamily.org/pdf_files/Network_Family_Netiquette

59 www.mediafamily.org/pdf_files/Network_Internet

http://www.mediafamily.org/network_pdf/cellphon_guide.pdf

http://cmch.tv/mentors/hotTopic.asp?id=70

http://www.adl.org/education/curriculum_connections/default.asp

http://www.cyberbully.org/docs/cbcteducator.pdf

http://www.mediafamily.org/pdf_files/Network_Family_Netiquette_Plan.pdf

http://www.mediafamily.org/pdf_files/Network_Internet_Respect_Plan.pdf



documents that the National Institute on Media and the Family produces. The one-page “contracts” contain many of the listed guidelines and ask both parents and children to sign the formal household agreement pledging to abide by those rules. Parents can then devise penalties if their children break the rules. The National Institute on Media and the Family recommends the following punishment if the rules are violated: “If there are any violations to expected behaviors, there will be no Internet, TV, or video games for the following three days except for necessary school work.”60 D. Third-Party Pressure, Ratings, and Advice

Parents can also work with others to influence media content before it comes into the home, or rely on other groups they trust to help them better understand what is in the media they are considering bringing into the home.61 Parents can pressure media providers and programmers directly through public campaigns, or indirectly through advertisers.62 As child development experts Jeanne Brooks-Gunn and Elisabeth Hirschhorn Donahue argue, “Because government will probably not intervene in the realm of media content, the most effective pressure on industry to produce positive media content will come from the court of public opinion made up of child advocates and, especially, families.”63 In other words, the combination of social norms, press attention, public pressure, and even shame can act as a powerful influence on the composition of media content.

60

Id.

61 As Competitive Enterprise Institute analysts Cord Blomquist and Eli Lehrer argue, “ratings systems will

never substitute for other social institutions. Parents, houses of worship, schools, and communities need to take the lead in keeping obscene, dangerous, or offensive materials away from children. Ratings systems cannot be expected to do this. Properly constructed, they provide useful information to parents, nothing more and nothing less.” Cord Blomquist and Eli Lehrer, Competitive Enterprise Institute, Politically Determined Entertainment Ratings and How to Avoid Them, Issue Analysis, No. 12, Dec. 2007, at 25, http://cei.org/pdf/6292.pdf

62 “There is every reason to believe that the marketplace, speaking through advertisers, critics, and self-

selection by viewers, provides an adequate substitute for Commission involvement in protecting children and adults from television’s ‘captive’ quality.” Mark S. Fowler and Daniel L. Brenner, A Marketplace Approach to Broadcast Regulation, 60 Texas Law Review 2, Feb. 1982, at 229.

63 Jeanne Brooks-Gunn and Elisabeth Hirschhorn Donahue, “Introducing the Issue,” in Children and

Electronic Media, The Future of Children, Vol. 18, No. 1, Spring 2008, at 9.

http://cei.org/pdf/6292.pdf



Consider the “watchdog” role played by groups like the Parents Television Council, Morality in Media, Common Sense Media, and the National Institute on Media and the Family. These groups can play a constructive role in influencing content decisions through the pressure they can collectively bring to bear on media providers in the marketplace. For example, Morality in Media’s website outlines several strategies parents can use to influence advertisers, programming executives, and cable operators before resorting to calls for censorship. To allow parents to pressure advertisers, the group publishes a book listing the top 100 national advertisers, with addresses, phone and fax numbers, names of key executives, and their products, along with a products list cross-referenced to the manufacturer. The group produces a similar book that lists the names and addresses of the CEOs of the leading broadcast and cable companies in America so that viewers or listeners can complain directly to them.64 Similarly, the Parents Television Council (PTC) awards its “seal of approval” to advertisers who only support programs that the PTC classifies as family-friendly.65 PTC also encourages parents to send letters and e-mails to advertisers who support programming they find objectionable and encourage those advertisers to end their support of those shows.

Such efforts have been effective at changing corporate behavior in other contexts. For example, in late 2006, after years of pressure from various health groups and average parents, 10 major food and beverage companies announced new, self-imposed restrictions on advertising to children. These 10 companies, which included McDonald’s, Coca-Cola, Pepsi, Kraft Foods, and Hershey, account for more than two-thirds of all food and beverage advertising aimed at children.66 Among their commitments, they agreed to not advertise products in schools; devote half their advertising to promoting healthier lifestyles and foods; limit the use of popular third-party characters (such as cartoon characters) in their ads; and limit ads seen in interactive video games or promote healthy alternatives in those ads. The initiative will be monitored by the Council of Better Business Bureaus, which helped craft the agreement. The efforts appear to be making a difference.67 64

Robert Peters, “The Importance of Making Complaints,” Morality in Media website, available at www.moralityinmedia.org

65 www.parentstv.org/PTC

66 Betsy McKay and Janet Adamy, Food Companies Vow to Tighten Limits on Kids’ Ads, Wall Street

Journal, Nov. 15, 2006, at B3.

67 See Susan Levine and Lori Aratani, Sweet Surrender, Washington Post, May 22, 2008, at D1,

www.washingtonpost.com/wp-dyn/content/article/2008/05/21/AR2008052102827.html

Parents can also work with others to influence media content before it comes into the home, or rely on

other groups they trust to help them better understand what is in

the media they are considering bringing into the home.











other groups they trust to help

http://www.moralityinmedia.org/

http://www.parentstv.org/PTC/awards/main.asp

http://www.washingtonpost.com/wp-dyn/content/article/2008/05/21/AR2008052102827.html



If public pressure can help change corporate attitudes and outputs when it

comes to food and beverage advertising, there is every reason to believe that it can also change other types of media behavior. Consider some examples of how it already has made a difference:

In late 2006, intense public pressure forced News Corp. to abandon the publication of a controversial book by O.J. Simpson in which he described how he might have killed his ex-wife and her friend.68 Washington Post columnist Shankar Vedantam argued that this episode “showed that shame remains a powerful tool in America.”69

In April 2007, radio talk show host Don Imus had his CBS Radio show and MSNBC television program canceled after making offensive remarks about the Rutgers University women’s basketball team.70 Public outcry was so intense that almost all his largest advertisers pulled their support for his show less than a week after the incident occurred.71 (Of course, Imus did end up back on the air before the end of the year!)

In 2008, MTV began casting a new reality show called Model Maker, which sought woman ages 17 to 24 who would compete by engaging in extreme weight loss and body makeovers. An intense backlash ensued, led by the public health community. As USA Today reported, “Thankfully, MTV is nixing the show after complaints from, among others, the National Association of Anorexia Nervosa and Association of Eating Disorders and a British parliamentary group. The outcry is the latest hopeful marker that society’s attitudes to unnatural thinness are slowly changing, much as smoking has become socially dubious.”72

Parents and other organizations might also be able to work together to pressure

content providers or distributors to self-regulate materials that cannot be blocked with parental control technologies. For example, some parents feel in-flight movies shown on

68

Tim Harper, O.J. Book, Fox Show Cancelled, Toronto Star, Nov. 21, 2006.

69 Shankar Vedantam, Abandoned O.J. Project Shows Shame Still Packs a Punishing Punch, Washington

Post, Nov. 27, 2006, at A2.

70 Bill Carter and Jacques Steinberg, CBS Drops Imus Radio Show over Racial Remark, New York Times,

April 12, 2007, www.nytimes.com/2007/04/12/business/media/12cnd-imus.html?ex=1180756800&en=15850df43f6b8c51&ei=5070; Matthew Robinson, U.S. Radio Host Imus Hints Career May Be Ending, The Guardian, April 12, 2007, http://sport.guardian.co.uk/breakingnews/feedstory/0,,-6552506,00.html

71 Kenneth Li, Here’s Why MSNBC Dropped Imus, Reuters, April 11, 2007,

http://blogs.reuters.com/2007/04/11/heres-why-msnbc-dropped-imus

72 Dangerous ‘Model’, USA Today, Oct. 24, 2008, P, 10A.

http://www.nytimes.com/2007/04/12/business/media/12cnd-imus.html?ex=1180756800&en=15850df43f6b8c51&ei=5070

http://www.nytimes.com/2007/04/12/business/media/12cnd-imus.html?ex=1180756800&en=15850df43f6b8c51&ei=5070

http://sport.guardian.co.uk/breakingnews/feedstory/0,,-6552506,00.html

http://blogs.reuters.com/2007/04/11/heres-why-msnbc-dropped-imus



drop-down screens in airplanes contain sexual or violent themes unfit for some younger viewers. Unfortunately, there is no way for them to block the screen or turn off those videos. KidSafeFilms.org is a new group that pressures airline operators to take steps to further restrict or edit what is shown in the open cabin space since parents have no control over it.73 Of course, eventually most airlines will have individual screens for each seat and parents will be able to control what is being viewed by their children. But the efforts of KidsSafeFilms.org might help speed up those efforts and get airlines to be more selective about the content they show on drop-down screens in the meantime.74 A similar effort might be useful in terms of discouraging advertising for potentially offensive content on television, or at least encouraging programmers to air such ads during later hours of the day. Most parents, however, will not likely feel the need to pressure media producers directly but instead simply want better information about the media they bring into the home. Or they might feel comfortable getting independent advice or third-party ratings about various types of media content. Help is out there. For example:

Common Sense Media’s comprehensive website75 allows both parents and children to rate a diverse assortment of media content and then sort it all by age group to find what is appropriate for their families.76 The site also offers parental tips such as its “Managing Media: Downloads, Internet TV, and More” checklist, which helps parents manage their children’s media consumption.77 Importantly, Common Sense Media also partners with retail stores, online providers, and technology vendors to better inform parents about what to expect in the media their kids consume. For example, Common Sense Media has a partnership with Best Buy to feature the organization’s video game and DVD reviews, content descriptions and user comments in the relevant sections of BestBuy.com website.

The National Institute on Media and the Family’s MediaWise website offers occasional columns and newsletters for parents that include information they can use to make more informed judgments about the content their children consume.78 In particular, the institute’s website offers a free “KidsScore”

73

www.kidsafefilms.org

74 Adam Thierer, Long-Range Censors,” City Journal, Oct. 3, 2007, www.city-journal.org/html/eon2007-

10-03at.html

75 www.commonsensemedia.org

76 Joe Garofoli, Media Guide Offers Reviews for Parents—But No Soapbox, San Francisco Chronicle, Dec.

8, 2006, http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/12/08/MNG75MS23C1.DTL

77 www.commonsensemedia.org/parent_tips/commonsense_view/index.php?id=232

78 www.mediafamily.org

http://www.kidsafefilms.org/

http://www.city-journal.org/html/eon2007-10-03at.html


http://www.commonsensemedia.org/

http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/12/08/MNG75MS23C1.DTL

http://www.commonsensemedia.org/parent_tips/commonsense_view/index.php?id=232

http://www.mediafamily.org/



system79 that rates thousands of movies, TV shows, video games. All content is alphabetized and easy to search.

Focus on the Family’s Plugged In magazine and Plugged In Online website80 are independent rating resources “designed to help equip parents, youth leaders, ministers, and teens with the essential tools that will enable them to understand, navigate, and impact the culture in which they live.”81 Because of the group’s religious focus, its movie, television, and music reviews also probe the spiritual content found in some media titles.

The Parent Previews website82 reviews new movies, DVDs and video games on an easy-to-understand A-F grading system. Four primary categories are graded (violence, sexual content, language and drug or alcohol use) to determine the title’s overall grade.

Other creative, independent rating systems are on the market or being developed. For example, TiVo has a partnership with the Parents Television Council, KIDS FIRST! and Common Sense Media to jointly develop TiVo KidZone Guides.83 Using ratings and information created by those groups, TiVo’s KidZone service lets parents filter and record only the content that those groups have deemed appropriate.84 In early 2009, Common Sense Media struck similar deals with satellite television provider DIRECTV as well as Tribune Media Services, a leading provider of entertainment information databases and electronic programming guides. Through the partnership with DIRECTV, Common Sense Media’s ratings and age-based information about TV shows and movies will be made available to DIRECTV subscribers—at first jus online and then later through set-top box programming guides.85 The Common Sense Media-

79

www.mediafamily.org/kidscore

80 www.pluggedinonline.com

81 www.pluggedinonline.com/aboutUs/index.cfm

82 www.parentpreviews.com

83 www.tivo.com/whatistivo/tivois/tv/index.html#kid_zone

84 Saul Hansell, TiVo to Offer Tighter Rein on Children’s Viewing, New York Times, March 2, 2006,

www.nytimes.com/2006/03/02/technology/02tivo.html?_r=1&oref=slogin. Also see Comments of TiVo Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213640

85 Common Sense Media, DIRECTV and Commons Sense Media Form Partnership to Help Parents Choose

Kid-Friendly Programming,” Press Release, March 20, 2009, www.commonsensemedia.org/about-us/press-room/directv-partnership. Also see Comments of DirecTV Network, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213618

http://www.mediafamily.org/kidscore

http://www.pluggedinonline.com/

http://www.pluggedinonline.com/aboutUs/index.cfm

http://www.parentpreviews.com/

http://www.tivo.com/whatistivo/tivois/tv/index.html#kid_zone

http://www.nytimes.com/2006/03/02/technology/02tivo.html?_r=1&oref=slogin


http://www.commonsensemedia.org/about-us/press-room/directv-partnership





Tribune Media Services agreement works much the same way.86 Importantly, because Tribune provides electronic programming guides and information to many major media operators, such as DISH Network, it means many more parents will have access to Common Sense Media ratings and information and be able to screen and block content accordingly.

Exhibit 6: Independent Media Reviews and Rating Systems

Common Sense Media

Media Wise “KidScore”

Plugged In Online

Parents Preview

86

Common Sense Media, Tribune Media Services and Common Sense Media Announce Partnership to Help Parents Make Entertainment Choices, Press Release, April 8, 2009, www.commonsensemedia.org/about-us/press-room/press-releases/tribune-media-services-partnership

http://www.commonsensemedia.org/about-us/press-room/press-releases/tribune-media-services-partnership




All these private, voluntary education and rating methods are preferable to the

type of pressure that some groups bring to bear in the political marketplace when they encourage policymakers to regulate media content.87

Exhibit 7:

Industry-Supported Efforts that Highlight Parental Controls

The TV Boss

Pause Parent Play

Control Your TV.org

Take Parental Control

Finally, there are several other excellent websites supported by media

enterprises that offer parents excellent advice on media ratings and parental controls,

87

See Adam Thierer, The Progress & Freedom Foundation, Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process,” Progress on Point 12.22, Nov. 2005, www.pff.org/issues-pubs/pops/pop12.22indecencyenforcement.pdf

http://www.pff.org/issues-pubs/pops/pop12.22indecencyenforcement.pdf




such as: TV Watch,88 The TV Boss.org,89 Pause-Parent-Play,90 Control Your TV.org,91 and Take Parental Control.org.92 Some of these efforts are discussed further in Section II.D and IV.C. E. The Ultimate Parental Control: The Power of the Purse

Finally, it is important that we not forget what, at times, constitutes the ultimate parental control tool: the “power of the purse.” In most cases, when kids want to consume a certain type of media—or even consume something they see advertised in the media—they need money to do so. Televisions, movies, video games, cell phones, computers, portable music players, Internet connections, and so on, do not just drop from high-tech heaven into our kids’ laps!93 When kids want those things—or want things that are advertised on those media platforms—they must go to their parents and ask them for money. And, although at times it may be difficult, we all have the power to say “No.”94

Parents can, and do, establish media budgets to better control what their kids

see, hear, or play.95 Many of the technologies discussed in Section III can facilitate the creation and enforcement of such household media budgets or allowances. Many new parental control tools incorporate sophisticated bill monitoring and spending control tools. For example, most TV set-top boxes, video game consoles, and cell phones have tools that can limit media spending or at least give parents a clear report on how much money has been spent. These tools can help parents enforce whatever media budget they establish for their children.

88

www.televisionwatch.org

89 www.thetvboss.org

90 www.pauseparentplay.org

91 www.controlyourtv.org

92 http://takeparentalcontrol.org

93 Indeed, many of these technologies and types of media are out of the financial reach of most kids.

Most new video games cost $40-$60 per title. DVDs are $10-$25. Cable subscriptions run at least $50 per month. While most websites are free, the computers and Internet connections needed to access them are not. Finally, most kids can’t afford cell phones and monthly subscriptions, and they are not old enough to sign up for service anyway. So parents must be involved in all these media decisions.

94 See David Walsh, PhD, No: Why Kids—of All Ages—Need to Hear It and Ways Parents Can Say It (New

York: Free Press, 2007).

95 See Sharon Miller Cindrich, e-Parenting: Keeping Up with Your Tech-Savvy Kids (New York: Random

House Reference, 2007), at 8-9.

http://www.televisionwatch.org/

http://www.thetvboss.org/

http://www.pauseparentplay.org/

http://www.controlyourtv.org/

http://takeparentalcontrol.org/



Informal Household Media Rules and Tips for Parents: Always be willing to sit down and talk to your kids about controversial and

provocative media programming. Teach them the difference between fantasy and reality. Explain what is right or wrong from your perspective. And do it all in an open, understanding, and loving fashion.

Strongly consider removing televisions, game consoles, computers, and other media devices from kids’ bedrooms. Parents who allow their kids to lock themselves in their rooms with media technologies have surrendered their first line of defense.

Establish household rules governing when and where children can watch TV, play video games, surf the Internet, and so on.

Use third-party ratings or advice to help construct a balanced “media diet.”

Create carrot-and-stick incentives to encourage your kids to complete other important tasks before allowing media usage.

Establish a media budget that limits how much kids are allowed to spend overall or on certain types of content, software, or devices.

Teach children basic etiquette as they start to use more interactive media and technologies, such as cell phones, instant messaging, blogs, and social networking websites.

Finally, remember that you were a kid once too! Teach your children what you’ve learned and teach them how to be smart media viewers and consumers. With a little guidance and common sense, they’ll become savvy and discriminating media consumers just like you.



III. Ratings Systems and Technological Controls for Various Media

This section will explore the ratings, labeling systems, and technological tools that can help parents manage various media devices or different types of content. Although there is some overlap in the discussions about the various ratings and controls discussed, each major type of media content or platform—television, movies, music, wireless, video games, and Internet / computing—will be discussed separately. Before detailing those parental controls, however, a few words of caution are in order to ensure that neither parents nor policymakers have inflated expectations about the role or importance of parental control technologies. A. How Many Homes Really Need Parental Controls?

First, it is vital to understand that not every U.S. household needs parental controls.96 Indeed, the number of families that might need or want these tools is smaller than most think. 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.97

96

This portion of the report is condensed from: Adam Thierer, The Progress & Freedom Foundation, Who Needs Parental Controls? Assessing the Relevant Market for Parental Control Technologies, Progress on Point 16.5, Feb. 27, 2009, www.pff.org/issues-pubs/pops/2009/pop16.5parentalcontrolsmarket.pdf

97 “*T+he FCC must be careful not to confuse the lack of ubiquitous usage of a particular technology with a

lack of empowerment or a lack of available tools.” Comments of Microsoft Corp., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 15, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213691

http://www.pff.org/issues-pubs/pops/2009/pop16.5parentalcontrolsmarket.pdf





To better understand why this is the case, consider an analogy. Imagine a survey or study that gauged the efficacy of protective child cabinet locks by asking whether all U.S. household employed such safety measures on kitchen and bathroom cabinets. Such a survey would yield truly absurd results. The vast majority of Americans have no need for baby locks because they either: (a) have no children present in the home, (b) their children are of an age where such locks are not needed, or (c) they take other steps to protect their children from harmful products that might be in the home. Thus, any survey or study that evaluated the success of child safety cabinet locks by using all households as the relevant universe of analysis would produce highly skewed, inaccurate results. Such a survey or study would conclude that few households use such controls and, therefore, those controls are a failure, even though that is an illogical conclusion based on a faulty statistical method. Regrettably, a similar statistical fallacy plagues discussions about parental control technologies today. Only a small percentage of households need parental controls, yet many surveys or critiques of parental control technologies suffer from similar statistical flaws by over-estimating the relevant universe of households.98 A more accurate methodological approach to studying this issue can be conducted using U.S. Census Bureau data to determine which households have children and might need to employ parental control technologies. According to the Census Bureau’s Statistical Abstract of the United States, as of 2007, over 68 percent of American homes did not have any children under 18 years of age in residence.99 (Stated differently, only 32% of U.S. households have children in them). This percentage is calculated as follows:

98

Adam Thierer, The Progress & Freedom Foundation, Distorting Numbers in the Debate over Parental Controls,” PFF Blog, March 26, 2007, http://blog.pff.org/archives/2007/03/distorting_numb.html

99 U.S. Census Bureau, 2008 Statistical Abstract of the United States, Table No. 58,

www.census.gov/compendia/statab/tables/09s0058.pdf

Not every U.S. household needs parental controls. Indeed, the

number of families that might need or want these tools is smaller than

most think.

Media rating and content-labeling

efforts are not an exact science; they are fundamentally subjective

exercises. Ratings are based on value judgments made by humans who all have somewhat different

values.




values.




values.




http://blog.pff.org/archives/2007/03/distorting_numb.html

http://www.census.gov/compendia/statab/tables/09s0058.pdf



Exhibit 8: Formula for Calculating the Percentage of Households without Children

Nonfamily Households + Family Households without own Children100 ÷

Total Households =

% of Households without Children

Thus, using recent Census Bureau data, the percentage of homes without children for 2007, the most recent year for which data is available, can be computed as follows:

Exhibit 9: Households without Children Calculation for 2007

37,587 + 41,668 ÷

116,011 =

68.3%

Incidentally, the number of homes without children in them has been steadily rising for many years. The adjoining exhibits present a breakdown of the Census Bureau data for select years from 1960 to the present.

100

According the Census Bureau, a nonfamily household “can be either a person living alone or a householder who shares the housing unit only with his or her nonrelatives—for example, boarders or roommates.” A family household “has at least two members related by birth, marriage, or adoption, one of whom is the householder. Family households are maintained by married couples or by a man or woman living with other relatives—children may or may not be present.” Obviously, the relevant subset of those family households for this analysis would be those without any children present. See U.S. Census Bureau, America’s Families and Living Arrangements: 2003, Nov. 2004, at 2, www.census.gov/prod/2004pubs/p20-553.pdf

http://www.census.gov/prod/2004pubs/p20-553.pdf



Exhibit 10: Breakdown of U.S. Households With and Without Children

Exhibit 11: Steady Decline of Homes With Children Present

This makes it clear why it is illogical to survey all homes about parental control usage. It is highly unlikely adult-only homes would be using parental controls or blocking services when they have the ability to block objectionable content and communications in other ways.101 Thus, the relevant universe of homes that should be considered when

101

Of course, some adult-only households with heightened sensitivities about certain types of programming might use some blocking or filtering tools to keep unwanted content or communications out of the home. It seems more likely, however, that those households would simply avoid such



evaluating usage of parental control technologies would only be those 32% of U.S. households with children present. Actually, the Relevant Universe is Even Smaller… The actual relevant universe of homes, however, is likely much smaller than the 32% of homes with children present. Even in those homes with children in residence, most of those families will not need to use parental control technologies for children under a certain age (say 5 or 6 years) or older than a certain age (perhaps 15 or 16).

For example, many parents tightly control their children’s media consumption habits before they reach a certain age. Before the age of six, for example, parents can (and do) employ a wide variety of household rules and methods to control media and communications in the home. As noted in the previous section, household media rules that often serve as a substitute for parental control technologies.102

Likewise, after children reach a certain age—especially as they get closer to leaving home—the training wheels come off, so to speak, and parents begin to trust their children to make more media decisions on their own. Or, better yet, parents talk to their kids about objectionable content and communications, but likely without rigid parental control technologies in place. Many parents of teenage children also use various household media rules, especially “carrot-and-stick” incentives, to encourage them to use media and online connections in a wise (or limited) fashion.

Some policymakers have acknowledged these realities. For example, in August 2007, Rep. Ed Markey (D-Mass.), former chairman of the House Telecommunications & Internet Subcommittee, was asked by Broadcasting & Cable if existing TV ratings and the V-Chip were effective or needed tweaking. In response, Markey noted:

The evidence is that parents who have small children and know about the V-chip use it at relatively high levels and like it. Obviously, most families aren't in that situation, meaning that they don't have small children. So it’s not something that every person is going to be talking about because it would never occur to them to use a V-chip in 85% or 90% of all homes. So it’s in that subset of homes that, among the parents who know about it, there is a very high degree of satisfaction.103

material by choosing not to subscribe to certain services or just changing channels and only visiting certain trusted websites.

102 See Section II

103 Quoted in John Eggerton, Ed Markey on TV Violence, Media Ownership and the Digital Transition, Broadcasting & Cable, Aug. 20, 2007, [emphasis added] www.broadcastingcable.com/article/CA6470038.html?display=Breaking+News&referral=SUPP&nid=2228

http://www.broadcastingcable.com/article/CA6470038.html?display=Breaking+News&referral=SUPP&nid=2228

http://www.broadcastingcable.com/article/CA6470038.html?display=Breaking+News&referral=SUPP&nid=2228



Markey is correct that those homes with much older children would likely not need to utilize the V-Chip, but it’s also just as true for those households with very young children, for the reasons stated above.

Putting these two pieces of information together, the adjoining exhibit depicts when it is most likely that parental control technologies will be used in the home (for those homes in which children are present). If anything, this estimate (at least for teens) may be a bit conservative since the window when parental controls may be relevant could be even narrower for many families.

Exhibit 12: Ages When Parental Controls Most Likely Needed

… and Smaller Still Another important consideration is that, for whatever reason, some parents rarely, or never, employ parental control technologies in the home, even when their kids are in the age band where those technologies would be most helpful. A significant, but unknown, number of parents reject parental control technologies for a combination of the following reasons:

they have an aversion to parental control technologies, perhaps fearing it creates distrust between them and their kids;

they don’t think parental control technologies work;



they believe their own household media rules and restrictions constitute a more sensible approach;

they feel comfortable making their own judgments after consulting ratings, program guides, and other information provided by media providers or third party media watchdog or rating organizations;

they just don’t allow many media or communications devices in the home;

or perhaps some of them are just lazy!

The fact is, every family is different, with unique values and preferences regarding media consumption and interactive communications. But simply because some households choose not to use parental control technologies, it does not necessarily mean they are not taking other steps to control media, monitor communications, or mentor their children. The Big Picture: Only a Small Percentage of Households Need Parental Controls Recognizing that every family is different and will bring different needs, values, and approaches to the task of raising children, the adjoining exhibit depicts just how narrow of a slice of the overall universe of U.S. households actually needs parental control technologies. In essence, only a small subset of the subset of homes with children present will ever need parental control technologies. While we know with certainty the percentage of that first subset—32%—there is no way to accurately measure the second “subset of the subset” of homes. But I believe it is reasonable to assume that of those 32% of homes with children present, at least half of them have little need for parental control technologies. The many other factors identified above mean that many of those 32% of homes with children will forgo, or have no need for, parental control technologies.



Exhibit 13: Who Needs Parental Controls?

B. Understanding the Role and Limits of Parental Controls

Another important caveat about parental controls relates to their inherent limitations. As mentioned at the outset, no rating system is perfect and no parental control tool is foolproof. Many critics are fond of pointing to supposed deficiencies in certain rating systems or technological controls and then attempt to use those problems to indict all voluntary ratings or private controls. But ratings and parental control tools need not be perfect to be preferable to government regulation. [For a fuller exploration of these issues, see the Appendix, “Thoughts on Mandatory Controls, Restrictive Defaults and “Universal” Ratings.”+ Let’s consider ratings first. What critics consistently forget—or perhaps intentionally ignore—is that media rating and content-labeling efforts are not an exact science; they are fundamentally subjective exercises. Ratings are based on value judgments made by humans who all have somewhat different values. Those doing the rating are being asked to evaluate artistic expression and assign labels to it that provide the rest of us with some rough proxies about what is in that particular piece of art, or what age group should (or should not) be consuming it. In a sense, therefore, all rating systems will be inherently “flawed” since humans have different perspectives and values that they will use to label or classify content.



Moreover, as Drs. Lawrence Kutner and Cheryl K. Olson, cofounders and directors of the Harvard Medical School Center for Mental Health and Media, note in their book Grand Theft Childhood: The Surprising Truth about Violent Video Games, “No [rating] system will ever be able to scrutinize and label all potentially offensive or upsetting content. The more complicated a system becomes, the less likely busy parents are to understand it and to actually use it.”104 Likewise, technological controls will always be hindered by certain inherent limitations. Technologies, markets, and artistic expression all evolve, and they do so at an increasingly rapid pace in our modern Information Age. Moreover, controls can be cracked or circumvented. There’s always someone out there—including, all too often, our own children—who are looking to evade technological controls.105

For these reasons, there will always be some critics who will argue that someone—presumably themselves or the government—can devise better ratings or controls. But, even setting aside the clear First Amendment concerns it would raise, there is no reason to believe that the government could actually do a better job.

If the government were responsible

for assigning content ratings or labels, for example, five unelected bureaucrats at the Federal Communications Commission or some other regulatory agency would simply substitute their own values for those of the voluntary rating boards or other labeling organizations in existence today. And the argument that government would provide more objective ratings or effective controls is also undermined by the grim reality of special-interest politics. Government officials would be more susceptible to various interest group pressures as they were repeatedly lobbied to change ratings or restrict content based on widely varying objectives and values. Inevitably, as has been the case with the broadcast indecency complaint process in recent years, a handful of particularly vociferous groups could gain undue influence over content decisions.106 That

104

Lawrence Kutner & Cheryl K. Olson, Grand Theft Childhood: The Surprising Truth about Violent Video Games (New York: Simon & Schuster, 2008), at 186.

105 Tom A. Peter, Internet Filters Block Porn, But Not Savvy Kids, Christian Science Monitor, April 11, 2007, www.csmonitor.com/2007/0411/p13s02-lihc.htm

106 Adam Thierer, The Progress & Freedom Foundation, Examining the FCC’s Complaint-Driven Broadcast Indecency Enforcement Process, Progress on Point 12.22, Nov. 2005, www.pff.org/issues-pubs/pops/pop12.22indecencyenforcement.pdf

Media rating and content-labeling efforts are not an exact science; they are fundamentally subjective exercises. Ratings are based on value judgments made

by humans who all have somewhat different values.






by humans who all have

http://www.csmonitor.com/2007/0411/p13s02-lihc.htm





possible outcome raises what the Supreme Court has referred to as the “heckler’s veto” problem since a vocal minority’s preferences could trump those of the public at large.107

With private, independent rating and labeling systems, by contrast, those

assigning ratings or labels are intentionally isolated from lobbying or other interest group pressures. This is what makes the argument for “transparency” in rating systems so disingenuous, or even somewhat dangerous. If transparency means forcing raters to be exposed to endless special-interest lobbying or other pressures, one wonders if that would really produce a better system. It would more likely produce a system that bowed to those pressures. For example, if those assigning video game ratings were not anonymous, they might be harassed by both game developers (who want to make them more lax) and game critics (who want to make them more stringent).108 This does not mean the raters ignore public input. To the contrary, private rating boards and labeling bodies poll the public and monitor what critics are saying to adjust their ratings accordingly. But if the government forced their ratings systems to be open to all who cared to provide input (including the public policymakers themselves), it would result in a circus-like atmosphere and little content would get rated in a timely manner.109 Similarly, there is no reason to believe the government could construct more rigorous parental controls or screening technologies. Consider Internet filters, for example. Starting with the passage of the Communications Decency Act of 1996, there have been endless political debates about the efficacy of private filters relative to government content controls. Policymakers typically argue that regulation is needed because filters are not 100 percent effective in blocking pornography or other types of objectionable online content.

107

Reno v. ACLU, 521 U.S. 844, 880 (1997).

108 Adam Thierer, The Progress & Freedom Foundation, Can Government Improve Video Game Ratings? PFF Blog, Oct. 26, 2006, http://blog.pff.org/archives/2006/10/can_government.html

109 As Competitive Enterprise Institute analysts Cord Blomquist and Eli Lehrer argue, “A federally mandated video game rating system would require committee hearings, committee mark-up sessions, and floor debate. At the end of this process a new federal regulatory agency would exist, or an existing agency’s powers would be expanded. Proposed changes in the system could require Congress to act, starting the legislative process anew. By contrast, the ESRB can respond swiftly to developments in the industry that require any adjustment in the ratings system.” Cord Blomquist and Eli Lehrer, Competitive Enterprise Institute, Politically Determined Entertainment Ratings and How to Avoid Them, Issue Analysis, No. 12, Dec. 2007, at 22, http://cei.org/pdf/6292.pdf

Instead of thinking of ratings and technological controls as absolute controls, it makes more sense to think of them as training wheels

and speed bumps.


and speed bumps.


and speed bumps.


and speed bumps.


and speed bumps.


and speed bumps.


http://blog.pff.org/archives/2006/10/can_government.html

http://cei.org/pdf/6292.pdf



No doubt this point is true, but what of it? During a recent trial about the merits of the Child Online Protection Act (COPA) of 1998, the Department of Justice (DOJ) introduced evidence showing that major filters blocked sexually explicit content 87.4 to 98.6 percent of the time,110 and the judge in the case concluded that filters generally block an average of 95 percent of sexually explicit material.111 The DOJ seemed to suggest that this was not good enough, but would government regulation really produce a better track record than that? It’s doubtful, especially because the government is largely powerless to control offshore activity. Private filters, by contrast, can capture objectionable offshore material. Private filters can also use industry standard identification systems to allow legitimate rated commercial content to be seen while screening out unknown or unrated content. And new methods are being developed and deployed to monitor and identify content, such as image-recognition technologies, which can further facilitate screening and filtering.

Exhibit 14: Internet Education Foundation’s Ratings Equivalency Matrix

110

For a breakdown of how successful various filters were, see www.aclu.org/freespeech/internet/27490res20061120.html

111 American Civil Liberties Union v. Gonzales, No. 98-5591 (U.S. District Court, Eastern District of Pennsylvania, March 22, 2007), at 35, www.cdt.org/speech/copa/20070322copa.pdf.

http://www.aclu.org/freespeech/internet/27490res20061120.html

http://www.cdt.org/speech/copa/20070322copa.pdf



Moreover, it is reasonable to assume that a market of commercial filters and other technological controls will flourish if governments promote industry experimentation rather than impose a “one-size-fits-all” regulatory model. A marketplace of controls and filters can then develop that is more closely tailored to the diverse values of the citizenry. Government controls, by contrast, essentially treat all households as having the same needs and values, which we know is not the case. Even though not all private filters will be equally effective, failure will be detected more rapidly and the better systems will gradually win out as all legitimate content is tagged and rated. In sum, flexibility is crucial. A 2009 filing by the Microsoft Corporation to the FCC eloquently made the case why this is so vital:

[W]hile convergence is coming quickly, it is impossible to predict how various media types, platforms, and delivery mechanisms will ultimately interact. Thus, it will be critical for industry, working in concert with ratings and classifications bodies and consumer and family groups, to have continued flexibility in addressing these changes. While government can and should help make parents and caregivers aware of the availability of access control tools and how to use them, government requirements could stymie the emergence of innovative solutions, and specific technical mandates could prevent the best solutions from getting to market because of the need for backward compatibility with restrictions that quickly become outdated.112

Finally, it is important to keep our expectations about parental controls in check. As mentioned at the outset, instead of thinking of ratings and technological controls as absolute barriers, it makes more sense to think of them in terms of training wheels and speed bumps. In other words, if we want to make our kids slow down and be more cautious, we can affix training wheels to their bikes when they are young and add more speed bumps along the roads they travel once they start to drive. But even with training wheels, kids will still fall off their bikes sometimes. And long after they learn how to ride without training wheels and have given up their bikes for cars, speed bumps can only slow them down so much; they won’t stop them from speeding entirely.113 Realizing that technical controls won’t work perfectly in those contexts, what do we do about it as parents and a society? We promote better industry-wide safety designs, we add layers of protection, and we try to educate our children about the

112

Comments of Microsoft Corp., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 18-19, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213768

113 Nancy E. Willard, author of Cyber-Safe Kids, Cyber-Savvy Teens, argues that “Placing significant reliance on parental controls may end up backfiring, because such reliance often leads to false security. … The biggest problem with the promotion of protection technologies is that these technologies will never be totally effective.” Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), at 31, 33-4.




dangers they face. When they are young and still riding bikes, we make them wear helmets, warn them of the dangers of traffic, and tell them to slow down. And when they become teenagers and get their first car, we make them wear their seat belts and avoid aggressive driving, and we still keep telling them to slow down! In sum, we use the protections and safeguards at our disposal while educating them about safe and responsible use.

This is the same mindset we need to adopt when it comes to parental controls and online child safety. The sections below illustrate how we can do so for every major media sector and technology. C. Television

Television programming remains the focus of more public policy debates than any other type of media content. That is not surprising given the continued centrality of television as a mass medium and cultural phenomenon in our society. Even as consumption of other types of content increases, television still reigns as the king of the media hill. Luckily, numerous tools and methods exist by which parents can restrict consumption of objectionable television programming in the home and tailor the video programming their children see on their various media devices. The V-Chip and TV Ratings As a standard feature in all televisions 13 inches and larger built after January 2000, the V-Chip gives households the ability to screen televised content by ratings that are affixed to almost all programs.114 The V-Chip can be accessed through the setup menus on televisions, or is often just one click away using a designated button on the TV’s remote. Households can then use password-protected blocking to filter programs by rating. The rating system, available online at www.tvguidelines.org/ratings.htm, offers seven age-based designations:

114

It is important to realize that most video consumed on televisions today is not from traditional broadcast stations. New video distribution sources such as cable, satellite, DVD, Blu-Ray, and IPTV all inherit a social norm and cultural responsibility to allow parents controls that are easy to set once and enforce everywhere.

http://www.tvguidelines.org/ratings.htm



Exhibit 15: TV Ratings

All Children

Directed to Children Age 7 and Older

Directed to Older Children Due to Fantasy Violence

General Audience

Parental Guidance Suggested

Parents Strongly Cautioned

Mature Audience Only

The TV rating system also uses several content descriptors to better inform parents and all viewers of the nature of the content they will be experiencing.

Exhibit 16: TV Content Descriptors115

D Suggestive Dialogue L Coarse Language S Sexual Situations V Violence FV Fantasy Violence

115

The meaning of the content descriptors varies depending on the age-based rating to which they are attached. For example, “L” means “infrequent coarse language” when attached to a TV-PG rating and “strong, coarse language” when attached to a TV-14 rating. See www.tvguidelines.org/ratings.asp

http://www.tvguidelines.org/ratings.asp



These age-based ratings and content descriptors appear in the upper left hand corner of the screen at the start of each television program. If the program is more than one hour, the icon will reappear at the beginning of the second hour. (For some programs, the ratings appear after every commercial break). The ratings and descriptors also appear on the TV’s on-screen menus and interactive guides, on the TV networks’ websites, and in local newspaper or TV Guide listings. This information is also encoded and embedded into each TV program so that the V-Chip or other devices can screen and filter by ratings.116 The Federal Communications Commission also hosts a website that provides detailed instruction on how to use the V-Chip.117 “TV Watch,” a coalition of media experts and media organizations, provides a website with tutorials and tool kits to help parents program the V-Chip and find other tools to control television in the home.118 In September 2008, TV Watch launched a useful “Television Tools for Parents 101” guide to help explain ratings and technical television blocking controls.119 The TV Watch website also includes video tutorials explaining what the TV ratings mean and how to program the V-Chip in each television set.120 Similarly, an industry-sponsored campaign entitled “The TV Boss” (www.thetvboss.org) offers easy-to-understand tutorials explaining how to program the V-Chip or cable and satellite set-top box controls. As part of the effort, several public service announcements (PSAs) and other advertisements have aired or been published reminding parents that these capabilities are at their disposal. Importantly, the relatively low V-Chip usage rates among U.S. households should not be used as an excuse for government regulation of television programming. To reiterate what was noted in Sec. IIIA, some polls or surveys of V-Chip and parental control usage unfairly include all households in the sample group, which means they are including in their results the millions of households without children in them that have no incentive to use the V-Chip or any other parental control technologies.121 And because almost 68 percent of American homes do not have any children under 18 years

116

For a fuller description of how the TV ratings process was created and is currently administered see Joint Comments of The National Association of Broadcasters, The National Cable & Telecommunications Association, and The Motion Picture Association of America, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213659

117 www.fcc.gov/vchip

118 www.televisionwatch.org

119 “Television Tools for Parents 101,” TV Watch, Sept. 2008, www.televisionwatch.org/HelpForParents/toolsforparents.pdf

120 http://televisionwatch.org/springcleanyourtv/tvwsc.html

121 Adam Thierer, The Progress & Freedom Foundation, Distorting Numbers in the Debate over Parental Controls, PFF Blog, March 26, 2007, http://blog.pff.org/archives/2007/03/distorting_numb.html



http://www.fcc.gov/vchip


http://www.televisionwatch.org/HelpForParents/toolsforparents.pdf

http://televisionwatch.org/springcleanyourtv/tvwsc.html

http://blog.pff.org/archives/2007/03/distorting_numb.html



of age in residence, it means the universe of V-Chip users is narrower than most people realize. Moreover, the other caveats discussed above also apply here regarding the many homes that forgo any parental controls because they instead rely on informal household media rules. Or, even those homes with children in residence will not all need to use parental control technologies before a certain age or after a certain age because parents feel there are better approaches for those age groups.122

Exhibit 17: “TheTVBoss.org” Website

122

Interestingly, in an April 2009 filing to the FCC, TiVo pointed out that the take-up rate for their sophisticated, easy-to-use KidsZone technology [discussed in the following section] was generally on par with V-Chip usage:

Usage of both V-chip parental controls and KidZone is low. Between 30 and 35% of households with TiVo DVRs have children and among those households, KidZone usage has never exceeded the 15 to 16% V-chip usage found in the 2004 and 2007 studies by the Kaiser Family Foundation. Prior to the introduction of KidZone, TiVo found similar low usage of basic V-chip parental controls. When surveyed, however, parents who use KidZone report that they value the feature highly.

Comments of TiVo Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 4, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213640. While some might consider this to represent a form of market failure, it instead merely confirms what was revealed above: Not all homes have kids and not all parents find the need to use parental control technologies even when they are as easy-to-use as TiVo’s KidZone. Again, it is important to have reasonable expectations regarding the extent of parental control usage in U.S. households.




Finally, as discussed below, the vast majority of American homes now rely on many alternative technologies and methods to filter or block unwanted programming. Many families will forgo V-Chip capabilities in light of the alternative technological controls at their disposal. A November 2005 survey by the polling firm Russell Research revealed that twice as many parents frequently use the parental controls that offered by their cable and satellite providers as use the V-Chip controls built into their television sets.123 In other words, the V-Chip is just one of many tools or strategies that households can use to control television programming in their homes. Cable and Satellite TV Controls With almost 87 percent of U.S. households subscribing to cable or satellite television systems as of June 2006,124 the tools that multichannel video providers (cable, satellite, and telephone companies) offer to subscribers are a vital part of the parental controls mix today. Parental controls are usually just one button-click away on most cable and satellite remote controls and boxes.

Both analog and digital boxes allow parents to block individual channels and lock them with passwords so that children can’t access them. Newer, digital boxes offer more extensive filtering capabilities that allow programs to be blocked by rating, channel, title, or even time of day. Some systems even allow users to block the program descriptions on the interactive guide (for adult pay-per-view programming, for example) if families do not want them to be visible. VOD and PPV purchases can also be limited or blocked outright on some systems.

Those cable subscribers without digital set-top boxes can request that cable

companies take steps to block specific channels for them. This is done through “signal traps,” which are filters installed outside a cable customer’s home to block access to a specific channel. A comprehensive survey of the content controls that cable television providers make available to their subscribers can be found on the National Cable and Telecommunications Association’s (NCTA) “Control Your TV” website.125

123

Survey: Parents Combine Old-Fashioned TV Rules and Latest Blocking Technologies to Manage Kids’ TV, TV Watch, Press Release, Nov. 28, 2005, www.televisionwatch.org/NewsPolls/PressReleases/PR008.html

124 Federal Communications Commission, Thirteenth Annual Video Competition Report, MB Docket No. 06-189, Nov. 27, 2007, at 143, http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-07-206A1.pdf

125 http://controlyourtv.org. Additional details about the tools and programs offered by the cable industry can be found in a 2009 NCTA filing: The National Cable & Telecommunications Association, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213692

http://www.televisionwatch.org/NewsPolls/PressReleases/PR008.html


http://controlyourtv.org/




Exhibit 18: NCTA’s “ControlYourTV.org” Website

Aftermarket solutions are also available that allow parents to block channels. The “TV Channel Blocker” gives households the ability to block any analog cable channel between channels 2 and 86, including broadcast stations carried by the cable operator.126 Homeowners themselves can install the unit on the wall where the cable line enters the home. It can then block specific channels on any television in the home. The unit sells online for $99.99.

Satellite providers DIRECTV127 and EchoStar’s Dish Network128 also offer

extensive parental control tools via their set-top boxes. And telephone companies such

126

www.tvchannelblocker.com

127 www.directv.com/DTVAPP/global/contentPage.jsp?assetid=900007 and www.directv.com/DTVAPP/equipment/demoInfo.jsp?assetid=1100093. Also see Comments of DirecTV Network, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213618

128 www.dishtv.com/parental_faq.jsp. Also see Comments of DISH Network, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB

http://www.tvchannelblocker.com/

http://www.directv.com/DTVAPP/global/contentPage.jsp?assetId=900007

http://www.directv.com/DTVAPP/equipment/demoInfo.jsp?assetId=1100093


http://www.dishtv.com/parental_faq.jsp



as AT&T and Verizon are also getting into the video distribution business and offering similar tools. Many of the same set-top boxes deployed by the cable industry are also used by those telco providers. Therefore, the parental control capabilities are quite similar. (Incidentally, as the blending of the Internet and television continues with the rise of Internet protocol-based television delivery, there will be increased pressure for industry to rally around clear international standards for content identification and independent ratings. This should ensure that still more content gets rated and labeled.)

Importantly, as was mentioned in Section II.D, independent rating systems are

being developed and made accessible on some video distribution systems. TiVo, a leading digital video recorder (DVR) developer, has a partnership with the Parents Television Council, KIDS FIRST! and Common Sense Media to jointly develop TiVo KidZone Guides.129 Using ratings and information created by those groups, TiVo’s KidZone service lets parents filter and record only the content that those groups have deemed appropriate.130 In early 2009, Common Sense Media struck similar deals with satellite television provider DIRECTV as well as Tribune Media Services, a leading provider of entertainment information databases and electronic programming guides. Through the partnership with DIRECTV, Common Sense Media’s ratings and age-based information about TV shows and movies will be made available to DIRECTV subscribers—at first jus online and then later through set-top box programming guides.131 The Common Sense Media-Tribune Media Services agreement works much the same way.132 Because Tribune provides electronic programming guides and information to many major media operators, such as DISH Network, it means many more parents will have access to Common Sense Media ratings and information and be able to screen and block content accordingly.

Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213652

129 www.tivo.com/whatistivo/tivois/tv/index.html#kid_zone

130 Saul Hansell, TiVo to Offer Tighter Rein on Children’s Viewing, New York Times, March 2, 2006, www.nytimes.com/2006/03/02/technology/02tivo.html?_r=1&oref=slogin. Also see Comments of TiVo Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213640

131 Common Sense Media, DIRECTV and Commons Sense Media Form Partnership to Help Parents Choose Kid-Friendly Programming, Press Release, March 20, 2009, www.commonsensemedia.org/about-us/press-room/directv-partnership. Also see Comments of DirecTV Network, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213618

132 Common Sense Media, Tribune Media Services and Common Sense Media Announce Partnership to Help Parents Make Entertainment Choices, Press Release, April 8, 2009, www.commonsensemedia.org/about-us/press-room/press-releases/tribune-media-services-partnership


http://www.tivo.com/whatistivo/tivois/tv/index.html#kid_zone










Finally, some multichannel operators also offer subscribers the option of buying a bundle of “family-friendly” channels. For example, Dish Network offers a “DishFAMILY”133 and DIRECTV offers a “Family Package” bundle of channels.134 Many cable operators offer similar bundles, but parents must consult their local provider to get details since packages vary by zip code or county. Also, a unique satellite service called Sky Angel offers over 70 channels of Christian and family-friendly choice(s) that households can subscribe to if they want only religious programming to be available in their homes.135 Other Technological Control Measures For those families that want to block out televised programming aired during certain hours of the day or limit how much TV can be viewed at all, technological tools exist that can make that possible. The Family Safe Media website sells a half dozen “TV time management” tools that allow parents to restrict the time of day or aggregate number of hours that children watch programming.136 Most of these devices, such as the “Bob TV Timer” by Hopscotch Technology137 and the “TV Allowance” television time manager,138 feature PIN-activated security methods and tamper-proof lock boxes that make it impossible for children to unplug or reset the device. Parents can use these devices to establish a daily or weekly “allowance” of TV or game screen time and then let children determine how to allocate it. Similarly, “credit-based” devices such as the “Play Limit” box require children to place time tokens in a metallic lockbox to determine how much TV or game time is allowed.139 Parents can provide a certain allowance of tokens to restrict the overall amount of screen time. Another innovative technology to restrict children’s viewing options by children is the appropriately named the “Weemote.” It is a remote control made for children that has only a handful of large buttons. Parents can program each button to call up only those preset channels that they approve of for their children. No other channels can be accessed using the remote. The product has a suggested retail price of $24.95.140

133

www.dishnetwork.com/packages/detail.aspx?pack=DISHFamily

134 www.directv.com/DTVAPP/packProg/channelChart1.jsp?assetid=1000005

135 www.skyangel.com

136 www.familysafemedia.com/tv_time_management_tools_-_par.html

137 www.hopscotchtechnology.com

138 www.tvallowance.com

139 www.playlimit.com

140 www.weemote.com

http://www.dishnetwork.com/packages/detail.aspx?pack=DISHFamily

http://www.directv.com/DTVAPP/packProg/channelChart1.jsp?assetId=1000005

http://www.skyangel.com/

http://www.familysafemedia.com/tv_time_management_tools_-_par.html

http://www.hopscotchtechnology.com/

http://www.tvallowance.com/

http://www.playlimit.com/

http://www.weemote.com/



Exhibit 19: The “Weemote”

For those families looking to take more direct steps to specifically curb potentially offensive language heard on some televised programs, solutions are available. For example, over 12 million Americans currently use TVGuardian systems, which bill themselves as “The Foul Language Filter.”141 TVGuardian’s set-top boxes filter out profanity by monitoring the closed-caption signal embedded in the video signal and comparing each word against a dictionary of more than 150 offensive words and phrases. If the device finds a profanity in the audio feed, it temporarily mutes the volume and displays a less controversial rewording of the dialog in a closed-captioned box at the bottom of the screen. The device can also be tailored to individual family preferences to edit out references that some might consider religiously offensive. The service requires the purchase of a DVD player equipped with the TVGuardian filtering system as well as a one-time activation fee of $29.95. Video Empowerment: VCRs, DVRs & VOD One of the most important developments on the parental controls front in recent years has been the rapid spread of VCRs, DVD players, digital video recorders (DVRs), and video on demand (VOD) services.142 These technologies give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when it will be viewed. Using these tools, parents can tailor programming to their specific needs and values.143 If certain parents believed that their children should only be raised solely on reruns of The Lone Ranger and Leave it to Beaver, then these new media technologies can make it happen!

141

www.tvguardian.com

142 This section is condensed from: Adam Thierer, The Progress & Freedom Foundation, Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation, Progress on Point 14.20, Oct. 2007, www.pff.org/issues-pubs/pops/pop14.20DVRboomcontentreg.pdf

143 “*PVRs+ are quickly revolutionizing the way families watch television, with easy-to-use-systems and a convenience that every family can appreciate.” Sharon Miller Cindrich, e-Parenting: Keeping Up with Your Tech-Savvy Kids (New York: Random House Reference, 2007), at 172.

http://www.tvguardian.com/

http://www.pff.org/issues-pubs/pops/pop14.20DVRboomcontentreg.pdf



To use a personal example: My wife and I have developed a strategy of designating a specific television in our home for most of our children’s media consumption and then using a DVR to amass a large library of programming we believe is educational, enriching, and appropriate for them. As a result, when we allow our children some TV time, we always know that the episodes of Dora the Explorer, Go Diego Go, Blue’s Clues, and The Wiggles that we approve of for our kids will be available. Dozens of other programs can be cataloged and archived in this fashion and then supplemented with VHS tapes, DVDs, VOD downloads, and computer software. Needless to say, such content tailoring was not an option for families in the past. The following tools and technologies are helping to empower families to take more control over their video choices: VCRs and DVD players / recorders

Many households continue to use video tapes and DVDs to build libraries of preferred programming. Parents can either purchase original copies of programs on VHS or DVD, or they can record shows when they appear on television on VHS tapes or recordable DVDs. The Consumer Electronics Association (CEA) estimates that 85 percent of U.S. households have at least one VCR. That is down from a high of 91 percent in 2005. The number of VCRs in homes is declining steadily because consumers have been replacing them with DVD players and DVD recorders. According to CEA, 83 percent of households have at least one DVD player, up from 13 percent in 2000.

Of course, as Larry Magid of CBS News.com points out, “VCRs are a hassle. You

have to remember to program them, make sure you have a blank tape inserted, label and keep track of the recorded tapes, and insert them for the kids when they’re ready to watch.”144 Much the same is true of DVD recorders. That is why the rise of the next-generation digital media devices described below is so important. Those devices help parents simplify and automate the content tailoring process in their homes.

144

Larry Magid, TV Tips for Parents, CBS News.com, Aug. 2, 2002, www.cbsnews.com/stories/2002/08/07/scitech/pcanswer/main517819.shtml

One of the most exciting things about the modern parental

controls market-place is that families have the ability to better

tailor media programming to their particular needs or values.

One of the most exciting things

about the modern parental controls market-place is that

families have the ability to better tailor media programming to their

particular needs or values.
















http://www.cbsnews.com/stories/2002/08/07/scitech/pcanswer/main517819.shtml



Exhibit 20: VCR & DVD Player Usage

Digital video recorders (DVRs) / Personal video recorders (PVRs)

Considering the significant amount of buzz we hear about them today, it’s easy to forget that digital video recorders (sometimes referred to as personal video recorders) are not even a decade old yet. But when TiVo and ReplayTV hit the market in 1999, it helped usher in what many regard as a revolution in television.145 Those devices gave consumers an unprecedented level of control over their viewing experiences by allowing them to instantly pause, rewind, and fast-forward programming. DVRs also let consumers watch television on their terms by building an archive of desired programming. Today, all DVRs—including those sold or leased by cable, telco, and satellite operators—offer these features. Those tools and functions are particularly helpful to parents. “*DVRs] are quickly revolutionizing the way families watch television, with easy-to-use-systems and a convenience that every family can appreciate,” argues Sharon Miller Cindrich, author of e-Parenting: Keeping Up with Your Tech-Savvy Kids.146

145

Glenn Derene, The End of TV As We Know It, Popular Mechanics, June 14, 2007, www.popularmechanics.com/blogs/technology_news/4217964.html

146 Sharon Miller Cindrich, e-Parenting: Keeping Up with Your Tech-Savvy Kids (New York: Random House Reference, 2007), at 172.

http://www.popularmechanics.com/blogs/technology_news/4217964.html



Exhibit 21: Projected Growth of DVRs

The DVR revolution is certain to continue and spread. Consider these facts and recent marketplace developments:

“Consumers are beginning to embrace digital video recorders (DVRs) as they once did VCRs,” notes John P. Mello of the E-Commerce Times.147 Indeed, according to the Leichtman Research Group, a market research firm, more than one in every five U.S. households now have a digital video recorder, up from about one in every 13 households just two years ago.148 Leichtman Research also predicts that roughly 50 percent of all homes will have a DVR by 2011.149

147

John P. Mello, DVR Market Penetration: Riding a Provider-Powered Wave, E-Commerce Times, Sept. 26, 2007, www.ecommercetimes.com/story/trends/59497.html

148 Leichtman Research Group, DVRs Now In Over One of Every Five U.S. Households, Aug. 21, 2007, www.leichtmanresearch.com/press/082107release.html

149 Quoted in Mello, op. cit.

http://www.ecommercetimes.com/story/trends/59497.html

http://www.leichtmanresearch.com/press/082107release.html



Another market research firm, eMarketer, reports similar numbers, projecting that almost 22 percent of homes will have a DVR by the end of 2007.150 eMarketer estimates that household penetration will approach 45 percent of all homes by 2011. DVR unit sales continue to grow at a rapid pace. The CEA reports that DVR unit sales roughly doubled between 2006 (4.9 million units) and 2007 (8.9 million), and are projected to almost double again next year (16.7 million).

More importantly, DVR prices continue to fall steadily. The CEA reports that the average unit price for a DVR fell from $261 in 2003 to $177 in 2007, and it is projected to fall to $160 by 2008.

Exhibit 22: DVR Sales & Prices

150

eMarketer, Growing DVR Ownership Good for TV Ads, Aug. 20, 2007, www.emarketer.com/Article.aspx?id=1005279; eMarketer, 30 Percent of Homes to Have DVR Capability, Nov. 28, 2006, www.emarketer.com/Article.aspx?id=1004316

http://www.emarketer.com/Article.aspx?id=1005279




Exhibit 23: Projected Growth of VOD

Video on demand (VOD) services Video on demand services are also becoming more widely available to consumers, and many family-friendly options are available via VOD:

eMarketer estimates that VOD household usage will grow from 21.4 percent in 2005 to 42 percent in 2010.

According to SNL Kagan, “nearly 90 percent of U.S. digital cable subscribers had access to VOD, and 46 percent of all basic cable customers were offered the service at the end of the March [2007].”151

Pike & Fischer estimates that each home will be watching nearly two hours of on-demand content nightly by the end of 2012.152

151

SNL Kagan, VOD Availability Grows with Digital Platform, VOD & ITV Investor, No. 106, May 30, 2007, at 6, www.snl.com/products/samples/media_comm/kvi/sample1.pdf

152 Scott Sleek, Video on Demand Usage: Projections and Implications, Pike & Fischer, Oct. 2007, www.broadbandadvisoryservices.com/researchReportsBriefsInd.asp?repid=541

http://www.snl.com/products/samples/media_comm/kvi/sample1.pdf

http://www.broadbandadvisoryservices.com/researchReportsBriefsInd.asp?repId=541



Children’s programming represents a large and quite popular portion of the overall universe of VOD programming. “The results are in: Children’s programming is a hit for video on demand,” says Matt Stump of Multichannel News.153 VOD offerings from Nickelodeon, the Cartoon Network, and PBS’ Sprout have been wildly successful and shown that “kids’ TV rules on VOD” according to Stump.154 Last year, Comcast Corporation, the nation’s largest cable provider, also found that children’s programming was one of the most popular VOD categories.155

A Comcast poll of its most aggressive VOD and DVR users last year found that 85 percent of those customers indicate they “always have appropriate shows available for their children to watch.” Moreover, 65 percent of them said that they “have fewer conflicts about what to watch on TV” and 63 percent said that they “watch more television as a family” thanks to these tools.156

A 2005 study by Marquest Research revealed approximately 29 percent of VOD homes with kids reported watching VOD programming three or more times per week, compared with only 12 percent in VOD homes without kids.157

Computing devices & expanding IPTV options Many of these same content management tools are increasingly being bundled

into PC operating systems, interactive devices, online systems, and even video game consoles.

Microsoft’s Windows Media Center, for example, offers users sophisticated DVR

tools to record and catalog their favorite programming.158 Similarly, Myth TV is a free open source program that consumers can download to give their computers DVR functionality.159 Microsoft’s Xbox 360 video game console also allows consumers to download television and other video programming, and Sony is planning to expand its video on demand offerings.

153

Matt Stump, Kids’ TV Rules on VOD, Multichannel News, March 6, 2006, www.multichannel.com/article/CA6312983.html

154 Id.

155 Comcast Corporation, Comcast On Demand Tops Three Billion Views, Press Release, Sept. 6, 2006, www.comcast.com/About/PressRelease/PressReleaseDetail.ashx?PRID=46

156 Comcast Corporation, New National Survey Finds That On-Demand Television Services Have Positive Impact on Family Viewing Habits,”March 14, 2006, www.comcast.com/About/PressRelease/PressReleaseDetail.ashx?PRID=84

157 Cited in Daisy Whitney, Kids Get Their Way on TV, Advertising Age, March 13, 2006.

158 www.microsoft.com/windowsxp/mediacenter/default.mspx and www.microsoft.com/windows/products/windowsvista/features/details/mediacenter.mspx

159 www.mythtv.org

http://www.multichannel.com/article/CA6312983.html

http://www.comcast.com/About/PressRelease/PressReleaseDetail.ashx?PRID=46

http://www.comcast.com/About/PressRelease/PressReleaseDetail.ashx?PRID=84

http://www.microsoft.com/windowsxp/mediacenter/default.mspx

http://www.microsoft.com/windows/products/windowsvista/features/details/mediacenter.mspx

http://www.mythtv.org/



Internet protocol television, or “IPTV”, refers to a broad class of services that utilize Internet protocols to transmit digital video signals to the public.160 Many of the new services and technologies described above, such as VOD, are built on IPTV platforms. IPTV offers the potential for much greater capacity, configurability, and interactivity than traditional television distribution and storage methods.161

Falling Prices and Hyper-Tailored Content “What’s clear is the way we watch TV has changed, and greater change is coming,” concludes Buffalo News reporter Stephen T. Watson.162 Indeed, this video empowerment revolution will continue and expand. As the adjoining exhibit makes clear, the prices of these video technologies will continue to fall rapidly. Very soon, almost any family that wants these technologies will find them within their reach. Already, as of September 2007, TiVo’s most popular DVR cost just $99.99 and its latest high-definition unit recently debuted with a price tag of just $299.99. That is stunning considering that just a few years ago, top-of-the-line DVRs had far fewer capabilities, but were selling for well over $1,000.

Exhibit 24: Projected Average Prices for Selected Video Technologies

2003 2008 (est.)

% price reduction

VCRs $63 $46 -27%

DVD players $123 $90 -27%

DVD recorders* $271 $155 -43%

DVRs $261 $160 -39%

IPTV $175 $119 -32%

Source: Consumer Electronics Association, U.S. Consumer Sales and Forecasts, 2003-2008, July 2007. *Note: First year of DVD recorder data is for 2004.

Moreover, because many multichannel video operators essentially subsidize the cost of DVRs for their customers, it means that it will be very easy for every subscriber to have at least one in their home. “Before DVRs were a premium offering,” notes Steve

160

Nate Anderson, An Introduction to IPTV, Ars Technica, March 12, 2006, http://arstechnica.com/guides/other/iptv.ars/1

161 “Essentially, IPTV has the capability of condensing down the multiple channels of conventional cable and satellite television down into one or two video-on-demand streams. What’s more, IPTV holds the promise of lots of additional content, such as statistics pop-up boxes during sporting events, extra information about the show you’re watching, integrated IM clients, and whatever other added-value widgets content providers and users can dream up.” Glenn Derene, Buzzword: IPTV, Popular Mechanics, Jan. 17, 2007, www.popularmechanics.com/blogs/technology_news/4212160.html

162 Stephen T. Watson, Taking Control of the TV as DVRs Take Over, Buffalo News, Aug. 28, 2007.

http://arstechnica.com/guides/other/iptv.ars/1

http://www.popularmechanics.com/blogs/technology_news/4212160.html



Wilson, principal analyst for consumer video technologies with ABI Research. “Now they’re a standard offering.”163

Importantly, as these technologies grow more sophisticated they will also become more user-friendly.164 For example, TiVo already offers a feature called “TiVo Suggestions” that recommends shows users might enjoy based on their past programming choices. And TiVo’s “Universal Swivel Search” tool lets users engage in Google-like searches of their video programming lineup to find programs that match their preferences.165 Similarly, Philips Electronics recently demonstrated a prototype DVR that included its new “Personal TV Channel” system that quickly learns users’ preferences and creates personalized channels based on those tastes.166 The Philips system will also be able to monitor the personal preferences of different people in the home and create specialized program lists for each of them. That would allow parents to create one preference list for themselves and another for the kids.

Such tools and features will be further refined in coming years to allow DVRs and other IPTV devices to better “learn” a user’s preferences and help them build a library of programming that is right for them and their families. At some point very soon, we might even be able to speak to these machines and communicate our preferences even more clearly. One might imagine a “conversation” with your DVR in the near future that goes something like this: “I only want my kids to see shows like Blue’s Clues, Barney, Sesame Street, and Dora the Explorer. I like shows that help develop language and musical skills such as those. But I definitely don’t want my kids to see any shows that are rated above TV-Y, or that have profanity, or that have a lot violence in them.” After hearing your commands, the DVR then retrieves a list of shows that satisfy your criteria and you refine it to ensure that it’s right for your kids. In the future, there will also be many ways for independent organizations to “map” their content preferences onto digital empowerment devices. That is, organizations that independently rate or label media programming will be able to offer their content recommendations to media distributors so that viewers can call up shows approved by those groups. This is already happening today. For example, as mentioned above, TiVo has a partnership with the Parents Television Council, KIDS FIRST!, and Common Sense Media to develop “KidZone Guides.” Using ratings and information

163

Quoted in John P. Mello, DVR Market Penetration: Riding a Provider-Powered Wave, E-Commerce Times, Sept. 26, 2007, www.ecommercetimes.com/story/trends/59497.html

164 “As for features, only time will tell what companies think up,” notes Andrew D. Smith of the Dallas Morning News. Andrew D. Smith, Watch for More Choices from Your Cable TV Box, Dallas Morning News, July 31, 2007, www.dallasnews.com/sharedcontent/dws/bus/ptech/stories/DN-cablebox_31bus.ART0.State.Edition1.35ed73d.html

165 www.tivo.com/mytivo/domore/swivelsearch/index.html

166 John Blau, Philips Readies TiVo Rival, IDG News Service, Sept. 4, 2007, www.pcworld.com/article/id,136715-page,1/article.html

http://www.abiresearch.com/

http://www.ecommercetimes.com/story/trends/59497.html

http://www.dallasnews.com/sharedcontent/dws/bus/ptech/stories/DN-cablebox_31bus.ART0.State.Edition1.35ed73d.html

http://www.dallasnews.com/sharedcontent/dws/bus/ptech/stories/DN-cablebox_31bus.ART0.State.Edition1.35ed73d.html

http://www.tivo.com/mytivo/domore/swivelsearch/index.html

http://www.pcworld.com/article/id,136715-page,1/article.html



created by those groups, KidZone allows parents to filter and record only the content that those groups deem appropriate.167 As more content gets “tagged” by third-parties, one can image a future of infinitely searchable programming that allows parents to align their family’s viewing options with organizations they trust.

Exhibit 25: Educational / Entertainment Viewing Options for Children

ABC Family Channel (http://abcfamily.go.com)

Animal Planet (http://animal.discovery.com)

Anime Network (www.theanimenetwork.com)

Black Family Channel (www.blackfamilychannel.com)

Boomerang (www.cartoonnetwork.com/tv_shows/boomerang)

Cartoon Network (www.cartoonnetwork.com)

Discovery Channel (www.discovery.com)

Discovery Kids (http://kids.discovery.com)

Disney Channel (www.disney.go.com/disneychannel)

Encore WAM!

Familyland Television Network (www.familyland.org/content/Content.aspx?CategoryID=51)

FUNimation (www.funimation.com)

Hallmark Channel (www.hallmarkchannel.com)

Hallmark Movie Channel (www.hallmarkmoviechannel.com)

HBO Family (www.hbofamily.com)

History Channel (www.history.com)

KTV – Kids & Teens Television (www.ktvzone.com)

Learning Channel (http://tlc.discovery.com)

National Geographic Channel (http://channel.nationalgeographic.com/channel)

Nickelodeon (www.nick.com)

Nick 2

Nick Toons (http://nicktoonsnetwork.nick.com/home.html)

Noggin (www.noggin.com)

N Channel (www.the-n.com)

PBS (www.pbs.org)

PBS Kids (http://pbskids.org/go)

Science Channel (http://science.discovery.com)

Showtime Family Zone

Sprout (www.sproutonline.com)

Starz! Kids and Family (http://www.starz.com/appmanager/seg/s?_nfpb=true&_pageLabel=starz_kids_family)

Toon Disney (http://psc.disney.go.com/abcnetworks/toondisney)

Varsity World (www.varsityworld.com)

Family & Children’s Programming Options The overall market for family and children’s programming options also continues to expand quite rapidly. Thirty years ago, families had a limited number of children’s television programming options at their disposal on broadcast TV. Today, by

167

Saul Hansell, TiVo to Offer Tighter Rein on Children’s Viewing, New York Times, March 2, 2006, www.nytimes.com/2006/03/02/technology/02tivo.html?_r=1&oref=slogin

http://abcfamily.go.com/

http://animal.discovery.com/

http://www.theanimenetwork.com/

http://www.blackfamilychannel.com/

http://www.cartoonnetwork.com/tv_shows/boomerang

http://www.cartoonnetwork.com/

http://www.discovery.com/

http://kids.discovery.com/

http://www.disney.go.com/disneychannel

http://www.familyland.org/content/Content.aspx?CategoryID=51

http://www.funimation.com/

http://www.hallmarkchannel.com/

http://www.hallmarkmoviechannel.com/

http://www.hbofamily.com/

http://www.history.com/

http://www.ktvzone.com/

http://tlc.discovery.com/

http://channel.nationalgeographic.com/channel

http://www.nick.com/

http://nicktoonsnetwork.nick.com/home.html

http://www.noggin.com/

http://www.the-n.com/

http://www.pbs.org/

http://pbskids.org/go

http://science.discovery.com/

http://www.sproutonline.com/

http://www.starz.com/appmanager/seg/s?_nfpb=true&_pageLabel=starz_kids_family

http://psc.disney.go.com/abcnetworks/toondisney

http://www.varsityworld.com/




contrast, there exists a broad and growing diversity of children’s television options from which families can choose. The adjoining table highlights some of the more popular family- or child-oriented networks available on cable, telco, and satellite television today.

Importantly, this list does not include the growing universe of religious / spiritual television networks. Nor does it include the many family or educational programs that traditional TV broadcasters offer. Finally, the list does not include the massive market for interactive computer software or websites for children. Independent Television Rating Organizations Finally, if parents wish to independently verify official TV ratings, or just get more information about the content of specific shows, many services are available:

Common Sense Media’s (CSM) user-friendly website offers detailed TV reviews as well as user-generated reviews submitted by both parents and kids themselves.168 The site offers extremely detailed descriptions of almost every possible type of content that one might find in a given show. Finally, as mentioned above, CSM has partnered with leading video device makers (TiVo) and distributors (DIRECTV and Tribune Media Services) to make their ratings information make accessible to parents. With additional technological advancements, Common Sense Media’s ratings could be used to trigger screening and filtering controls on these devices and networks. (See Section II.D).

Plugged In Online’s website, a project of the religious group Focus on the Family, reviews many TV shows and as part of its review process considers the following elements: positive elements, spiritual content, sexual content, violent content, crude or profane language, drug and alcohol content, and other components.169

The Parents Television Council’s ParentsTV website offers a searchable “Family Guide to Prime Time Television”170 and awards a seal of approval to shows that it deems suitable for families.171

Formed in October 2007, the Smart Television Alliance (STA) is a collection of “leading nonprofit organizations representing millions of American parents, teachers, nurses and children” that came together “to promote quality television content for children.” The STA “encourage[s] families to use information from trusted sources to identify shows that inform and educate children and to utilize

168

www.commonsensemedia.org/tv-reviews

169 www.pluggedinonline.com/tv/index.cfm



http://www.commonsensemedia.org/tv-reviews

http://www.pluggedinonline.com/tv/index.cfm

http://www.parentstv.org/PTC/familyguide/main.asp




technology to control what is on television and when it is watched.”172 Founding members of the STA include the National Education Association, the National Parent Teacher Association, and the National Council of Women’s Organizations.173 The STA bases its recommendations on the work of other groups, including: the Coalition for Quality Children’s Media: KIDS FIRST!; the Parents Television Council; the Parents’ Choice Foundation; and Common Sense Media. The STA’s website provides parents with television recommendations by age groups (ages 3-6, 6-9, and 9-11) based on the programs approved by those organizations. The STA’s website also allows families who own a TiVo personal video recorder to instantly record the shows they like directly from the website.

Television Tips for Parents: Program the V-Chip in your televisions or the parental controls embedded in

your cable or satellite set-top boxes to block objectionable programming.

Use VCRs, DVD players, and digital video recorders (DVRs) to better control your family’s viewing habits.

Familiarize yourself with TV ratings (www.tvguidelines.org/ratings.htm) and also consult Common Sense Media (www.commonsensemedia.org) and other independent review sites to learn what others think about various TV programs.

Instead of placing TVs in bedrooms and allowing your children to watch shows unsupervised, consider placing the sets in a common area of the home so that you can keep can keep an eye (and ear) on the programming they are viewing.

Use VCRs, DVD players, VOD, and personal video recorders to build an appropriate diet of viewing material for your family, and only let you kids watch it when (and for how long) you believe it is appropriate.

Consider establishing household rules limiting the aggregate amount of time (on a daily or weekly basis) that children can spend watching television. Also, provide carrot-and-stick incentives for kids to use media sensibly.

Work with the parents of your child’s friends to devise appropriate viewing limits when they visit their homes.

Watch TV programming with your kids and tell them how you feel about what they are seeing or hearing.

172

Smart Television Alliance, Smart Television Alliance Launched to Help Parents Access Educational Children’s TV in Response to Violent and Indecent Programming, Press Release, Oct. 16, 2007, www.smarttelevisionalliance.org/site/PageServer?pagename=press_101607

173 Id.

http://www.tvguidelines.org/ratings.htm


http://www.smarttelevisionalliance.org/site/PageServer?pagename=press_101607



D. Movies

The MPAA Movie Rating System The motion picture industry has the longest-running and most widely recognized rating system in America. Established by the Motion Picture Association of America (MPAA) and theater operators in 1968, the MPAA’s familiar rating system includes the age-based designations are shown in adjoining exhibit.

Exhibit 26: The MPAA Movie Rating System

These ratings are accompanied by additional content descriptors explaining what viewers can expect to see in the movie. Both the ratings and content descriptors appear at the beginning of all movies—whether seen at a cinema or on VHS or DVD. When movies are sold on DVDs, the MPAA rating information is embedded on the discs in the form of machine-readable “metadata.” DVD players, gaming consoles, and other devices that can play DVDs can then read the ratings via the embedded metadata. That allows parents to block movies of a certain rating from playing on those devices. The MPAA also requires that the ratings appear on all promotional advertising (posters, TV ads, etc.). Finally, the MPAA’s website also features a search engine that allows the public to look for any movie it has rated since 1968 and find its rating and a description of the content.174 The MPAA also recently introduced the “Red Carpet Ratings Service,” which allows parents to sign up to receive a weekly report of the

174

www.mpaa.org/FilmRatings.asp or www.filmratings.com

http://www.mpaa.org/FilmRatings.asp

http://www.filmratings.com/



ratings of recently premiered movies.175 The MPAA has also been involved in a variety of cross-industry educational efforts that will be summarized in Section IV.C.

Exhibit 27: MPAA’s “Red Carpet Ratings” Service

Independent Movie-Rating Organizations As was the case with TV programs, if parents wish to verify MPAA movie ratings independently, or just get more information about the content of specific movies, there are many services to which they can turn:

Common Sense Media’s user-friendly website offers detailed movie reviews as well as user-generated reviews submitted by both parents and kids themselves.176 The site offers extremely detailed descriptions of almost every possible type of content that one might find in a given title. The organization also sells a booklet summarizing Really Great Movies for Kids & Families.177

175

www.mpaa.org/FlmRat_RedCarpet.asp

176 www.commonsensemedia.org/movie-reviews

177 Really Great Movies for Kids & Families (San Francisco, CA: Common Sense Media, 2007).

http://www.mpaa.org/FlmRat_RedCarpet.asp

http://www.commonsensemedia.org/movie-reviews



The Parent Previews website reviews new theatrical releases and DVDs according to an easy-to-understand A-F grading system.178 Four primary categories are graded (violence, sexual content, language, and drug or alcohol use) to determine the movie’s overall grade.

Kids-in-Mind is another online rating service that assigns films three distinct, category-specific ratings: one for sex and nudity, one for violence and gore, and another for profanity. Each review provides highly detailed listings of instances of those categories within a film. Each movie’s rating is on a scale of 0 to 10, depending on the quantity and context of what is shown. The site’s reviews also cover other themes that parents might want to discuss with their children, such as substance abuse, divorce, or the occult.179

ScreenIt.com is an online subscription-based movie review service ($24.95 per year) for parents looking for extremely detailed summaries of the content found in movies.180 It evaluates each movie title using 15 different criteria.

Plugged In Online’s website, a project of the religious group Focus on the Family, reviews many movies and DVDs and as part of its review process considers the following elements: positive elements, spiritual content, sexual content, violent content, crude or profane language, drug and alcohol content, and other negative components.181

The Parents Television Council’s ParentsTV website offers recent movie reviews182 and awards a seal of approval to movies that its deems suitable for families.183

BeliefNet.com’s Movie Mom website features reviews by Nell Minnow, author of The Movie Mom’s Guide to Family Movies.184

The Coalition for Quality Children’s Media is a national, not-for-profit organization founded in 1991 that seeks to teach children critical viewing skills and increase the visibility and availability of what it regards at quality children’s programming. On its KidsFirst website, it offers critical reviews of movies and

178

www.parentpreviews.com

179 www.kids-in-mind.com

180 www.screenit.com

181 www.pluggedinonline.com



184 http://blog.beliefnet.com/moviemom

http://www.parentpreviews.com/

http://www.kids-in-mind.com/

http://www.screenit.com/

http://www.pluggedinonline.com/

http://www.parentstv.org/PTC/publications/moviereviews/main.asp


http://blog.beliefnet.com/moviemom



other forms of children’s entertainment and provides a searchable database of recommended titles by age group.185 It also sponsors a film and video festival dedicated to “promoting excellence in children’s films and engaging children as film critics, curators and filmmakers.”186

Finally, some of the best information about what parents can expect to see and hear in movies comes from other parents who review them on sites like Amazon.com,187 Netflix.com,188 Metacritic.com,189 and the Internet Movie Database.190 Indeed, most movies listed on these sites contain hundreds of user-generated reviews that typically make it very clear what the movie contains and at what approximate age it is appropriate for viewing. Unofficial sources such as The Internet Movie Database also list major ratings that each movie has received by ratings organizations worldwide.

Independent Movie Screening Tools ClearPlay produces a unique DVD player that eliminates profanity, violence and nudity from certain movies.191 ClearPlay doesn’t produce preedited DVDs, rather, the company “create*s+ filtering information on a movie by movie basis, and then put[s] those ‘filters’ into the DVD player. By doing so the DVD player knows when to skip or mute while the movie is playing.”192 Therefore, consumers don’t have to purchase special DVDs; they just need to purchase a ClearPlay DVD player and download the codes for their movies to activate the filtering controls. The company’s MaxPlay DVD player retails for under $70 and comes loaded with the filters for about 1,000 popular movies. A monthly membership fee of $7.95 is required to access new movie filtering codes. ClearPlay’s technology raised some copyright concerns and was opposed by many movie directors and studios. But in 2005, Congress passed and President George W. Bush signed the Family Movie Act, which exempted services like ClearPlay from any copyright liability.193 However, other types of preedited DVD software service—

185

www.kidsfirst.org/kidsfirst

186 www.kidsfirst.org/kidsfirst/fabout.htm

187 www.amazon.com

188 www.netflix.com

189 www.metacritic.com

190 www.imdb.com

191 www.clearplay.com

192 www.clearplay.com/about.aspx

193 The Family Movie Act was part of the Family Entertainment and Copyright Act of 2005. President George Bush signed the measure into law on April 27, 2005.

http://www.kidsfirst.org/kidsfirst

http://www.kidsfirst.org/kidsfirst/fabout.htm

http://www.amazon.com/

http://www.netflix.com/

http://www.metacritic.com/

http://www.imdb.com/

http://www.clearplay.com/

http://www.clearplay.com/about.aspx



“scrubbed” DVDs—were ruled copyright violations by a U.S. district court judge in 2006 and are no longer available.194

Movie Tips for Parents: For movies seen within the home, follow the same guidelines outlined earlier for

general television viewing. Program the V-Chip, cable or satellite set-top boxes, and PC and video game console parental controls to block potentially objectionable movies from being seen (especially pay-per-view titles).

Use VCRs, DVD players, VOD, and DVRs to ensure that your children see only the movies you think are appropriate for them at a certain age. Build a library of your favorite material.

Familiarize yourself with MPAA ratings (www.mpaa.org/FilmRatings.asp) and also consult the many independent websites listed earlier to learn what other groups or parents think of the movies your kids want to see.

Again, keep TVs and other movie-playing devices out of kids’ bedrooms and in a common area of the home so that you can keep an eye on what they are viewing.

Work with other parents to devise appropriate viewing limits when your kids visit their homes.

Watch movies with your kids and tell them how you feel about what they are seeing or hearing.

E. Music and Radio

Album Ratings Since the mid-1980s, the music industry (working with retailers) has administered a voluntary parental advisory labeling program to give parents fair warning that a particular album might contain explicit lyrics about sex, violence, or drug use. The Recording Industry Association of America (RIAA) runs the program on behalf of record companies and producers who, working with their artists, decide which of their songs and products receive the explicit label.195 If they determine that a warning is appropriate, the industry’s widely recognized black-and-white “Parental Advisory – Explicit Content” label is affixed prominently to the outside of the permanent packaging and embedded in the digitally delivered files. They also have an option to release a “non-explicit” version of the same song or product with the appropriate modifications.

194

Keith Regan, Court Says Editing DVDs for Content Is Illegal, E-Commerce News, July 10, 2006, www.ecommercetimes.com/story/51667.html

195 www.riaa.com/parentaladvisory.php

http://www.mpaa.org/FilmRatings.asp

http://www.ecommercetimes.com/story/51667.html

http://www.riaa.com/parentaladvisory.php



Exhibit 28: The RIAA’s Explicit Content Parental Advisory Label

Retailers also prominently display the warnings regardless of how they choose to offer the products for sale; retail or digital. Many retailers have long-established procurement guidelines and refuse to sell “Explicit” labeled products to those younger than 18. Other retailers, such as Wal-Mart, refuse to carry such albums at all.

Satellite Radio SIRIUS-XM, a satellite radio service, offers subscribers a variety of plans to choose from including several that exclude any channels that might include programming with explicit language or lyrics. For example, the “Family Friendly” package196 excludes 17 channels197 that feature explicit language or graphic content. Alternatively, subscribers can simply purchase channels on an a la carte basis and avoid the channels they might find objectionable.198 Subscribers can also request that certain channels be blocked by contacting the SIRIUS customer service department.199 Apple iPod and Microsoft Zune Parental Controls Not every portable music player on the market today offers embedded parental control capabilities, but two major competitors in this space—Apple and Microsoft—do offer some controls and have standing commitments to improve these capabilities over time by working together with the music industry in standards-settings organizations. Apple’s wildly successful iPod is by far the most popular portable music player on the market today. Once users purchase an iPod, they also download iTunes software onto computers to transfer music onto their player or buy material online at Apple’s iTunes Store.200 At the iTunes Store, users can purchase songs and videos or download free online radio stations or podcasts. Music singles containing explicit lyrics have a bold red “EXPLICIT” label next to song title. Movies are clearly labeled with MPAA movie

196

www.sirius.com/packages/more#family

197 www.sirius.com/mature

198 www.sirius.com/packages/more#alacarte

199 www.sirius.com/dodge/faq.html#q8

200 www.apple.com/itunes/store

http://www.sirius.com/packages/more#family

http://www.sirius.com/mature

http://www.sirius.com/packages/more#alacarte

http://www.sirius.com/dodge/faq.html#q8

http://www.apple.com/itunes/store/



ratings and other content descriptors making it clear what type of content can be found in the title. Parents can find parental controls in the iTunes software on the main menu under “Edit / Preferences / Parental Controls.” Once there, they can disable all podcasts, online radio and music sharing, or they can disable access to the iTunes Store altogether. Less drastically, if they want to make the iTunes Store accessible, but limit what can be downloaded, they can designate the level of movie and TV ratings that are appropriate for their children and nothing rated above that level will be accessible. Furthermore, parents can restrict the downloading of any music that contains the “EXPLICIT” label on the site. Once appropriate settings are determined, parents can lock the software to prevent further changes.

Exhibit 29: Apple iTunes Parental Controls

Microsoft’s Zune portable media player also offers family settings that allow parents to control what their children can download from the Zune Marketplace website. According to the Zune website, before a child can create an online Zune account he or she must have parental consent:

When your child first signs up online for Zune, they enter (or you enter for them) their own Windows Live ID and account information, and then Zune asks for parental permission to continue creating the account. You give parental permission by using or creating a master Windows Live ID and entering some



credit card information to verify that you are an adult. (The credit card is not charged.)201

Parents can also establish their own family settings when creating an account for their children. Specifically, parents determine whether to allow their kids to purchase premium content or explicit content on the Zune Marketplace website. Like the iTunes Store, Microsoft’s Zune Marketplace contains some material marked as “explicit” and allows parents to block such material from being downloaded by their children. Parents can alter the settings at any time by going to the main menu and clicking “Account Management / Family Settings.”

Importantly, new music industry product identification solutions are developing that will facilitate parental control technologies in the future. For example, the Global Release Identifier (GRID) is the recording industry’s new product identification system that encourages those in the industry to embed product metadata in their digital music files.202 And the Digital Data Exchange (DDEX) is the music industry’s system for reporting and tracking these new digital music IDs.203

GRID and DDEX are primarily used by music companies, device manufacturers,

service providers, and technology implementers to track sales, gauge royalties, and monitor piracy. But embedded metadata can also include digital content labels and rating information that can facilitate screening capabilities. For example, on its Zune webpage, Microsoft outlines the type of metadata labels that content creators can include in their digital files that can then be read by the Zune.204 Parental ratings—for music, movies, and television—are among the metadata labels that Microsoft recommends. As these metadata labeling efforts expand, other consumer electronic device makers will also be able to include parental controls in their products that can read media labels and ratings. This will make it easier for parents to restrict potentially objectionable or age-inappropriate content on music players or other mobile media devices. Independent Rating Organizations Once again, as is the case with TV, movies, and video games, parents who want more information about the music their kids might want can use independent websites for their research. The Common Sense Media205 website provides detailed music reviews and details what parents can expect their kids to hear in the music they buy.

201

www.zune.net/en-us/support/howto/marketplace/familysettings.htm

202 www.ifpi.org/content/section_resources/grid.html

203 www.ddex.net/index.htm

204 www.zune.net/en-us/support/howto/start/providecontent.htm#section7

205 www.commonsensemedia.org/music-reviews

http://www.zune.net/en-us/support/howto/marketplace/familysettings.htm

http://www.ifpi.org/content/section_resources/grid.html

http://www.ddex.net/index.htm

http://www.zune.net/en-us/support/howto/start/providecontent.htm#section7

http://www.commonsensemedia.org/music-reviews



Similarly, Plugged In Online206 focuses on the “pro-social content” versus “objectionable content” found on each album it reviews. And user-generated reviews on sites like Amazon.com207 and Metacritic.com208 feature excellent product summaries that can help parents decide if various music titles are right for their kids. Finally, if parents want to examine the lyrics of the songs their children are listening to, they can find them at sites such as A-Z Lyrics Universe,209 Lyrics.com210 and LyricsMania.com.211

Music Tips for Parents: Look for “Explicit Lyrics” labels on music and determine the best course of action

for such music purchases. Consider “Clean Lyrics” versions for younger children.

Use parental controls embedded in digital music services to block music downloads with objectionable lyrics.

Consult independent rating websites (such as Common Sense Media.org and Plugged In Online.com) to learn what other parents think about music that you are considering buying for your kids or that your children are already listening to.

Check out the lyrics in the songs your kids are listening to by visiting websites such as Lyrics.com or LyricsMania.com.

Listen to music with your kids and talk to them about what you are hearing if you find it objectionable.

206

www.pluggedinonline.com/music

207 www.amazon.com


209 www.azlyrics.com

210 www.lyrics.com

211 www.lyricsmania.com

http://www.pluggedinonline.com/music



http://www.azlyrics.com/

http://www.lyrics.com/

http://www.lyricsmania.com/



F. Video Games

The ESRB Rating System Although it is the newest of all industry content rating and labeling schemes, the

video game industry’s system is in many ways the most sophisticated, descriptive, and effective ratings system ever devised by any major media sector in America. Established by the video game industry in 1994, the Entertainment Software Rating Board (ESRB) is a self-regulatory rating and labeling body.

The ESRB rating scheme is remarkably comprehensive. According to the ESRB, it

rates well over 1,000 games per year in most years and it rated 1,677 games in 2008. Virtually every title produced by major game developers for retail sale today carries an ESRB rating and content descriptors. The ESRB rates the vast majority of “professional” game content, but does not generally cover game developed by web “amateurs” that are freely traded or downloaded via the Internet. The ESRB applies six different rating symbols to the games it rates, in addition to a “Ratings Pending” (RP) placeholder rating symbol for game not yet rated. Those ratings are shown in the adjacent chart.

In addition to designating these ratings, the ESRB has over 30 different “content

descriptors” that it uses to give consumers highly detailed information about games. Thus, by simply glancing at the back of each game container, parents can quickly gauge the appropriateness of the title for their children. If parents want to do additional research in advance of a purchase, the ESRB’s website allows them to enter the name of any game and retrieve its rating and various content descriptors.

Moreover, in March 2008, the ESRB began offering an “ESRB Rating Search

Widget” that can be freely downloaded an installed on a user’s computer.212 It allows users to instantly search for any game title and retrieve its rating and content descriptors. Also, in November 2008, the ESRB announced it would be offering game “rating summaries” that offered “supplementary source of information about game content that parents can use when considering which games to purchase for their children.”213 Those rating summaries explain to parents and players the context and relevant content that led to the ESRB’s assignment of a specific rating. Those rating summaries are also accessible when searching for rating information via the ESRB website or through the ESRB search widget.

212

www.esrb.org/about/widget/widget-consumer.jsp

213 Entertainment Software Rating Board, ESRB Announces New Video Game Rating Summaries, Press Release, Nov. 12, 2008, www.esrb.org/about/news/downloads/ESRB_Rating_Summaries_Release_11.12.08.pdf

http://www.esrb.org/about/widget/widget-consumer.jsp

http://www.esrb.org/about/news/downloads/ESRB_Rating_Summaries_Release_11.12.08.pdf



Exhibit 30: ESRB Video Game Rating Categories214

214

www.esrb.org/ratings

http://www.esrb.org/ratings/ratings_guide.jsp



Exhibit 31: ESRB Content Descriptors

Alcohol Reference - Reference to and/or images of alcoholic beverages

Animated Blood - Discolored and/or unrealistic depictions of blood

Blood - Depictions of blood

Blood and Gore - Depictions of blood or the mutilation of body parts

Cartoon Violence - Violent actions involving cartoon-like situations and characters. May include violence where a character is unharmed after the action has been inflicted

Comic Mischief - Depictions or dialogue involving slapstick or suggestive humor

Crude Humor - Depictions or dialogue involving vulgar antics, including “bathroom” humor

Drug Reference - Reference to and/or images of illegal drugs

Fantasy Violence - Violent actions of a fantasy nature, involving human or non-human characters in situations easily distinguishable from real life

Intense Violence - Graphic and realistic-looking depictions of physical conflict. May involve extreme and/or realistic blood, gore, weapons and depictions of human injury and death

Language - Mild to moderate use of profanity

Lyrics - Mild references to profanity, sexuality, violence, alcohol or drug use in music

Mature Humor - Depictions or dialogue involving "adult" humor, including sexual references

Nudity - Graphic or prolonged depictions of nudity

Partial Nudity - Brief and/or mild depictions of nudity

Real Gambling - Player can gamble, including betting or wagering real cash or currency

Sexual Content - Non-explicit depictions of sexual behavior, possibly including partial nudity

Sexual Themes - References to sex or sexuality

Sexual Violence - Depictions of rape or other violent sexual acts

Simulated Gambling - Player can gamble without betting or wagering real cash or currency

Strong Language - Explicit and/or frequent use of profanity

Strong Lyrics - Explicit and/or frequent references to profanity, sex, violence, alcohol or drug use in music

Strong Sexual Content - Explicit and/or frequent depictions of sexual behavior, possibly including nudity

Suggestive Themes - Mild provocative references or materials

Tobacco Reference - Reference to and/or images of tobacco products

Use of Drugs - The consumption or use of illegal drugs

Use of Alcohol - The consumption of alcoholic beverages

Use of Tobacco - The consumption of tobacco products

Violence - Scenes involving aggressive conflict. May contain bloodless dismemberment

Violent References - References to violent acts

To ensure that its system is applied properly, major video game console manufacturers require that the rating is digitally available in the metadata or product description so the console or PC can identify and screen the content in advance. Moreover, as noted below, the ESRB requires that game publishers display ratings in advertising and marketing materials in all media, as well as fully disclose all pertinent content to the ESRB. Companies that do not comply with ESRB marketing and disclosure requirements can be fined by the ESRB or subject to other sanctions, including potential product recall.

Surveys have shown that most parents find the ratings and labels very helpful. Surveys by Peter D. Hart Research Associates reveal that in 2008 86% of American



parents of children who play video games are aware of the ESRB ratings and 78% consult the ratings regularly when buying games for their families. 215 As the adjoining exhibit illustrates, these results have been increasing steadily since Hart Research Associates began conducting these surveys for the ESRB in 1999.

Exhibit 32: Parental Awareness & Use of Video Game Ratings is High

Importantly, surveys conducted by the Entertainment Software Association

(ESA), which represents the video game industry, have also shown a high level of parental involvement when games are purchased or rented. According to ESA surveys, the average age of a video game purchaser is 39, and 92 percent of the time parents are present when games are purchased or rented.216 Of parents surveyed, 77 percent said they find video game console parental controls useful.217

215

www.esrb.org/about/awareness.jsp

216 Entertainment Software Association, Essential Facts about the Computer and Video Game Industry: 2009 Sales, Demographics and Usage Data, 2009, at 3, 5, www.theesa.com/facts/pdfs/ESA_EF_2009.pdf

217 Id., at 6.

http://www.esrb.org/about/awareness.jsp




The U.S. Federal Trade Commission (FTC) has also conducted research about the ESRB rating system and found in 2007 that:218

89% of parents are involved in the purchase or rental of a video game for their child;

87% of parents were aware of the ESRB video game ratings system;

73% use ratings “all,” “nearly all” or “most of the time” when buying games;

87% reported being “very” to “somewhat” satisfied with ESRB ratings;

93% said ESRB ratings are “moderately” to “very easy” to understand.

Exhibit 33: Video Game Ratings By Year

Incidentally, contrary to popular belief, the vast majority of video games the

ESRB rates are not filled with violent content. Well over 50 percent of ratings assigned by ESRB are for titles rated “E” for “Everyone,” and adding in those titles rated “E10+” boosts the annual total over 60 percent most years, and 70 percent more recently. Meanwhile, the number of games rated “T” for “Teen” or “M” for “Mature” has been falling relative to the other options available.

Consequently, it would be difficult for policymakers or game critics to build the

case for video game regulation on the contention that most games made today contain

218

Federal Trade Commission Report to Congress, Marketing Violent Entertainment to Children, April 2007, www.ftc.gov/reports/violence/070412MarketingViolentEChildren.pdf

http://www.ftc.gov/reports/violence/070412MarketingViolentEChildren.pdf



extreme violence or sexuality. Moreover, while it is true that games rated “T” can include some violent content, it is typically not the sort of violence that would rise to a level of serious concern for most parents. For example, lightsaber fights in “Star Wars” games or knockouts in boxing games might qualify those titles for “T” ratings, but is that really the sort of violence that concerns most parents? It’s unlikely.

Exhibit 34: ESRB Ads and Promotional Materials

The ESRB also operates an Advertising Review Council (ARC) that monitors

advertising and marketing practices in the gaming industry. The ARC monitors compliance with ESRB guidelines and places restrictions on how game developers may



market ESRB-rated games through its “Principles for Responsible Advertising” and “Advertising Code of Conduct.”219

As part of its “OK to Play?” education campaign, the ESRB provides a variety of materials to retailers. The materials include an ESRB employee training manual and quiz about the rating system. According to the ESRB, the “OK to Play?” signage is displayed at 17 top national retailers who account for approximately 90 percent of all game sales. Prominent retailers involved in the effort include Wal-Mart, Best Buy, Target, Toys-R-Us, and Game Stop among others. These retailers, which are responsible for a significant portion of all video game sales, have enormous reputational incentives to abide by the ESRB rating system. Importantly, the in-store signage used by these and other game retailers is also reproduced as consumer advertising in various magazines, newspapers, websites, and so on. In 2005, the ESRB also created the ESRB Retail Council, “to facilitate regular communication and input for consideration on matters of common interest to U.S. computer and video game retailers and the ESRB.”220 The Retail Council commits retailers to supporting their game sales policies and also to conducting twice-annual audits of member retailers to test compliance with store policy and signage requirements.

Finally, as will be noted in a subsequent section on education efforts, in

November 2006 the ESRB announced an educational partnership with the Parent-Teacher Association (PTA) to “encourage and enable state and local PTAs to educate their community’s parents about the *ESRB+ ratings.”221 As part of this new education campaign, 1.3 million brochures were distributed to 26,000 PTAs nationwide in both English and Spanish. Additional online support and downloadable manuals and educational materials are available on both the ESRB and PTA websites.222 In 2008, ESRB expanded this partnership by producing and distributing a booklet entitled “A Parent's Guide to Video Games, Parental Controls and Online Safety” to PTAs nationwide.223 219

www.esrb.org/ratings/principles_guidlines.jsp

220 www.esrb.org/retailers/retail_council.jsp

221 Parent Teacher Association, PTA and ESRB Launch Nationwide Video Game Ratings Educational Partnership, Press Release, Nov. 15, 2006, www.pta.org/ne_press_release_detail_1163547309281.html

222 www.esrb.org/about/pta_partnership.jsp

223 Entertainment Software Rating Board, ESRB and PTA Launch New national Campaign to Educate Parents about Game Ratings, Parental Controls and Online Video Game Safety, Press Release, April 21, 2008, www.esrb.org/about/news/downloads/ESRB-PTA%20Press%20Release_4.21.08_F.pdf

The video game industry’s system is in many ways the most

sophisticated, descriptive, and effective ratings system ever

devised by any major media sector in America.

Although it is the newest of all

industry content rating and labeling schemes, the video game industry’s system is in many ways

the most sophisticated, descriptive, and effective ratings system ever










http://www.esrb.org/ratings/principles_guidlines.jsp

http://www.esrb.org/retailers/retail_council.jsp

http://www.pta.org/ne_press_release_detail_1163547309281.html

http://www.esrb.org/about/pta_partnership.jsp

http://www.esrb.org/about/news/downloads/ESRB-PTA%20Press%20Release_4.21.08_F.pdf



The ESRB has also developed several TV PSAs that were supported by federal

lawmakers,224 and state attorneys general Mark Shurtleff of Utah, Thurbert Baker of Georgia, and Steve Six of Kansas.225 In these TV spots, public officials encourage parents to use the video game ratings when buying games for their children and to set parental controls on gaming devices.226

The ESRB’s education and awareness-building efforts appear to be paying off, including at the point of sale regarding underage efforts to buy games. Since 2000, the Federal Trade Commission (FTC) has surveyed the marketing and advertising practices of major media sectors (movies, music and video games) in a report entitled Marketing Violent Entertainment to Children.227 The agency hires a research firm that conducts “secret shopper” surveys to see how well voluntary media rating systems (MPAA, ESRB, RIAA) are being enforced at the point of sale. The research firm then recruits a number of 13- to 16-year-olds who make an attempt to purchase such media without a parent being present.

The FTC reports show that ratings enforcement has generally been improving over time, and in the case of the ESRB system, it has improved dramatically. For example, the latest survey shows that whereas 85 percent of kids were able to purchase an M-rated video game in 2000, only 20 percent of them were able to do so when the most recent survey was conducted in 2008.228 That is an impressive turn-around in a very short period of time.

224

Entertainment Software Rating Board, Senators Hillary Rodham Clinton and Joe Lieberman Join ESRB to Launch Nationwide Video Game Ratings TV PSA Campaign, Press Release, Dec. 7, 2006, www.esrb.org/about/news/12072006.jsp

225 www.gamepolitics.com/2009/06/09/kansas-attorney-general-teams-esrb-ratings-awareness

226 These videos can be viewed at the “Media Library” on the ESRB website: www.esrb.org/about/media_library.jsp

227 Past FTC reports can be found at: www.ftc.gov/bcp/conline/edcams/ratings

228 Federal Trade Commission, Undercover Shoppers Find it Increasingly Difficult for Children to Buy M-Rated Games, Press Release, May 8, 2008, www.ftc.gov/opa/2008/05/secretshop.shtm

http://www.esrb.org/about/news/12072006.jsp

http://www.gamepolitics.com/2009/06/09/kansas-attorney-general-teams-esrb-ratings-awareness

http://www.esrb.org/about/media_library.jsp

http://www.ftc.gov/bcp/conline/edcams/ratings/reports.htm

http://www.ftc.gov/opa/2008/05/secretshop.shtm



Exhibit 35: FTC “Secret Shopper” Surveys Show Improved Retailer Enforcement

Console Blocking Controls Parents have another line of defense once video games are brought into their homes. Major game console developers (Microsoft,229 Sony,230 and Nintendo231) all recognize the digitally embedded ratings and offer blocking tools in their new gaming systems.232 For example, the Microsoft Xbox 360 and the Nintendo Wii consoles allow parents to enter the ESRB rating level that they believe is acceptable for their children. Once they do so, no game rated above that level can be played on the console.

229

www.xbox.com/en-US/support/familysettings/xbox360/familysettings-intro.htm

230 Instructions for how to do so on the PlayStation3 can be found under the “Parental Controls” tab at: www.us.playstation.com/SCEARegionalOnlineManual/frame_hardware.html

231 www.nintendo.com/consumer/systems/wii/en_na/settingsParentalControls.jsp

232 See Mike Musgrove, A Computer Game’s Quiet Little Extra: Parental Control Software, Washington Post, Dec. 23, 2006, at D1, www.washingtonpost.com/wp-dyn/content/article/2006/12/22/AR2006122201278.html

http://www.xbox.com/en-US/support/familysettings/xbox360/familysettings-intro.htm

http://www.us.playstation.com/SCEARegionalOnlineManual/frame_hardware.html

http://www.nintendo.com/consumer/systems/wii/en_na/settingsParentalControls.jsp





Exhibit 36: Microsoft Xbox Parental Control Set-Up Menus

All ESRB-rated games contain embedded metadata “flags,” or a string of code in the software, that allow the consoles to automatically recognize the game’s rating. (Personal computers using the new Microsoft Windows Vista operating platform have the same screening capabilities as these stand-alone gaming consoles.)233

233

This system works cross-platform because the game industry has reached a consensus on how to embed ratings information in a standard way. Film, music, and television industries are considering similar methods for their commercial products.



Thus, parents could set the rating threshold on their child’s video game console or personal computer to T for Teen and then no games rated Mature (M) or Adults Only (AO) could be played on the console unless the parent first enters a password. (These controls can also be used to block movie playback according to the MPAA ratings.) Sony’s PlayStation 3 console and PlayStation Portable (PSP) handheld gaming system work a little differently. Both Sony gaming products let parents use a 1-11 scale to determine the level of game and DVD content they will allow their kids to play. (Roughly speaking, “2” on the Sony scale = “EC” while “10” = “AO”).234 In November 2007, Microsoft announced that it was also offering Xbox 360 owners the ability to employ a new “Family Timer” feature.235 Using the Family Timer, parents can limit how and when children play games on the console. This is similar to the time management tools Microsoft offers in its new Vista operating system for PCs (discussed below). The Family Timer upgrade was made available to consumers via a downloadable update feature available on any console connected to the Internet. 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.236 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.237 And in early 2009, Microsoft launched a new portal, GetGameSmart.com, which aggregates all these tools and efforts.238

234

For the entire equivalency scale, see www.esrb.org/about/parentalcontrol-ps3psp.jsp

235 Microsoft Corp., Microsoft, PTA and Super Bowl Champion Jerry Rice Announce New Tools to Help Parents Manage Kids’ Interactive Media Use, Press Release, Nov. 7, 2007, www.microsoft.com/presspass/press/2007/nov07/11-07FamilyTimerPR.mspx

236 www.xbox.com/en-US/support/familysettings

237 “P.A.C.T.” stands for “Parental involvement, Access, Content and Time. See http://assets.xbox.com/en-US/support/familysettings/MS_Pact_021308a.pdf

238 www.getgamesmart.com

http://www.esrb.org/about/parentalcontrol-ps3psp.jsp

http://www.microsoft.com/presspass/press/2007/nov07/11-07FamilyTimerPR.mspx

http://www.xbox.com/en-US/support/familysettings

http://assets.xbox.com/en-US/support/familysettings/MS_Pact_021308a.pdf

http://assets.xbox.com/en-US/support/familysettings/MS_Pact_021308a.pdf

http://www.getgamesmart.com/



Exhibit 37: GetGameSmart.com

The ESA survey cited above has found that 75 percent of parents surveyed found these video game console parental control tools to be useful.239 A Word about Online, Multiplayer Gaming Online gaming and what are referred to as “massively multiplayer online games” (“MMOGs”) are the hottest thing in the gaming world today. A user must have an Internet connection—usually a high-speed broadband connection—to interact in these online environments. Once they are connected, players can interact with countless other gamers, some of whom will be friends, but many will be strangers. That fact will obviously raise some concern for some parents. While the ESRB can rate game content for traditional, individual game play, it cannot rate or perfectly describe how the gaming experience might change while online since game play is spontaneously shaped by multiple participants. This is why many online games sold today include an additional warning to parents that reads: “Online Interactions Not Rated By the ESRB.” This makes it clear that user-generated content or online social interaction cannot be rated by the ESRB.

239

Entertainment Software Association, Essential Facts about the Computer and Video Game Industry: 2008 Sales, Demographics and Usage Data, 2008, at 8, www.theesa.com/facts/pdfs/ESA_EF_2008.pdf




Parents have a couple of options at their disposal to deal with online gaming concerns. First, they can disable online gaming capabilities altogether by either (a) not connecting the gaming console to an Internet connection or (b) using the controls embedded in new gaming consoles to disable or limit online connections. This approach is particularly sensible if parents allow their children to start gaming at a young age.

Exhibit 38: Microsoft Xbox Chat Blocking Controls

Second, parents can allow limited online gaming, but demand that their children play with only known, trusted acquaintances. This process can be automated in the new Microsoft Xbox 360,240 Sony PS3,241 and Nintendo Wii242 gaming consoles by restricting access to the child’s friends list or gamer profile. In other words, parents can build the equivalent of a “buddies list” for their kids and allow them to play with only those other children. Alternatively, the systems enable parents to allow online gaming, but restrict the chat capabilities so others cannot talk to their children. Incidentally, parents can also view a list of whom their children have been playing by examining the list of other gamers with whom they have interacted during online sessions. And parents can also limit how much children can spend in online “marketplaces” and set the limit to zero if they do not want their kids buying any online content. Integrated Internet browser capabilities can be turned off entirely.

240

Instructions for how to do so on the Xbox 360 can be found at: www.xbox.com/en-US/support/familysettings/console/xbox360/consolefamilysettings.htm

241 Instructions for how to do so on the PlayStation3 can be found under “Creating an Account” and “Going Through the Registration Process” at: www.us.playstation.com/content/sites/176/info/frame_network.html

242 www.nintendo.com/consumer/systems/wii/en_na/settingsParentalControls.jsp

http://www.xbox.com/en-US/support/familysettings/console/xbox360/consolefamilysettings.htm

http://www.xbox.com/en-US/support/familysettings/console/xbox360/consolefamilysettings.htm

http://www.us.playstation.com/content/sites/176/info/frame_network.html

http://www.nintendo.com/consumer/systems/wii/en_na/settingsParentalControls.jsp



Third, as their children get older and are allowed more interactive gaming, parents should ask them to report any suspicious communications from strangers in these games. Parents can report such behavior to online gaming operators who will take appropriate steps if undesirable activities are detected. Independent Video Game Rating Organizations As was the case with TV, movie, and music ratings, if parents wish to verify ESRB game ratings independently, or just want more information about what their kids might see or hear in the games they buy them, several services are at their disposal. Websites such as Common Sense Media,243 What They Play,244 AOL’s PlaySavvy 245 Game Pro Family246 and Children’s Technology Review247 provide detailed video game reviews and information about the specific types of content that kids will see or hear in a game.248 And user-generated reviews on sites like Amazon.com249 and Metacritic.com250 feature excellent product summaries, often written by other parents, which can help parents decide if games are right for their kids. Of course, none of these sites or schemes is nearly as comprehensive as the ESRB system, which covers all games.251

243

www.commonsensemedia.org/game-reviews. In May 2007, electronic retailing giant Best Buy announced that, in addition to ESRB ratings, it would begin using Common Sense Media’s ratings in its stores and online to provide parents with more information about the games their kids desire. See Carissa Wyant, “Best Buy Launches Video Game Rating System for Parents,” Minneapolis / St. Paul Business Journal, May 16, 2007, http://twincities.bizjournals.com/twincities/stories/2007/05/14/daily19.html

244 www.whattheyplay.com

245 www.playsavvy.com

246 www.gameprofamily.com

247 www.childrenssoftware.com

248 The ESRB keeps a running list of resources for parents at: www.esrb.org/about/resources.jsp

249 www.amazon.com


251 As the Entertainment Software Association noted in an April 2009 filing to the FCC:

An effective rating system is much more than alphabet code, rating symbols, descriptors, and related hardware components and parental control mechanisms…. *T+he ESRB’s rating system is effective and trusted because it is comprehensive, aggressively enforced, and widely supported by video game publishers, retailers, and—most important—parents. Thus, unlike [] third-party initiatives [], the ESRB rates virtually every video game sold at retail in the United States prior to a game’s release so that the rating will appear on the game’s packaging when it is shipped to retailers and in all media advertisements for the product. The ESRB evaluates the video game content in a rigorous and consistent manner and in accordance with comprehensive guidelines, resulting in ratings that consumers understand and with which they generally concur. In addition, the ESRB enforces its system vigorously through a system of fines and other sanctions. These measures ensure that parents and consumers have the information they need, in a format that is accessible and easy to understand, so that they can make

http://www.commonsensemedia.org/game-reviews

http://twincities.bizjournals.com/twincities/stories/2007/05/14/daily19.html

http://www.whattheyplay.com/

http://www.playsavvy.com/

http://www.gameprofamily.com/

http://www.childrenssoftware.com/

http://www.esrb.org/about/resources.jsp





There are some good recent books focusing on video games and children that provide helpful advice to parents. They include: Drs. Lawrence Kutner and Cheryl K. Olson’s Grand Theft Childhood: The Surprising Truth about Violent Video Games and What Parents Can Do;252 Dr. Kourosh Dini’s Video Game Play & Addiction: A Guide for Parents;253 and Sharon Miller Cindrich’s e-Parenting: Keeping Up with Your Tech-Savvy Kids.254

Exhibit 39: Books Featuring Advice about Video Games and Kids

an informed decision about the particular video game their child wants to play. In contrast, third parties purporting to provide information to parents assess, at best, a small percentage of the games that are published each year, use a variety of untested criteria that are neither transparent nor widely explained to consumers, have no access to a game’s packaging or advertising, and cannot quickly and effectively enforce against misuse of the information they seek to provide.

Reply Comments of the Entertainment Software Association, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, May 18, 2009, at 6-7, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520216861

252 Lawrence Kutner and Cheryl K. Olson, Grand Theft Childhood: The Surprising Truth about Violent Video Games and What Parents Can Do (New York: Simon & Schuster, 2008).

253 Kourosh Dini, Video Game Play & Addiction: A Guide for Parents (Bloomington, IN: iUniverse, Inc., 2008), http://kouroshdini.com/4419js/0595454704b.pdf

254 Sharon Miller Cindrich, e-Parenting: Keeping Up with Your Tech-Savvy Kids (New York: Random House Reference, 2007), www.pluggedinparent.com


http://kouroshdini.com/4419js/0595454704b.pdf




Coin-Operated (Arcade) Game Ratings Finally, there is a separate rating system for coin-operated arcade games. The

“Coin-Operated Video Game Parental Advisory System” is administered by the American Amusement Machine Association (AAMA), the Amusement and Music Operators Association (AMOA), and the International Association for the Leisure & Entertainment Industry (IALEI).255 It uses a color-coded, “traffic light” approach so that parents can review the green, yellow, or red sticker labels on arcade games and decide whether to let their children play.

Exhibit 40: Coin-Operated Games Rating System

255

www.coin-op.org/Parental%20Advisory%20System.htm

http://www.coin-op.org/Parental%20Advisory%20System.htm



Video Game Tips for Parents: When purchasing video games for your children, carefully review the ratings and

content descriptors on the back of each box to determine if the game is acceptable for your family.

If games are purchased online, first consult the ESRB website (www.esrb.org) to learn more about those games.

Consult the independent ratings websites listed earlier to learn what other parents think about video games that you are considering buying for your kids.

As soon as a new gaming console is brought into the home and unpacked, program the parental controls to designate the level of game (and movie) ratings that is acceptable within your household.

Instead of placing gaming consoles in bedrooms and allowing your children to play unsupervised, consider placing the consoles in a common area of the home so that you can keep can keep an eye (and ear) on the content of the games that your kids are playing.

When you see or hear objectionable content in certain games, talk to your kids about it.

http://www.esrb.org/



G. Wireless and Mobile Media

Mobile phones and other handheld mobile media devices have taken the world by storm. According to CTIA, the wireless industry’s trade association, there were over 270 million estimated cellular telephone subscribers in America at the end of 2008.256 That is an astonishing number considering that few of us carried mobile devices in our pockets just 10 years ago. Today, however, even young children have their own cell phones.

Importantly, mobile phones are

becoming much more than just communication devices; they are now full-fledged multimedia platforms capable of delivering video, data, games, instant messages, and more.257 As John Markoff of the New York Times says, “The cellphone is the world’s most ubiquitous computer. The four billion cellphones in use around the globe carry personal information, provide access to the Web and are being used more and more to navigate the real world.”258 Thus, subscribers can use these devices to access news, information and entertainment from almost anywhere.

Of course, this otherwise wonderful development has some downsides for

parents who are concerned about the types of inappropriate content their children might be able to access on mobile devices.259 And, according to the Yankee Group, 72 percent of teens between ages 13 and 17 already have a mobile phone, and that number continues to grow.260 Consequently, kids need to be taught proper mobile phone etiquette,261 and parents also need to consider strategies and tools that can help

256

www.ctia.org/media/industry_info/index.cfm/AID/10323

257 “*T+he devices we call ‘mobile phones’ are, in fact, PCs. They’re just another computer form factor. Some PCs are desktops. Some are laptops. And some are handhelds.” Sascha Segan, Think of Cell Phones Like Miniature PCs, PC Magazine, June 26, 2007, at 80, www.pcmag.com/article2/0,1895,2139510,00.asp .

258 John Markoff, The Cellphone, Navigating Our Lives, New York Times, Feb. 16, 2008, www.nytimes.com/2009/02/17/science/17map.html?_r=1

259 As Wall Street Journal reporter Dionne Searcey notes, “Parents have been clamoring for more controls, especially as phones have morphed into minicomputers… *with+ capabilities that make some parents nervous.” Dionne Searcey, Keeping Junior on a Wireless Leash, Wall Street Journal, Sept. 4, 2007, at D1.

260 Joseph De Avila, Quelling the Danger Lurking In Junior’s Backpack, Wall Street Journal, April, 23, 2008, at D1, http://online.wsj.com/public/article/SB120891052219636621-XIICJVxoIbk9xAXrUAzV7IZXnb8_20080522.html?mod=tff_main_tff_top

261 The Harvard University Center on Media and Child Health has some useful guidelines here: http://cmch.tv/mentors/hotTopic.asp?id=70. Also, the National Institute on Media and the Family produces an excellent guide for parents entitled “Cell Phones and Your Kids” that offers friendly

Mobile phones are now full-fledged multimedia platforms capable of

delivering video, data, games, instant messages, and more.

Cell phones are becoming much more than just communication

devices; they are now full-fledged multimedia platforms capable of










delivering video, data, games,

http://www.ctia.org/media/industry_info/index.cfm/AID/10323

http://www.pcmag.com/article2/0,1895,2139510,00.asp

http://www.nytimes.com/2009/02/17/science/17map.html?_r=1

http://online.wsj.com/public/article/SB120891052219636621-XIICJVxoIbk9xAXrUAzV7IZXnb8_20080522.html?mod=tff_main_tff_top


http://cmch.tv/mentors/hotTopic.asp?id=70



guide appropriate use. “Luckily for parents, new software is allowing parental control like never before,” notes Lee Ferran of ABC News.262

Exhibit 41: Snapshot of Teen Use of Mobile Media in 2009

Wireless Carrier Content Guidelines For example, the wireless industry is responding to these concerns in a preemptive fashion. 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.”263 Under the guidelines, wireless carriers pledged not to offer any adult-oriented content until they have created controls to allow parents to

pointers for parents looking to teach their children proper cell phone etiquette. See A MediaWise Parent Guide—Cell Phones and Your Kids, (Minneapolis, MN: National Institute on Media and the Family, 2006), www.mediafamily.org/network_pdf/cellphon_guide.pdf

262 Lee Ferran, Parental Controls for Cell Phones, ABC News.com, Dec. 26, 2008, www.abcnews.go.com/GMA/Parenting/story?id=6529871&page=1

263 CTIA, Wireless Carriers Announce ‘Wireless Content Guidelines,’ Press Release, Nov. 8, 2005, http://www.ctia.org/media/press/body.cfm/prid/1565


http://www.abcnews.go.com/GMA/Parenting/story?id=6529871&page=1

http://www.ctia.org/media/press/body.cfm/prid/1565



restrict access.264 According to an April 2009 filing by CTIA to the FCC, the guidelines work as follows:265

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.

CTIA defines “Carrier Content” to include video and other images, music and other audio, video games, adult-oriented text-based entertainment services, and lotteries and gambling, but “Carrier Content” does not include any end-user generated content (on message boards, chat rooms, or blogs, for example) or any content accessed via the public Internet or other public data networks. Within these categories, “Restricted Carrier Content” consists of material that is generally recognized as appropriate only for adults 18 years of age or older, such as material that may contain strong violence or may be sexually explicit; or material that is legally restricted to persons at least 18 years of age, such as lotteries and gambling. *…+ CTIA suggests to participating members and content providers that other types of content be placed in this restricted category as well, including material that may be deemed objectionable or harmful to minors based on its depiction of illegal drug use or its use of intense profanity or hate speech.266

264

See Amol Sharma, Wireless Carriers Set Strict Decency Standards for Content,” Wall Street Journal, April 27, 2006, at B1.

265 The complete guidelines can be found at www.ctia.org/consumer_info/service/index.cfm/AID/10394 and the classification criteria for “Restricted Carrier Content” can be found at www.ctia.org/content/index.cfm/AID/10395

266 Comments of CTIA-The Wireless Association, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 4-5, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213683

http://www.ctia.org/consumer_info/service/index.cfm/AID/10394

http://www.ctia.org/content/index.cfm/AID/10395




Many major carriers have already announced their plans or policies regarding such content or developed family tools to help parents protect their children.267 Market leaders AT&T (“SmartLimits” and “Media Net”),268 Verizon Wireless (“Chaperone Service”),269 T-Mobile (“Web Guard”),270 and Sprint271 already have excellent parental control services and websites up and running.

Exhibit 42: Verizon Wireless Content Rating System

In late 2007, Verizon Wireless also rolled out a new “Content Filtering Service”

for audio and video content accessible through its mobile devices (both phones and “air

267

See Joseph De Avila, Quelling the Danger Lurking In Junior’s Backpack, Wall Street Journal, April, 23, 2008, at D1, http://online.wsj.com/public/article/SB120891052219636621-XIICJVxoIbk9xAXrUAzV7IZXnb8_20080522.html?mod=tff_main_tff_top; Tom Spring, Web-Enabled Handsets Deliver a Squeaky-Clean Internet, PC World, June 20, 2006, http://pcworld.about.com/news/Jun202006id126147.htm

268 www.wireless.att.com/learn/articles-resources/parental-controls/index.jsp

269 www.verizonwireless.com/b2c/splash/chaperone/splash.jsp

270 https://support.t-mobile.com/knowbase/root/public/tm23350.htm; Also see Reply Comments of T-Mobile USA, Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, May 18, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520216886

271 www1.sprintpcs.com/explore/ueContent.jsp?scTopic=parentalControl and www.sprint.com/4netsafety/



http://pcworld.about.com/news/Jun202006id126147.htm

http://www.wireless.att.com/learn/articles-resources/parental-controls/index.jsp

http://www.verizonwireless.com/b2c/splash/chaperone/splash.jsp

https://support.t-mobile.com/knowbase/root/public/tm23350.htm


http://www1.sprintpcs.com/explore/ueContent.jsp?scTopic=parentalControl

http://www.sprint.com/4netsafety/



cards” that plug into laptops to get mobile Internet access). Content is classified into four different levels: Children 7 Plus, Teens 13 Plus, Young Adults 17 Plus, and Filter Off.272 Customers can establish the preferred rating settings for their families on their online account webpage, or by calling a customer service representative.273

Beyond restricting access to inappropriate content, these carriers help parents

set customize limits for each child according to age. Although details vary by provider, parents can also generally manage how and when kids use their phones, including limitations on the overall minutes used for messaging and downloads. The plans can even restrict who the child can contact with their phones.274 For example, using AT&T’s new “Smart Limits for Wireless,” AT&T customers can determine specifically how and when their kids use their phones. Parents can limit the number of text and instant messages, the dollar amount of downloadable purchases (ex: ringtones, games), when the phone can be used for calling or texting; and access to inappropriate content.275 Many carriers now also offer global positioning system (GPS) tracking technology in their phones, which allows parents to locate their children and monitor their whereabouts.276

Independent services are also being developed that supplement these industry

efforts. For example, Radar, which bills itself as “Your Kids’ Mobile Watchdog,” is a new service that “monitors and tracks your child's cell phone contacts and immediately alerts you if he or she receives unwanted or suspicious email, Instant Messages, text messages or phone calls.”277 If the child is contacted by an unapproved person, parents are immediately sent an alert on their phones and via e-mail. And parents are alerted when children add new friends to their device.278 The Radar service costs $10 per month for one user or $15 for an entire family.

CTIA has also developed an awareness campaign called “Get Wise about

Wireless,” which “helps educate students about cell phone use and the responsible behaviors associated with using cell phones.”279 The program includes a variety of materials such as a teacher’s guide and a family take-home pamphlet about safe and

272

www.verizonwireless.com/parentalcontrols

273 See https://wbillpay.verizonwireless.com/vzw/nos/parental-control_FAQ.jsp and www.verizonwireless.com/usagecontrols

274 Dionne Searcey, Keeping Junior on a Wireless Leash, Wall Street Journal, Sept. 4, 2007, at D1.

275 www.wireless.att.com/learn/articles-resources/parental-controls/smart-limits.jsp

276 Larry Magid, Global Positioning by Cellphone, New York Times, July 19, 2007, at C7.

277 www.mymobilewatchdog.com

278 “Radar performed very well and was user-friendly enough for tech-sky parents,” argued Katherine Boehret in a Wall Street Journal review of the software. Katherine Boehret, Keeping Tabs on Kids’ Phones, Wall Street Journal, July 25, 2007. P. D4.

279 www.wirelessfoundation.org/GetWise/index.cfm

http://www.verizonwireless.com/parentalcontrols

https://wbillpay.verizonwireless.com/vzw/nos/parental-control_FAQ.jsp

http://www.wireless.att.com/learn/articles-resources/parental-controls/smart-limits.jsp

http://www.mymobilewatchdog.com/

http://www.wirelessfoundation.org/GetWise/index.cfm



courteous cell phone use.280 As part of this effort, CTIA also runs a student essay contest about sensible wireless use.281

Devices Geared toward Younger Users

In addition to the parental controls and screening services offered by carriers, wireless handsets geared specifically for younger children are now on the market.282 These devices give parents considerable control over what their kids can access on their phones, as well as several other useful monitoring features.283 For example:

Firefly Mobile sells a tiny, voice-only phone for kids with just five buttons on it.284 Two of the buttons have small icons symbolizing Mom and Dad, allowing the child to call them directly via pre-programmed numbers. It comes in several colors and contains a variety of accessories geared toward kids.

Another such phone called the TicTalk285 is marketed by wireless company Enfora and the educational toy maker LeapFrog Enterprises. The TicTalk lets parents enter phone numbers that can be called anytime and also restrict numbers that can be called only during certain times of the day. Parents can also determine what times during the day the phone can even ring.286

The Wherify “Wherifone” offers robust GPS location tracking via the Internet. Phone numbers can be programmed by parents and the phone contains an SOS panic button for emergencies. The Wherifone also restricts the downloading of games, as well as text messages.287

280

See www.wirelessfoundation.org/GetWise/teachers_guide2007.pdf and www.wirelessfoundation.org/GetWise/family_takehome2007.pdf

281 www.wirelessfoundation.org/GetWise/contest.cfm

282 Many of these phones are discussed and sold at www.kidswireless.com

283 For more information, see Dan Costa, Yes, I Spy on My Kid, PC Magazine, July 17, 2007, at 58, www.pcmag.com/article2/0,1895,2145504,00.asp; Yuki Noguchi, Connecting with Kids, Wirelessly, Washington Post, July 7, 2005, at A1; Fern Shen, Only a Few Can Hear You Now: Limited-Use Phones Geared to Kids, Washington Post, July 18, 2005, at C14; David Pogue, Cellphones That Track Kids, New York Times, Dec. 21, 2006, www.nytimes.com/2006/12/21/technology/21pogue.html?ex=1167973200&en=898b8ec6c58ef344&ei=5070;

284 www.fireflymobile.com

285 www.mytictalk.com

286 Kim-Mai Cutler, A Phone of Their Own, Wall Street Journal, Aug. 4, 2005, at D1.

287 www.wherify.com/wherifone

http://www.wirelessfoundation.org/GetWise/teachers_guide2007.pdf

http://www.wirelessfoundation.org/GetWise/family_takehome2007.pdf

http://www.wirelessfoundation.org/GetWise/contest.cfm

http://www.kidswireless.com/


http://www.nytimes.com/2006/12/21/technology/21pogue.html?ex=1167973200&en=898b8ec6c58ef344&ei=5070

http://www.nytimes.com/2006/12/21/technology/21pogue.html?ex=1167973200&en=898b8ec6c58ef344&ei=5070

http://www.fireflymobile.com/

http://www.mytictalk.com/

http://www.wherify.com/wherifone/



Guardian Angel Technology also produces a GPS phone for children that lets parents monitor their kids via the Internet.288 Guardian phones let parents keep a record of their child’s movements for a 30-day period. And when the child is traveling in a car, the phone can monitor how fast the car is going and the direction in which it is heading.

Verizon Wireless’s “Migo” is similar to the Firefly Mobile phone in that has a limited number of buttons for parents to program with approved and emergency-related numbers.289 Kids can decorate the colorful phone with stickers and other accessories. Using Verizon’s Chaperone service, parents can enable GPS tracking of their kids.290 Verizon also offers a feature called Child Zone which notifies parents via a text message if their child strays beyond pre-approved boundaries.291

Independent Mobile Phone Filters While most parents will likely use the parental control technologies embedded in mobile devices or provided by the network provider, independent mobile phone filtering and monitoring technologies are now coming to market.292 These filters typically replace the phone’s installed web browser with an alternative browser that can’t be disabled. It then allows parents to configure their child’s mobile device in much the same way the parents would configure filtering software for a child’s personal computer. For example, Safe Eyes Mobile, which retails for $19.95, lets parents choose from 35 categories to determine what sort of content will be allowed or blocked.293 Settings can be changed remotely by parents through a web-based interface. iWonderSurf works in a similar fashion and costs $14.99.294 Mobicip, another provider of mobile phone filtering and monitoring, costs $9.99 for the premium version of its software.295 Unfortunately, however, these three filtering tools currently only work with Apple’s iPhone, but that will likely change in coming months. However, SMobile’s

288

www.guardianangeltech.com

289 http://estore.vzwshop.com/search/devices/lg_migo.html

290 www.verizonwireless.com/chaperone

291 www.kidswireless.com/articles/verizon-wireless-chaperone

292 Jenna Wortham, Helping Parents Snoop on Kids’ iPhone Habits, New York Times Bits, March 28, 2009, http://bits.blogs.nytimes.com/2009/03/28/helping-parents-snoop-on-kids-iphone-habits

293 www.internetsafety.com/safe-eyes-mobile-iphone.php. Also see Michelle Maltais, Safe Eyes Mobile Puts Parental Controls on iPhone Web Surfing, Los Angeles Times.com, March 3, 2009, http://latimesblogs.latimes.com/technology/2009/03/appiphilia-safe.html

294 www.iwondersurf.com

295 www.mobicip.com

http://www.guardianangeltech.com/

http://estore.vzwshop.com/search/devices/lg_migo.html

http://www.verizonwireless.com/chaperone

http://www.kidswireless.com/articles/verizon-wireless-chaperone

http://bits.blogs.nytimes.com/2009/03/28/helping-parents-snoop-on-kids-iphone-habits/

http://www.internetsafety.com/safe-eyes-mobile-iphone.php

http://latimesblogs.latimes.com/technology/2009/03/appiphilia-safe.html

http://www.iwondersurf.com/

http://www.mobicip.com/



Security Shield Parental Edition works on Windows Mobile, Symbian, and Blackberry systems and allows parents to monitor all text and email message content, receive alerts based on message content or sender, view phone call log information, view address book contacts, and to lock, wipe, or backup data on the device.296 Parents can configure all controls from a single user-interface on their computers. The service costs $29.99 per year. Likewise, Kaspersky Mobile Security, which retails for $29.95, works on Symbian and Windows Mobile devices.297 A Word about Wireless Location-Based Services and Social Mapping Many of the phones and services described above include location-based technologies that parents can use to monitor the movement of their children.298 Those same geo-location services can be used for other purposes. Geo-location technologies are now being married to social networking utilities to create an entirely new service and industry: social mapping.299 Social mapping allows subscribers to find their friends on a digital map and then instantly network with them. Companies such as Loopt,300 Helio301 and Google302 have already rolled out commercial social mapping services. Loopt has also partnered with major carriers Verizon and Sprint to roll out its service nationwide.303 It is also now available on BlackBerry devices and Apple’s iPhone. It is likely many other rivals will join them in coming months and years.304 This new service presents exciting opportunities for users to network with friends and family, but it might also raise some privacy

296

http://secure.smobilesystems.com/main/home/index.php or http://secure.smobilesystems.com/main/docs/cons/2009PC_guide.pdf

297 www.marketwire.com/press-release/Kaspersky-Lab-Americas-998906.html

298 According to a recent Jupiter Research survey, 4 out of 10 parents with children under age 13 are willing to pay to track their child's location. See eMarketer, Parents Wants Mobile Phone Kid Tracking, Aug. 10, 2007, www.emarketer.com/Article.aspx?id=1005248

299 “Social networking is just the beginning. Eventually all forms of communication will converge on one pocket-size gizmo that lets you access virtually any information anywhere, at any time. Other people can likewise use their gizmo to find you—as will anyone interested in selling you location-based services. Or you can simply turn off and eat a sub—provided you can resist the urge to broadcast that info to the world.” Dan Tynan, Is That a Social Network in Your Pocket? PC World, Aug. 2007, at 49. Also see Kate Greene, The Future of Mobile Social Networking, Technology Review, June 2, 2008, www.technologyreview.com/Infotech/20844

300 https://loopt.com

301 www.helio.com

302 www.google.com/latitude

303 Amol Sharma and Jessica Vascellaro, Phones Will Soon Tell Where You Are, Wall Street Journal, March 28, 2008, at A1, http://online.wsj.com/article/SB120666235472370235.html

304 Research firm eMarketer has estimated there were over 63 million location-based service users worldwide in 2008, and that there will be 486 million by 2012. eMarketer, Mobile Location-Based Services on the Move, Oct. 6, 2008, www.emarketer.com/Article.aspx?id=1006609

http://secure.smobilesystems.com/main/home/index.php

http://secure.smobilesystems.com/main/docs/cons/2009PC_guide.pdf

http://www.marketwire.com/press-release/Kaspersky-Lab-Americas-998906.html


http://www.technologyreview.com/Infotech/20844

https://loopt.com/

http://www.helio.com/

http://www.google.com/latitude

http://online.wsj.com/article/SB120666235472370235.html




concerns.305 For example, are random strangers or bad guys monitoring my daughter’s whereabouts? Or, is her former boyfriend using such a service to track and stalk her?

Industry is responding to these concerns preemptively. As part of their effort to create and refine their “Wireless Content Guidelines,” the CTIA has worked with some of these companies to create privacy and safety guidelines for this emerging technology and industry sector.306 Loopt, Helio, and Google have already taken steps to protect user privacy by establishing a variety of safeguards to ensure that information is not shared inappropriately.307 Also, tools like Radar and IMSafer can help parents monitor their children’s activities. These tools and industry best practices will be refined and extended, but they are no substitute for parents talking to their kids about proper use of this new technology.308 Children need to be educated about how these technologies work and taught to use the tools built into the services to safeguard their personal information. If parents decide to give phones to their pre-teen children, they need to configure those phones for them to ensure that these services are disabled or only accessible by trusted family members and acquaintances. What to Do about “Sexting” “Sexting” refers to the texting of sexual images via mobile devices. Some teens engage in this dangerous practice and later find out the horrifying consequences once images are distributed more broadly.309 This includes trouble with the law.310 Even when the teen sends the image to a “trusted” boyfriend or girlfriend, all it takes is one

305

Laura M. Holson, Privacy Lost: These Phones Can Find You, New York Times, Oct. 23, 2007, www.nytimes.com/2007/10/23/technology/23mobile.html?_r=2&adxnnl=1&oref=slogin&adxnnlx=1193960357-7mFoDVQXullPWYqVnT/CYA

306 See CTIA Best Practices and Guidelines for Location-Based Services, www.ctia.org/business_resources/wic/index.cfm/AID/11300

307 For Loopt’s safety and privacy tips see: https://loopt.com/loopt/beSafe.aspx

308 The National Institute on Media and the Family produces an excellent guide for parents entitled “Cell Phones and Your Kids” that offers friendly pointers for parents looking to teach their children proper cell phone etiquette. See A MediaWise Parent Guide—Cell Phones and Your Kids, (Minneapolis, MN: National Institute on Media and the Family, 2006), www.mediafamily.org/network_pdf/cellphon_guide.pdf Also see Jan Faull, Teaching Kids Cell Phone Etiquette,” MSN Lifestyle, Aug. 2006, http://lifestyle.msn.com/FamilyandParenting/RaisingKids/ArticleBHG.aspx?cp-documentid=1314613; Cell Phone Safety Tips, ConnectSafely.org, www.connectsafely.org/safety-tips/safety-tips/cell-phone-safety-tips.html

309 Stephen Balkam, Sexting and the Law of Unintended Consequences, Huffington Post, March 24, 2009, www.huffingtonpost.com/stephen-balkam/sexting-and-the-law-of-un_b_178223.html

310 Donna St. George, Sending of Explicit Photos Can Land Teens in Legal Fix, Washington Post, May 7, 2009, at A1, www.washingtonpost.com/wp-dyn/content/article/2009/05/06/AR2009050604088.html

http://www.nytimes.com/2007/10/23/technology/23mobile.html?_r=2&adxnnl=1&oref=slogin&adxnnlx=1193960357-7mFoDVQXullPWYqVnT/CYA

http://www.nytimes.com/2007/10/23/technology/23mobile.html?_r=2&adxnnl=1&oref=slogin&adxnnlx=1193960357-7mFoDVQXullPWYqVnT/CYA

http://www.ctia.org/business_resources/wic/index.cfm/AID/11300

https://loopt.com/loopt/beSafe.aspx


http://lifestyle.msn.com/FamilyandParenting/RaisingKids/ArticleBHG.aspx?cp-documentid=1314613

http://www.connectsafely.org/safety-tips/safety-tips/cell-phone-safety-tips.html

http://www.connectsafely.org/safety-tips/safety-tips/cell-phone-safety-tips.html

http://www.huffingtonpost.com/stephen-balkam/sexting-and-the-law-of-un_b_178223.html




accidental or intentional forwarding of that image for things to spiral out of control. And relationships can turn sour, of course. Unfortunately, neither law nor parental controls are likely to be of much help here. Legal responses are difficult to craft,311 although some states are trying to do so by creating a new misdemeanor for a minor to possess or store such images.312 And the only technological solution to this problem is for parents to simply not purchase a phone for their teen that has a camera. Of course, that’s increasingly impractical since most phones include cameras and the majority of the time they are put to perfectly safe, socially-beneficially use. Again, this is where teaching proper digital etiquette becomes essential, as was discussed in Section II.C. Child safety experts Anne Collier and Larry Magid, co-directors of ConnectSafely.org, have drawn up some helpful “Tips to Prevent Sexting.”313

Wireless / Mobile Media Tips for Parents: Teach your children basic etiquette as they start to use more interactive mobile

media devices and services. (See Section II.C for details).

For a child’s first phone, consider a model that restricts calling options to parents, schools, or emergency contacts. Also consider a model with embedded GPS tracking capabilities to monitor your child’s whereabouts.

Consider limitations of online and interactive functions until your child is older. Once he or she is given online access through mobile devices, use parental controls that are embedded within the phone to screen objectionable content or limit access to certain sites.

Review your children’s phone records to determine if they are communicating with strangers or accessing any objectionable sites or material.

Consider calling plans that cap usage time (for both calls and online access) to ensure children do not abuse the privilege. Develop a “calling allowance” to place boundaries on overall monthly usage.

311

Julie Hilden, How Should Teens' ‘Sexting’ – the Sending of Revealing Photos – Be Regulated?” FindLaw, April 28, 2009, http://writ.lp.findlaw.com/hilden/20090428.html

312 Patrick Preston, Senator Introduces ‘Sexting’ Bill, Columbus NBC4i, April 29, 2009, www.nbc4i.com/cmh/news/local/local_govtpolitics/article/senator_introduces_sexting_bill/15279/

313 Tips to Prevent Sexting, ConnectSafely.org, March 26, 2009, www.connectsafely.org/index.php?option=com_content&task=view&id=1581&Itemid=118/

http://writ.lp.findlaw.com/hilden/20090428.html

http://www.nbc4i.com/cmh/news/local/local_govtpolitics/article/senator_introduces_sexting_bill/15279/

http://www.connectsafely.org/index.php?option=com_content&task=view&id=1581&Itemid=118/



H. Internet, Computing, and Social Networking

The Internet is massive, and the sheer scope and volume of online activities make parental control efforts quite challenging. That’s especially the case because, as the Pew Internet & American Life Project notes, “American teens are more wired now than ever before.”314 According to a Pew survey taken in late 2006, 93 percent of all Americans between 12 and 17 years old use the Internet. In 2004, by contrast, 87 percent were Internet users, and in 2000, 73 percent of teens were online.315 Luckily, many companies and private organizations have already established tools and methods to deal with objectionable online content. Parents need to adopt a “layered” approach to online child protection that involves many of the tools and strategies outlined in this section. An excellent illustration of how this works is found in Gregory S. Smith’s How to Protect Your Children on the Internet: A Road Map for Parents and Teachers.316 The adjoining exhibit depicts the 8-part layered model Smith outlines in his book to help parents and teachers keep kids safe online.

Exhibit 43: Gregory Smith’s 8-Step Plan to Protect Children from Online Risks

Of course, it goes without saying that these methods should not be considered substitutes for talking to children about what they might see or hear while online. Even though the tools and strategies that follow can help parents control the vast majority of

314

Amanda Lenhart and Mary Madden, Pew Internet & American Life Project, Teens, Privacy, and Online Social Networks, April 18, 2007, at 3, www.pewinternet.org/PPF/r/211/report_display.asp

315 Id.

316 Gregory S. Smith, How to Protect Your Children on the Internet: A Road Map for Parents and Teachers (Westport, CT: Praeger, 2007), at 72, www.gregoryssmith.com

http://www.pewinternet.org/PPF/r/211/report_display.asp

http://www.gregoryssmith.com/



objectionable content that their kids might stumble upon while online, no system is perfect. In the end, education, oversight, and ongoing communication and mentoring are vital.317 That being said, there are many tools and strategies that can be an important part of the “training wheels and speed bumps” approach discussed in Section III.B. Finding Help from Online Safety Metasites There is so much good information on the Internet about online child safety that parents would be wise to rely on some of the “metasites” that aggregate helpful tips, tools, and other information all in one place. The best of these sites include:

Center for Safe and Responsible Internet Use (www.csriu.org) was created by Nancy Willard, a leading authority on Internet safety and child development issues. Willard is also the author of Cyber-Safe Kids, Cyber-Savvy Teens: Helping Young People Learn to Use the Internet Safely and Responsibly,318 and Cyberbullying and Cyberthreats: Responding to the Challenge of Online Social Aggression, Threats, and Distress.319 The CSRIU website offers numerous papers, presentations, essays, and useful tips about how to deal with online threats or identify “at-risk” youth who may need special attention and assistance.320

Connect Safely.org (www.connectsafely.org) is a project of Tech Parenting Group, a nonprofit organization based in Palo Alto, Calif., and Salt Lake City, Utah. The project is the brainchild of Larry Magid of SafeKids.com and Anne Collier of NetFamilyNews.org, two leading online child safety experts. The site features helpful articles and videos, safety tips, interactive forums, and commentaries. The forum allows parents and teens to interact with online child safety experts. The effort is supported by a wide variety of high-technology companies.

317

Julia Angwin of the Wall Street Journal argues: “For most parents, it seems that our best bet is to treat the Internet like an unsupervised playground in a sketchy neighborhood: You shouldn't drop your kids off there and walk away. You are obligated to stick around and make sure some kid doesn't beat up your kid – even if you're just watching from a bench on the sidelines.” Julia Angwin, How to Keep Kids Safe Online, Wall Street Journal, Jan. 20, 2009, http://online.wsj.com/article/SB123238632055894993.html

318 Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), www.cskcst.com

319 Nancy E. Willard, Cyberbullying and Cyberthreats (Champaign, IL: Research Press, 2007).

320 See www.csriu.org/documents

Parents need to adopt a “layered” approach to online child

protection that involves many tools and strategies.

Parents need to adopt a “layered”

approach to online child protection that involves many

tools and strategies. Parents need to adopt a “layered”












tools and strategies.

http://www.csriu.org/

http://www.connectsafely.org/

http://online.wsj.com/article/SB123238632055894993.html


http://www.csriu.org/documents



Family Online Safety Institute (FOSI) (www.fosi.org) grew out of the Internet Content Rating Association (ICRA),321 which has been a leader in developing Internet filtering systems through comprehensive website labeling and metadata tagging. ICRA’s website labeling efforts are discussed below in the section on metadata. After reorganizing as FOSI in 2007, the organization’s mission expanded significantly. It now brings together a diverse group of stakeholders—industry, academia, government, and more—to develop online safety best practices and educational initiatives. The organization hosts several major events internationally each year and has produced an annual State of Online Safety report.322 Finally, FOSI also hosts a YouTube channel that offers free videos about online safety and major events it hosts.323

GetNetWise.org (www.getnetwise.org) is a public service website operated by the nonprofit Internet Education Foundation (IEF)324 and supported by a wide array of Internet and computer companies, as well as a host of public interest organizations and child and family activists.325 GetNetWise’s website offers a comprehensive “Online Safety Guide” and lengthy inventory of “Tools for Families” that can be custom-tailored to the needs and values of individual families.326 IEF also offers a variety of video tutorials that walk users through how various online safety tools work.327 These videos give users the chance to get a “hands-on” feel for online safety tools before they purchase or download them.

Internet Keep Safe Coalition (www.iKeepSafe.org) is a coalition of 49 state governors and first spouses, law enforcement officials, the American Medical Association, the American Academy of Pediatrics, and many other corporations328 and private associations (including many of the groups and sites listed below) that are dedicated to helping parents, educators, and caregivers by providing tools and guidelines to teach children the safe and healthy use of

321

www.fosi.org/icra

322 www.fosi.org/stateofonlinesafety [Full disclosure: I am a contributor to the State of Online Safety report and also serve as chairman of FOSI’s advisory council.+

323 www.youtube.com/user/FOSI42

324 www.neted.org

325 Major corporate supporters include Google, Microsoft, Verizon, Amazon.com, Yahoo!, AOL, AT&T, Comcast, Dell, Earthlink, Visa, Wells Fargo, and the Recording Industry Association of America. Key public interest organizations include the Center for Democracy and Technology, the American Library Association, The Children’s Partnership, People for the American Way Foundation, National Consumers League, and many others.

326 See http://kids.getnetwise.org/safetyguide and http://kids.getnetwise.org/tools

327 www.getnetwise.org/videotutorials

328 Corporate sponsors include AOL, Dell, Disney, Intel, Oracle, Siebel Systems, Symantec, and Yahoo! among others.

http://www.fosi.org/

http://www.getnetwise.org/

http://www.ikeepsafe.org/

http://www.fosi.org/icra

http://www.fosi.org/stateofonlinesafety

http://www.youtube.com/user/FOSI42

http://www.neted.org/

http://kids.getnetwise.org/safetyguIde

http://kids.getnetwise.org/tools

http://www.getnetwise.org/videotutorials



technology. iKeepSafe uses an animated mascot named Faux Paw the Techno Cat to teach children the importance of protecting personal information and avoiding inappropriate places on the Internet. The organization’s website offers a downloadable “10 Common Questions about Internet Safety” pamphlet329 and several video tutorials to help parents set up various filters or controls.330

Exhibit 44: Various Online Safety “Metasites”

GetNetWise

iKeepSafe

iSafe

NetSmartz

i-SAFE Inc. (www.iSafe.org) is a nonprofit foundation whose mission is “to educate students on how to avoid dangerous, inappropriate, or unlawful online behavior. i-SAFE accomplishes this through dynamic K-12 curriculum and community outreach programs to parents, law enforcement, and community leaders. It is the only Internet safety foundation to combine these elements,” its website claims.331 i-SAFE receives federal grants to support its efforts. The

329

www.ikeepsafe.org/iksc_partners/symantec/10_questions/Assets/TenCommonQuestions.pdf

330 www.ikeepsafe.org/PRC/videotutorials/index.php

331 www.isafe.org/channels/?ch=ai

http://www.isafe.org/

http://www.ikeepsafe.org/iksc_partners/symantec/10_questions/Assets/TenCommonQuestions.pdf

http://www.ikeepsafe.org/PRC/videotutorials/index.php

http://www.isafe.org/channels/?ch=ai



organization produces several monthly newsletters, including one for parents (“i-PARENT Times”) and one for educators (“i-EDUCATOR Times”), and it sells a wide variety of printed materials on online safety issues for classroom use.

Net Smartz Workshop (www.NetSmartz.org) is produced by the National Center for Missing and Exploited Children and the Boys and Girls Clubs of America. This comprehensive website contains web safety tips and educational materials for parents, preteens, teens, educators, and law enforcement officials. They also sponsor a site devoted to younger children (www.netsmartzkids.org) that features interactive online safety games and videos, as well as the NetSmartz Internet Safety Helpdesk (www.netsmartz411.org), which is sponsored by the Qwest Foundation.

Enough is Enough (www.enough.org) focuses on “raising public awareness about the dangers of Internet pornography and sexual predators, and advance solutions that promote equality, fairness, and respect for human dignity with shared responsibility between the public, technology, and the law.”332 Enough is Enough’s website offers a wide variety of helpful videos, PSAs, and “Rules and Tools” guidelines.333 Donna Rice Hughes, the president and chairman of EIE, authored one of the first books about online child safety in 1998, Kids Online: Protecting Your Children In Cyberspace.334

WebWiseKids (www.webwisekids.org) is a nonprofit organization “committed to teaching children and their caregivers strategies for safe Internet use, including methods of detecting and deterring online predators.”335 It specializes in interactive software and games that teach kids how to spot online threats and to deal with them promptly.

Wired Safety (www.wiredsafety.org) bills itself as “the largest online safety, education and help group in the world. We are a cyber-neighborhood watch and operate worldwide in cyberspace through our more than 9,000 volunteers worldwide.”336 The site offers educational services and online assistance and reviews family-friendly websites, filtering software, and other Internet services. Wired Safety also operates or works with several other affiliated online safety sites, such as:

332

www.enough.org/inside.php?id=E7A5VT6VM

333 www.enough.org/inside.php?id=KXQN5947I

334 Donna Rice Hughes, Kids Online: Protecting Your Children In Cyberspace (Grand Rapids, MI: Revell, 1998).

335 www.wiredwithwisdom.org/who_we_are.asp

336 www.wiredsafety.org/information/about_us.html

http://www.netsmartz.org/

http://www.netsmartzkids.org/

http://www.netsmartz411.org/

http://www.enough.org/

http://www.webwisekids.org/

http://www.wiredsafety.org/

http://www.enough.org/inside.php?id=E7A5VT6VM

http://www.enough.org/inside.php?id=KXQN5947I

http://www.wiredwithwisdom.org/who_we_are.asp

http://www.wiredsafety.org/information/about_us.html



o Wired Cops (www.wiredcops.org or www.cyberlaw-enforcement.org) are “specially-trained volunteers [who] patrol the Internet looking for child pornography, child molesters and cyberstalkers.”

o Wired Kids (www.wiredkids.org) is geared toward youngsters and teens to help them understand online threats and know how to deal with them.

o Teen Angels (www.teenangels.org) “is a group of 13 to 18 year-old volunteers that have been specially trained by the local law enforcement, and many other leading safety experts in all aspects of online safety, privacy, and security. After training for six sessions, the Teenangels run unique programs in schools to spread the word about responsible and safe surfing to other teens and younger kids, parents, and teachers.”

o Net Bullies (www.NetBullies.com) aims to protect kids from cyber-bullying.

Many other excellent websites offer parents and kids outstanding advice about

how to stay safe online, including: Net Family News,337 ProtectKids.com,338 SafeKids.com,339 SafeTeens.com,340 ChatDanger.com,341 StopCyberbullying.org,342 Cyberbully.org,343 and StopTextBully.com.344 CNet.com also offers a very user-friendly portal for families.345 Finally, excellent examples of how other countries are addressing the same issues can be found at BeWebAware.ca (Canada),346 BeSafeOnline.org (Europe),347 KidSmart.org.uk (UK),348 and NetAlert.gov.au (Australia).349

337

http://netfamilynews.org/index.shtml

338 http://protectkids.com

339 www.safekids.com

340 www.safeteens.com

341 www.chatdanger.com

342 www.stopcyberbullying.org

343 www.cyberbully.org

344 www.stoptextbully.com

345 www.cnet.com/2001-13384_1-0.html

346 www.bewebaware.ca

347 www.besafeonline.org

348 www.kidsmart.org.uk

349 www.netalert.gov.au

http://www.wiredcops.org/

http://www.cyberlaw-enforcement.org/

http://www.wiredkids.org/

http://www.teenangels.org/

http://www.netbullies.com/


http://protectkids.com/

http://www.safekids.com/

http://www.safeteens.com/

http://www.chatdanger.com/

http://www.stopcyberbullying.org/

http://www.cyberbully.org/

http://www.stoptextbully.com/

http://www.cnet.com/2001-13384_1-0.html

http://www.bewebaware.ca/

http://www.besafeonline.org/

http://www.kidsmart.org.uk/

http://www.netalert.gov.au/



Exhibit 45: Books about Online Safety and Sensible Media Use

Several good books are also available that can help parents get a better feel for how to deal with online concerns in general. Some of the best recent books include Nancy Willard’s Cyber-Safe Kids, Cyber-Savvy Teens;350 Sharon Miller Cindrich’s e-Parenting: Keeping Up with Your Tech-Savvy Kids;351 Larry Magid and Anne Collier’s MySpace Unraveled: A Parent’s Guide to Teen Social Networking;352 Linda Criddle’s Look Both Ways: Help Protect Your Family on the Internet;353 Gregory S. Smith’s How to

350

Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), www.cskcst.com

351 Sharon Miller Cindrich, e-Parenting: Keeping Up with Your Tech-Savvy Kids (New York: Random House Reference, 2007), www.pluggedinparent.com

352 Larry Magid and Anne Collier, MySpace Unraveled: A Parent’s Guide to Teen Social Networking (Berkeley, CA: Peachtree Press, 2007), www.myspaceunraveled.com

353 Linda Criddle, Look Both Ways: Help Protect Your Family on the Internet (Redmond, WA: Microsoft Press, 2006), http://look-both-ways.com/about/toc.htm




http://look-both-ways.com/about/toc.htm



Protect Your Children on the Internet: A Road Map for Parents and Teachers;354 and Jason Illian’s MySpace, MyKids: A Parent's Guide to Protecting Your Kids and Navigating MySpace.com.355 Filters and Monitoring Software One of the first things that most of these sites and books recommend is that parents install filtering or monitoring software on the computers their children use. Parents can either use “client-side” filtering and monitoring tools or rely on the parental control tools provided by their Internet service provider, often called “server-side” controls. A discussion of both types of tools follows.

(1) Independent / “Client-Side” Filters and Monitoring Tools: Most parents are familiar with Internet filtering software and many parents use filters to control their children’s online surfing activities. Until recently, most filtering software was purchased at retail stores or downloaded from websites and installed on the user’s personal computer. These stand-alone or “boxed” filtering solutions are typically referred to as “client-side” filters. These client-side solutions are still very popular and many different vendors continue to compete in this market.356

At a minimum, these software tools let parents block access to adult websites

and typically let parents impose time management constraints on their children’s computer and Internet usage. Increasingly, however, these software packages also include far more robust monitoring tools that let parents see each website their children visit, view every e-mail or instant message that they send and receive, or even record every word that they type into their word processors.357 Many of these stealth monitoring tools can then send parents a periodic report summarizing their child’s Internet usage and communications. More robust software programs even allow parents to capture screen shots of sites their kids have visited. Finally, these tools allow parents to do all this in a surreptitious fashion since, once the software is installed on a child’s computer, it is entirely invisible to the user.

Many of these tools include e-mail monitoring capabilities and some are

exclusively tailored to ensuring child-friendly e-mail experiences. For example, ZooBuh lets parents approve their child’s e-mail contact list and manage file attachments.358 It 354

Gregory S. Smith, How to Protect Your Children on the Internet: A Road Map for Parents and Teachers (Westport, CT: Praeger, 2007), www.gregoryssmith.com

355 Jason Illian, MySpace, MyKids: A Parent's Guide to Protecting Your Kids and Navigating MySpace.com (Eugene, OR; Harvest House Publishers, 2007).

356 A comprehensive list of filter providers can be found on David Burt’s “Filtering Facts” blog: http://filteringfacts.org/filtering/filtering-companies/

357 See Jessica E. Vascellaro & Anjali Athavaley, Foley Scandal Turns Parents Into Web Sleuths, Wall Street Journal, Oct. 18, 2006, at D1.

358 www.zoobuh.com


http://filteringfacts.org/filtering/filtering-companies/

http://www.zoobuh.com/



also has a bad-words filter to block foul language and parents can add specific words to the system they want to see blocked. AOL and Microsoft have similar capabilities built into their family safety offerings.

Similarly, IMSafer offers a free downloadable tool that can help parents monitor

instant messenger conversations and notify them when their child is engaged in a potentially dangerous conversation on IM.359 Importantly, the IMSafer tool respects a child’s privacy since parents are not allowed to read the full transcripts of online communications. Instead, the application only monitors IM conversations for content that is considered dangerous. Importantly, however, this includes the trading of phone numbers or other personal information. Safe Chat Universal Messenger works much the same way.360 It lets parents block foul language or specific sites and users on various IM networks, such as MSN, Yahoo, AIM, and ICQ.

Some parents might flinch at this level of child surveillance, but others will find it

entirely appropriate, especially for very young children just getting online.361 Regardless, a wide variety of such filtering and monitoring tools is available and they can be calibrated to meet parents’ specific needs and values.

A comprehensive list of these software tools can be found at the GetNetWise.org

website,362 and some of the most popular filtering and monitoring tools are listed in the adjoining exhibit. Of course, not all filtering and monitoring tools are equal, and features vary by product. Moreover, tools come and go, and many change over time in terms of functions and capabilities.

359

www.imsafer.com

360 www.zihtec.com/en/how_safe_chat_protects_children.html

361 As the National Research Council report concluded of monitoring software: “*A+ctive supervision of children is often appropriate—not because they are criminals but because it is the responsibility of adults to teach them how to internalize the appropriate values and to become better at avoiding inappropriate behavior as they mature.” Computer Science and Telecommunications Board, National Research Council, Youth, Pornography, and the Internet (Washington, DC: National Academy Press, 2002), at 315.

362 See www.getnetwise.org

http://www.imsafer.com/

http://www.zihtec.com/en/how_safe_chat_protects_children.html




Exhibit 46: Internet Filtering and Monitoring Software for PCs

AOL Parental Controls (http://parentalcontrols.aol.com) BeNetSafe (www.benetsafe.com) Bsafe Online (http://bsafeonline.com) Clean Internet.com (http://cleaninternet.com) Content Cleaner (www.contentpurity.com) CyberPatrol

(www.cyberpatrol.com) Cyber Sentinel (www.cybersentinel.com) CyberSitter

(www.cybersitter.com) eBlaster (www.spectorsoft.com) FamiLink (www.familink.com) Family Cyber Alert (www.itcompany.com) FilterGate (http://filtergate.com) FilterPak (www.surfguardian.net/products.shtml) Guardian Monitor (www.guardiansoftware.com) IamBigBrother

(www.iambigbrother.com) iShield (www.guardwareinc.com) K9 Web Protection (www.k9webprotection.com) KidsNet (www.kidsnet.com) Livia Web Protection (www.liviaweb.com) McAfee Internet Security Suite (http://us.mcafee.com) McGruff SafeGuard (www.GoMcGruff.com) Microsoft Live One Care (www.windowsonecare.com) Miss America Kid Safe Web Browser (www.missamericakids.com) NetIntelligence

(www.netintelligence.com) Netsweeper (www.netsweeper.com) NetMop (www.netmop.com) NetNanny

(www.netnanny.com) NoodleNet (www.noodlenet.com) Norton Online Family (https://onlinefamily.norton.com) Online Safety Shield (www.onlinesafetyshield.com) Optenet PC (www.optenetpc.com) Parental Control Bar (www.wraac.org) PC Pandora (www.pcpandora.com) PC Tattletale (www.pctattletale.com) Razzul (www.kidinnovation.com) SafeEyes (www.internetsafety.com/safe-eyes) SafeSquid (www.safesquid.com) Sentry At Home (www.sentryparentalcontrols.com) Sentry Remote (www.sentryparentalcontrols.com) SnoopStick (www.snoopstick.com) Spector Pro (www.spectorsoft.com) SoftActivity Keylogger (www.softactivity.com) Spy Agent (www.spytech-web.com/software.shtml) Surf On the Safe Side (www.surfonthesafeside.com) SurfPass

(www.cogilab.com) Surf Recon (www.surfrecon.com) Trend Micro Internet Security Pro (www.trendmicro.com) Webroot Parental Controls (www.webroot.com) WebWatcher (www.awarenesstech.com/parents/index.html)

http://parentalcontrols.aol.com/

http://www.benetsafe.com/

http://bsafeonline.com/

http://cleaninternet.com/

http://www.contentpurity.com/

http://www.cyberpatrol.com/

http://www.cybersentinel.com/

http://www.spectorsoft.com/

http://www.familink.com/

http://www.itcompany.com/

http://filtergate.com/

http://www.surfguardian.net/products.shtml

http://www.guardiansoftware.com/

http://www.iambigbrother.com/

http://www.guardwareinc.com/

http://www.k9webprotection.com/

http://www.kidsnet.com/

http://www.kidsnet.com/

http://www.liviaweb.com/

http://us.mcafee.com/

http://www.gomcgruff.com/

http://www.windowsonecare.com/

http://www.missamericakids.com/

http://www.netintelligence.com/

http://www.netsweeper.com/

http://www.netmop.com/

http://www.noodlenet.com/

https://onlinefamily.norton.com/

http://www.onlinesafetyshield.com/

http://www.optenetpc.com/

http://www.wraac.org/

http://www.pcpandora.com/

http://www.pctattletale.com/

http://www.kidinnovation.com/

http://www.internetsafety.com/safe-eyes

http://www.safesquid.com/

http://www.sentryparentalcontrols.com/

http://www.sentryparentalcontrols.com/

http://www.snoopstick.com/

http://www.spectorsoft.com/

http://www.softactivity.com/

http://www.spytech-web.com/software.shtml

http://www.surfonthesafeside.com/

http://www.surfrecon.com/

http://www.trendmicro.com/

http://www.webroot.com/

http://www.awarenesstech.com/parents/index.html



Exhibit 47: Filter and Monitoring Software Review Sites

www.child-internet-safety.com

www.monitoringsoftwarereviews.org

http://filteringfacts.org/filtering/filtering-companies

http://internet-filter-review.toptenreviews.com

www.filterreview.com

www.download.com/sort/3150-2162_4-0-1-3.html

www.consumersearch.com/www/software/parental-control-software/index.html

www.pcmag.com/category2/0,1874,1639158,00.asp

What’s important for parents to keep in mind is that these two types of tools are

complementary. On their own, neither tool is perfect. When used in combination, however, they provide parents a formidable set of tools to better control their children’s online activities. As Gregory Smith, author of How to Protect Your Children on the Internet, notes:

Content filtering and monitoring software has come a long way in the past few years and is getting more powerful with every new release. That said, it’s by no means perfect and should not be the only technical solution that adults rely on to ensure that their kids are doing the right things and are not putting themselves at risk by posting personal information or conversing with strangers in cyberspace. That’s where stealth software… comes into play. It removes any doubt about what your children are doing on the Internet by providing the clear facts of their online habits, tools, and even with whom they are conversing, regardless of the tool used. Stealth software also fills in the gaps that imperfect content filtering solutions have in the marketplace.363

(2) ISP-Integrated (“Server-Side”) Parental Controls and Filtering Tools: Stand-alone or “client-side” filtering solutions, such as those described above, dominated the online parental controls marketplace in the late 1990s. The market has changed significantly since then, however. Today, Internet service providers (ISPs)—including major broadband service providers (BSPs)—offer parental control services as part of an integrated suite of security tools, which typically include anti-virus, anti-spyware, and anti-Spam tools. These security options are often offered free of charge, or for a small additional fee, when subscribers sign up for monthly Internet service. And most of these

363

Gregory S. Smith, How to Protect Your Children on the Internet: A Road Map for Parents and Teachers (Westport, CT: Praeger, 2007), at97-99.

http://www.child-internet-safety.com/

http://www.monitoringsoftwarereviews.org/

http://filteringfacts.org/filtering/filtering-companies

http://internet-filter-review.toptenreviews.com/

http://www.filterreview.com/

http://www.download.com/sort/3150-2162_4-0-1-3.html

http://www.consumersearch.com/www/software/parental-control-software/index.html

http://www.pcmag.com/category2/0,1874,1639158,00.asp



integrated tools offer automatic updates such that consumers need not manually download upgrades to stay current.

Thus, millions of parents now have free or quite inexpensive Internet parental control tools at their disposal as soon as they sign up for Internet access through an ISP. Of course, parents can also add on other tools or independent filtering and monitoring solutions such as those outlined earlier.

The adjoining exhibit lists the Internet security websites for major ISPs and

broadband operators and provides screen shots of some of their websites.

Exhibit 48: Internet Security and Parental Control Websites for Major ISPs and Broadband Operators

AOL (http://daol.aol.com/security)

AT&T (www.att.com/smartlimits) + (www.att.com/safety)

Cablevision (www.powertolearn.com/internet_smarts/index.shtml)

Charter (www.charter.com/Visitors/NonProducts.aspx?NonProductItem=65)

Comcast (www.comcast.net/security)

Cox (www.cox.com/takecharge/internet_controls.asp)

Earthlink (www.earthlink.net/software/free/parentalcontrols)

Insight BB (www.insightbb.com/pcsecurity/default.aspx)

Microsoft (www.microsoft.com/protect)

NetZero (www.netzero.net/support/security/tools/parental-controls.html)

Qwest (www.incredibleinternet.com)

Time Warner (www.timewarnercable.com)

Verizon (http://parentalcenter.verizon.radialpoint.net)

http://daol.aol.com/security

http://www.att.com/smartlimits

http://www.att.com/safety

http://www.powertolearn.com/internet_smarts/index.shtml

http://www.charter.com/Visitors/NonProducts.aspx?NonProductItem=65

http://www.comcast.net/security

http://www.cox.com/takecharge/internet_controls.asp

http://www.earthlink.net/software/free/parentalcontrols

http://www.insightbb.com/pcsecurity/default.aspx

http://www.microsoft.com/protect

http://www.netzero.net/support/security/tools/parental-controls.html

http://www.incredibleinternet.com/

http://www.timewarnercable.com/

http://www.timewarnercable.com/

http://parentalcenter.verizon.radialpoint.net/



Exhibit 49: Major ISP Online Safety Sites

AT&T’s “Smart Limits”

Qwest’s “Incredible Internet”

NCTA’s “Point Smart. Click Safe”

Verizon’s “Parental Control Center”

Operating Systems and Web Browser Controls Increasingly, companies like Microsoft and Apple are integrating parental controls into PC operating systems and web browsers. As Walter Mossberg of The Wall Street Journal notes, these are “powerful tools to help parents get a handle on their children’s computing and online activities.”364 “The battle to one-up each other in parental controls is only going to benefit consumers,” said Chris Swenson, director of software industry analysis at the research firm the NPD Group. “There’s really no excuse now for parents not to lock down their PCs for their children.”365

364

Walter S. Mossberg, You Have Weapons in Your Computer to Monitor Your Kids, Wall Street Journal, June 14, 2007, at B1.

365 Quoted in Stefanie Olsen, Parents the Winner in Leopard, Vista Showdown, CNet News.com, Nov. 20, 2007, www.news.com/Parents-the-winner-in-Leopard%2C-Vista-showdown/2009-1025_3-6219420.html

http://www.news.com/Parents-the-winner-in-Leopard%2C-Vista-showdown/2009-1025_3-6219420.html

http://www.news.com/Parents-the-winner-in-Leopard%2C-Vista-showdown/2009-1025_3-6219420.html



(1) Microsoft’s “Vista” OS and Internet Explorer browser: Released in 2007, Microsoft’s Windows “Vista” operating system is the company’s first version of Windows that incorporates embedded family safety tools. As Seth Schiesel of The New York Times reports, “With Vista, Microsoft has for the first time built a robust set of parental controls directly into the operating system, not just for gaming but also for Web browsing, file downloading and instant messaging.”366

Vista lets parents establish “administrator” accounts and then oversee the

individual users—namely, their own children—who are using the PCs. Parents can then configure the Vista sub-accounts to enable various parental control features and monitoring tools. They can turn on web filters that will block specific types of potentially objectionable website content or downloads. Time limits can also be established for the PC that restrict when or how long the child may use the computer.

Also, much like new video game consoles, Vista will also let parents restrict

video game play by rating or title, and games without ratings can be blocked entirely. Parents can also see an “activity list” of the sites their child has visited, or attempted to visit, as well as files and applications that have been downloaded. Applications or software parents find objectionable can then be blocked from that same screen.367 Importantly, once these parental controls have been enabled within Vista, there is no need for parents to configure additional controls within Internet Explorer. Vista controls all Internet Explorer web-browsing activities.

Finally, Microsoft has opened up “application programming interfaces” (APIs) to third-party software developers so that they can build additional parental control tools on top of Vista. One of these developers is IMSafer, which was discussed earlier. A number of other add-ons for Internet Explorer let parents add further layers of controls.

366

Seth Schiesel, For Parents, New Ways to Control the Action, New York Times, Jan. 8, 2007, www.nytimes.com/2007/01/08/arts/08vist.html?ex=1325912400&en=3bb7bc1b6a470a23&ei=5090&partner=rssuserland&emc=rss

367 www.microsoft.com/windowsvista/features/forhome/safety.mspx#more

http://www.nytimes.com/2007/01/08/arts/08vist.html?ex=1325912400&en=3bb7bc1b6a470a23&ei=5090&partner=rssuserland&emc=rss

http://www.nytimes.com/2007/01/08/arts/08vist.html?ex=1325912400&en=3bb7bc1b6a470a23&ei=5090&partner=rssuserland&emc=rss

http://www.microsoft.com/windowsvista/features/forhome/safety.mspx#more



Exhibit 50: Vista Operating System Parental Controls



(2) Apple’s OS X “Leopard” and Safari browser: With Apple’s recent release of its OS X “Leopard” operating system, the company’s parental control tools have grown more sophisticated and rival Microsoft’s Vista-based controls.368

Apple’s operating system allows parents to establish accounts for their children

and keep tabs on their online activities using monitoring tools and time management controls. In addition, parents can also build a restricted “buddies list” for their children and then disallow instant messaging to anyone else. The system can also hide the child’s online status so that only those pre-approved buddies can see that they are online at any time.

Apple’s Safari web browser works in conjunction with the Leopard filter to

maintain a safe online experience. Parents can establish whitelists of websites their children can visit and then other sites will be blacklisted.

Exhibit 51: “Glubble” for the Firefox Web Browser

(3) Firefox / Glubble: Firefox is an independent web browser that managed by the non-profit Mozilla Foundation. Although Mozilla does not offer parental controls directly for the Firefox browser, third parties are free to devise and offer parental control tools as “add-ons” to the browser. “Glubble” is one such example.369 Once the program is loaded onto a user’s computer, Glubble locks the Firefox browser such that a password is required before a user can access the Internet. Parents can then establish a user account for their children that only allows them access to a set of pre-screened, kid-friendly websites. 368

www.apple.com/macosx/features/parentalcontrols.html

369 www.glubble.com

http://www.apple.com/macosx/features/parentalcontrols.html

http://www.glubble.com/



(4) KidZui: KidZui is a kid-friendly browser that works with both Windows and Apple-based operating systems.370 As of October 2008, the service was providing access to over 1.5 million kid-friendly websites, videos, and pictures that had all been pre-screened by over 200 trained teachers and parents.371 The company employs a rigorous 5-step “content selection process” to determine if it is acceptable for kids between 3-12 years of age.372 Parents are also sent an activity report for their child to see what they have been viewing. The service costs $39.95 a year, or $7.95 a month to access all services, but a stripped-down version of the software is also available free.373 Finally, in July 2009, KidZui partnered with cable operator Comcast to offer its portal to Comcast subscribers across America at no additional charge to them.374

Exhibit 52: KidZui Web Browser

370

www.kidzui.com

371 www.marketwire.com/press-release/Kidzui-909109.html

372 www.kidzui.com/contentselection

373 For an independent review of the KidZui service, see: Walter Mossberg, KidZui’s Parent Plan Lets Children Explore in Safe Corner of Web, Wall Street Journal, March 20, 2008, at B1, http://online.wsj.com/article/SB120597536349250547.html?mod=technology_featured_stories_hs; Amy Tiemann, Kidzui Creates a New Online Environment for Kids, CNet News ParentThesis Blog, March 20, 2008, www.cnet.com/8301-13507_1-9900282-18.html

374 Comcast Corp., Comcast Launches Award-Winning KidZui, a Safe, Comprehensive Internet Portal for Kids, July 22, 2009.

http://www.kidzui.com/

http://www.marketwire.com/press-release/Kidzui-909109.html

http://www.kidzui.com/contentselection

http://online.wsj.com/article/SB120597536349250547.html?mod=technology_featured_stories_hs

http://www.cnet.com/8301-13507_1-9900282-18.html



(4) Other “Child-Safe” Browsers: There are other kid-friendly browsers that operate much like KidZui and Glubble. They include Browser Buddy,375 KidRocket,376 KIDO’Z,377 Noodle Net,378 Hoopah Kidview Computer Explorerand379 and Peanut Butter PC.380 Neil Rubenking of PC Mag.com notes that “Child-safe browsers strip away a lot of the complexity of Internet Explorer or Firefox. They generally block pop-ups, allow only one page to be open at a time, and suppress confusing right-click menus. Typically you’ll find just a few big buttons—perhaps just a Home and a Back button. And they limit the sites kids can visit.” These browsers also lock children out of the rest of mom and dad’s PC so that they cannot access or delete important files on the hard drive.381 “Safe Search” Engine Filters and Web Portals for Kids Parents can also use tools embedded in search engines to block a great deal of potentially objectionable content that children might inadvertently stumble upon during searches. For example, Google offers a SafeSearch feature that allows users to filter unwanted content. Users can customize their SafeSearch settings by clicking on the “Preferences” link to the right of the search box on the Google.com home page.382 Users can choose “moderate filtering,” which “excludes most explicit images from Google Image Search results but doesn’t filter ordinary web search results,” or “strict filtering,” which applies the SafeSearch filtering controls to all search engine results. Similarly, Yahoo! has a SafeSearch tool that can be found under the “Preferences” link on the “My Web” tab.383 Like Google, Yahoo! allows strict or moderate filtering. Microsoft’s Live Search works largely the same way.384 Other search engine providers such as AltaVista,385 AskJeeves,386 HotBot,387 Lycos,388 and AllTheWeb,389 also provide filtering tools. Working in conjunction with other filters, these search engine tools are quite effective in blocking a significant amount of potentially objectionable content. 375

www.buddybrowser.com 376

http://kidrocket.org/ 377

www.kidoz.net 378

www.noodlenet.com 379

www.hoopah.com 380

www.peanutbuttersoftware.com 381

See Neil J. Rubenking, “Child-Safe Browsers,” PC Mag.com, July 15, 2008, www.pcmag.com/article2/0,2817,2325581,00.asp.

382 www.google.com/intl/en/help/customize.html#safe

383 http://myweb.yahoo.com

384 http://search.msn.com/settings.aspx

385 www.altavista.com/web/ffset?ref=/

386 www.ask.com/webprefs

387 www.hotbot.com/prefs_filters.asp

388 http://search.lycos.com/adv.php?query=&adf=

389 www.alltheweb.com/customize?backurl=Lw&withjs=1

http://www.buddybrowser.com/

http://kidrocket.org/

http://www.kidoz.net/


http://www.hoopah.com/

http://www.peanutbuttersoftware.com/


http://www.google.com/intl/en/help/customize.html#safe

http://myweb.yahoo.com/

http://search.msn.com/settings.aspx

http://www.altavista.com/web/ffset?ref=/

http://www.ask.com/webprefs

http://www.hotbot.com/prefs_filters.asp

http://search.lycos.com/adv.php?query=&adf

http://www.alltheweb.com/customize?backurl=Lw&withjs=1



Exhibit 53: “Safe Search” Filtering Tools

Google

Yahoo

Microsoft



A better approach to use with younger children is to direct them to search engines or web portals geared toward younger audiences. Several excellent websites, such as those listed in an adjoining exhibit, let kids search numerous sites without stumbling upon adult-oriented material.390 Better yet, they direct children to sites and information that are educational and enriching. In essence, these search portals are massive white lists of acceptable sites and content that have been pre-screened to ensure that they are appropriate for very young web surfers. The only downside of using such services is that a lot of wonderful material available on the World Wide Web might be missed, but many parents will be willing to make that trade-off since they desire greater protection of their children from potentially objectionable content.

Exhibit 54: Kid-Friendly Internet Search Engines and Web Portals

ALA’s Great Web Sites for Kids (www.ala.org/greatsites)

AOL for Kids (U.S.) (http://kids.aol.com)

AOL for Kids (Canada) (http://canada.aol.com/aolforkids)

Ask Kids (www.askkids.com)

Awesome Library for Kids (www.awesomelibrary.org)

Diddabdoo (www.dibdabdoo.com)

Education World (www.education-world.com)

Fact Monster (www.factmonster.com)

FirstGov for Kids (www.kids.gov)

KidsClick (www.kidsclick.org)

Kid Zui (www.kidzui.com)

Noodle Net (www.noodlenet.com)

NetTrekker (www.nettrekker.com)

SearchEdu.com (www.searchedu.com)

Surfing the Net with Kids (www.surfnetkids.com)

TekMom’s Search Tools for Students (www.tekmom.com/search)

ThinkQuest (www.thinkquest.org)

Yahoo! Kids (http://kids.yahoo.com)

More Online Content-Tailoring Options and Kid-Friendly Websites The child-friendly web portals discussed above generally direct children to informational and educational sites and resources. There are many other ways to tailor the web-surfing experience to a family’s specific needs and values. The Internet is full of wonderful sites dedicated to kids and teens. Many have an educational focus, whereas others offer enjoyable games and activities for children. The adjoining exhibit highlights

390

This lists builds on the excellent compendium of sites listed at the Search Engine Watch website: http://searchenginewatch.com/showPage.html?page=2156191

http://www.ala.org/greatsites

http://kids.aol.com/

http://canada.aol.com/aolforkids

http://www.askkids.com/

http://www.awesomelibrary.org/

http://www.dibdabdoo.com/

http://www.education-world.com/

http://www.factmonster.com/

http://www.kids.gov/

http://www.kidsclick.org/

http://www.kidzui.com/


http://www.nettrekker.com/

http://www.searchedu.com/

http://www.surfnetkids.com/

http://www.tekmom.com/search/

http://www.thinkquest.org/

http://kids.yahoo.com/

http://searchenginewatch.com/showPage.html?page=2156191



some of the best of these websites, but this list only scratches the surface. If parents wanted, they could configure their web browsers to access only sites such as these and then block access to all other webpages.

Exhibit 55: Child- and Teen-Oriented Websites & Virtual Worlds

Candy Stand (www.candystand.com)

Clever Island (www.cleverisland.com)

Club Penguin (www.clubpenguin.com)

Disney’s Club Blast (http://disney.go.com/blast)

Disney’s DGamer (http://disney.go.com/dxd2/index.html?channel=68447)

Disney’s Playhouse (http://disney.go.com/playhouse/today/index.html)

Disney Toontown Online (http://play.toontown.com)

Everything Girl (http://pollypocket.everythinggirl.com)

Fun Brain (www.funbrain.com)

Habbo (www.habbo.com)

HBO Family Games (www.hbofamily.com/games)

Iland5 (www.iland5.com)

Kaboose Family Network (www.kaboose.com)

Kaboose FunSchool (http://funschool.kaboose.com)

KidsClick (www.kidsclick.org)

KidsFirst (www.kidsfirst.org)

My Secret Circle (http://mysecretcircle.com)

NeoPets (www.neopets.com)

Net Smartz Kids (www.netsmartzkids.org)

Nickelodeon Games (www.nick.com/games)

Nick Jr. Playtime (www.nickjr.com/playtime)

Nicktropolis (www.nicktropolis.com)

Noggin Games (www.noggin.com/games)

PopCap (www.popcap.com)

PBS Kids (http://pbskids.org/go)

Surfing the Net with Kids (www.surfnetkids.com)

Webkinz (www.webkinz.com)

Yahoo! Kids (http://kids.yahoo.com)

YoKidsYo (www.yokidsyo.com)

Zeeks (www.zeeks.com)

ZoeysRoom.com (www.zoeysroom.com)

Zwinky Cuties (www.zwinkycuties.com)

http://www.candystand.com/

http://www.cleverisland.com/

http://www.clubpenguin.com/

http://disney.go.com/blast

http://disney.go.com/dxd2/index.html?channel=68447

http://disney.go.com/playhouse/today/index.html

http://play.toontown.com/

http://pollypocket.everythinggirl.com/

http://www.funbrain.com/

http://www.habbo.com/

http://www.hbofamily.com/games

http://www.iland5.com/

http://www.kaboose.com/

http://funschool.kaboose.com/

http://www.kidsclick.org/

http://www.kidsfirst.org/

http://mysecretcircle.com/

http://www.neopets.com/

http://www.netsmartzkids.org/

http://www.nick.com/games

http://www.nickjr.com/playtime

http://www.nicktropolis.com/

http://www.noggin.com/games

http://www.popcap.com/

http://pbskids.org/go

http://www.surfnetkids.com/

http://www.webkinz.com/

http://kids.yahoo.com/

http://www.yokidsyo.com/

http://www.zeeks.com/

http://www.zoeysroom.com/

http://www.zwinkycuties.com/



Social Networking Site Safety & Cyberbullying Concerns Social networking websites have become wildly popular with teenagers in recent years. Sites such as MySpace, Facebook, Xanga, Bebo, LiveJournal, and Windows Live Spaces attract millions of users and represent just a few of the hundreds of social networking sites (SNS) online today.391 These sites offer their users the space and tools to build the equivalent of an online journal and to easily network with others. It seems that new sites surface every week, growing ever-more personalized in an attempt to appeal to specific niches.392 Social networking services are also being integrated into gaming consoles, and many video games increasingly feature interactive social networking features.393 Many parents and policymakers have grown quite concerned about how youngsters use these social networking sites and services. These concerns have prompted lawmakers to introduce legislation to ban access to such sites in schools and libraries.394 Others, including several state attorneys general, want such sites to age-verify all users to exclude those over or under a certain age.395 Proposals to impose age verification schemes on social networking websites are discussed in more detail in Section V.B.396

391

For a list of notable social networking sites, see http://en.wikipedia.org/wiki/List_of_social_networking_websites

392 See Robert D. Hof, There’s Not Enough ‘Me’ in MySpace, Business Week, Dec. 4, 2006, at 40.

393 Walaika Haskins, Gamin’s Play for Social Networks, Tech News World, May 12, 2008, www.technewsworld.com/story/social-networking/62953.html

394 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). 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; Anne Broache, “Congress Off to Slow Start with Tech,” ZDNet News, Jan. 9, 2007, http://news.zdnet.com/2100-9588_22-6148312.html

395 Susan Haigh, Conn. Bill Would Force MySpace Age Check , Yahoo News.com, March 7, 2007, www.msnbc.msn.com/id/17502005

396 Also see Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point 14.5, March 21, 2007. www.pff.org/issues-pubs/pops/pop14.5ageverification.pdf

http://en.wikipedia.org/wiki/List_of_social_networking_websites

http://www.technewsworld.com/story/social-networking/62953.html

http://news.com.com/2100-1028_3-6099414.html?part=rss&tag=6099414&subj=news

http://news.zdnet.com/2100-9588_22-6148312.html

http://www.msnbc.msn.com/id/17502005

http://www.pff.org/issues-pubs/pops/pop14.5ageverification.pdf




Exhibit 56: A Snapshot of Teen Online Social Networking Activity, 2006

o 55% of online teens (ages 12-17) had online profiles at the end of 2006. o Among the teens who have profiles, 66% of them say that their profile is not visible to all

internet users. They limit access to their profiles in some way. o Among those whose profiles can be accessed by anyone online, 46% say they give at

least a little and sometimes a good deal of false information on their profiles. Teens post fake information to protect themselves, but also to be playful or silly.

o Most teens are using the networks to stay in touch with people they already know, either friends that they see a lot (91% of social networking teens have done this) or friends that they rarely see in person (82%).

o 49% of social network users say they use the networks to make new friends. o 32% of online teens have been contacted by strangers online – this could be any kind of

online contact, not necessarily contact through social network sites. o 21% of teens who have been contacted by strangers have engaged an online stranger to

find out more information about that person (that translates to 7% of all online teens). o 23% of teens who have been contacted by a stranger online say they felt scared or

uncomfortable because of the online encounter (that translates to 7% of all online teens). Of the 55% of online teens who have profiles; here is a rundown of the kinds of information

they post: o 82% of profile creators have included their first name in their profiles o 79% have included photos of themselves. o 66% have included photos of their friends. o 61% have included the name of their city or town. o 49% have included the name of their school. o 40% have included their instant message screen name. o 40% have streamed audio to their profile. o 39% have linked to their blog. o 29% have included their email address. o 29% have included their last names. o 29% have included videos. o 2% have included their cell phone numbers. o 6% of online teens and 11% of profile-owning teens post their first and last names on

publicly-accessible profiles. o 3% of online teens and 5% of profile-owning teens disclose their full names. Source: Pew Internet & American Life Project, Teens, Privacy & Online Social Networks, April

18, 2007, www.pewinternet.org

These concerns are not surprising. “People naturally fear what they do not

understand,” says Jason Illian, author of MySpace, MyKids.397 But, “regardless of how you feel about the Internet and online communities, they are here to stay… Likewise, we’re not going to stop our teenagers from chatting online and meeting new people. We just need to teach them how to do it properly so that they don’t get hurt.”398

397

Jason Illian, MySpace, MyKids (Eugene, OR: Harvest House Publishers, 2007), at 10.

398 Id., at 11.

http://www.pewinternet.org/



To begin, parents need to understand social networking websites, quite unlike other “professional” websites, feature a great deal of “amateur” user-generated content. This makes it more difficult for filters or other parental control tools to screen out potentially undesirable material (although many traditional filtering providers are improving their systems to account for material and information shared on social networking sites.)399 Fortunately, most mainstream social networking sites take steps to pre-screen many of the images that are uploaded to their sites and to block objectionable material. But it will be impossible for website operators to control everything that is said or posted in light of the sheer volume of material and user-to-user communication taking place. But it will be impossible for website operators to control everything that is said or posted in light of the sheer volume of material and human communication taking place.

Parents will need to determine which social networking sites are right for their

children. As the SNS marketplace evolves and grows, niche SNS are developing that are tailored to specific age groups or interests. Parents of pre-teens should be particularly careful about letting their kids go on social networking sites. But there are some smaller social networking sites or virtual worlds such as ClubPenguin.com,400 ZoeysRoom.com,401 and Nicktropolis402 that have extremely strict enlistment policies, primarily because they target or allow younger users.403 Some of these sites also tightly limit chat capabilities to ensure added safety.404 These sites are discussed in more detail in the section on age verification in Section V.B. Parents could also use the “walled garden” browser tools like Glubble and KidZui, which were highlighted above.

Parents of tweens and teens will need to consider additional solutions once their kids grow tired of those sites and service and want to move on to more mainstream social networking sites. Monitoring software could certainly be part of the answer. Many monitoring tools, discussed earlier, give parents a clear idea of how much time their kids spend online, the specific sites they are visiting, and with whom they are conversing. In January 2008, MySpace.com announced a major agreement with 49 state Attorneys General aimed at better protecting children online.405 (This agreement is

399

See David Burt, Filtering Industry to Social Networking with Monitoring, Filtering Facts, June 15, 2009, http://filteringfacts.org/2009/06/15/filtering-industry-adapts-to-social-networking-with-monitoring

400 www.clubpenguin.com

401 www.zoeysroom.com

402 www.nicktropolis.com

403 A comprehensive list of such sites is available from Virtual Worlds Management: www.virtualworldsmanagement.com/2008/youthworlds.html

404 Mike Musgrove, Kid e-Land, Washington Post, May 16, 2008, at D1, www.washingtonpost.com/wp-dyn/content/article/2008/05/15/AR2008051503762.html

405 Anne Barnard, MySpace Agrees to Lead Fight to Stop Sex Predators, New York Times, Jan. 15, 2008, www.nytimes.com/2008/01/15/us/15myspace.html?ref=us. Adam Thierer, The Progress & Freedom

http://filteringfacts.org/2009/06/15/filtering-industry-adapts-to-social-networking-with-monitoring

http://www.clubpenguin.com/

http://www.zoeysroom.com/

http://www.nicktropolis.com/

http://www.virtualworldsmanagement.com/2008/youthworlds.html



http://www.nytimes.com/2008/01/15/us/15myspace.html?ref=us



discussed in more detail in Section IV.D). As part of that agreement, MySpace pledged to take various steps to enhance site safety and privacy.406 Facebook.com struck a similar agreement with AGs following MySpace.

Exhibit 57: MySpace.com’s Safety & Security Website

Additional tips for parents about social networking sites can be found in two very accessible booklets: MySpace Unraveled: A Parent’s Guide to Teen Social Networking, by Larry Magid and Anne Collier407 and MySpace, MyKids, by Jason Illlian.408 Also, the Federal Trade Commission’s OnGuardOnline.gov website offers “Social Networking Safety Tips for Tweens and Teens” as well as “A Parent’s Guide” to social networking sites.409 And the Federal Bureau of Investigation offers “A Parent’s Guide to Internet

Foundation, The MySpace-AG Agreement: A Model Code of Conduct for Social Networking? Progress on Point 15.1, Jan. 2008, www.pff.org/issues-pubs/pops/pop15.1myspaceAGagreement.pdf

406 News Corp., MySpace and Attorneys General Announce Joint Effort to Promote Industry-Wide Internet Safety Principles, Press Release, Jan. 14, 2008, www.newscorp.com/news/news_363.html

407 Larry Magid and Anne Collier, MySpace Unraveled: A Parent’s Guide to Teen Social Networking (Berkeley, CA: Peachtree Press, 2007), at 2, www.myspaceunraveled.com.

408 Jason Illian, MySpace, MyKids (Eugene, OR: Harvest House Publishers, 2007).

409 http://onguardonline.gov/socialnetworking_youth.html and http://onguardonline.gov/socialnetworking.html

http://www.pff.org/issues-pubs/pops/pop15.1myspaceAGagreement.pdf

http://www.newscorp.com/news/news_363.html


http://onguardonline.gov/socialnetworking_youth.html

http://onguardonline.gov/socialnetworking.html



Safety” on its website offering similar advice.410 MySpace.com also offers safety tips for kids and parents on its site,411 which includes an “Official Parent and Family Guide” to help them understand how to keep their kids safe online.412 GetNetWise.org also offers excellent step-by-step video tutorials about how to establish privacy settings on major social networking sites to keep your online activities more private.413

Parents should realize that social networks offer them a “window into the world”

their kids are living in. As Jason Illian notes of MySpace, but is also true of all other social networking sites and activities in which our kids engage:

Believe it or not, MySpace can be a great tool for parents. It can be a second pair of eyes and ears for those who want to better understand their children and the challenges they face. Parents can use this virtual community to monitor, interact with, and encourage their kids like never before.

In many instances, MySpace doesn’t create problems, it simply reveals them. Teenagers face difficult decisions and peer pressure nearly every day. Some parents don’t want to admit that their children struggle with sexual temptations, drinking opportunities, drug-related issues, depression, or loneliness. But most teenagers do face most of those pressures. In the past, parents were able to turn a blind eye to these issues and act as if they didn’t exist. But in the virtual world, teens are writing down their problems and reaching out for help. Instead of guessing about our ignoring the issues that teenagers have, we have the unique opportunity through portals such as MySpace to understand their problems and provide help.414

Finally, as was outlined in Section II.C, parents should discuss proper online etiquette with their children before they allow them to get online or visit social networking sites. The websites and books mentioned above can greatly assist parents in this regard. A particular concern for many parents is cyberbullying, which is a growing problem. Luckily, sites are responding with new tools and reporting features. Sue Shellenbarger of the Wall Street Journal notes that “YouTube and some social-

410

www.fbi.gov/publications/pguide/pguidee.htm

411 www.myspace.com/Modules/Common/Pages/SafetyTips.aspx

412 MySpace.com, The Official Parent and Family Guide, http://cms.myspacecdn.com/cms/SafetySite/documents/MySpaceParentGuide.pdf

413 http://kids.getnetwise.org/safetyguide/technology/socialnetworking

414 Jason Illian, MySpace, MyKids (Eugene, OR: Harvest House Publishers, 2007), at 13.

http://www.fbi.gov/publications/pguide/pguidee.htm

http://www.myspace.com/Modules/Common/Pages/SafetyTips.aspx

http://cms.myspacecdn.com/cms/SafetySite/documents/MySpaceParentGuide.pdf

http://kids.getnetwise.org/safetyguide/technology/socialnetworking



networking sites are making it easier to report abuses such as cyberbullying, in which kids—and, appallingly, some adults—use online postings and emails to hurt others. The trend puts more tools in the hands of parents whose kids are the targets or the perpetrators of bullying.”415 Moreover, when children place cyberbullying videos online, it gives school administrators, law enforcement authorities, and others the chance to review the incident, track down the parties involved, and intervene as is appropriate.416 In late 2008, YouTube created a new “Abuse and Safety Center” to make it easier for users to report abusive behavior or inappropriate content.417 The site makes it easy for users to find helpful information from various expert organizations who deal with troubling behavior. For example, if a YouTube user reports “hateful content,” they are directed to tips from the Anti-Defamation League. Similarly, information from the National Suicide Prevention Lifeline is provided to those who report suicide concerns, and the National Center for Missing & Exploited Children provides information and links about sexual abuse of minors. YouTube also has strict “community guidelines” governing appropriate behavior on the site.418 Finally, in May 2009, YouTube announced a new “Filter W*rds” program that lets users block profanity and racial slurs. According to the site: “Users can opt into this by clicking on ‘Options’ next to the Comments header and checking the ‘Filter W*rds’ box. Users can also choose to hide comments altogether by clicking on ‘Hide Comments.’” Those user preferences will then be saved by the browser. According to YouTube, the site uses “a combination of feedback from users, proprietary technology, and a commonsense collection of words in English to decide what to filter.”419

415

Sue Shellenbarger, Cyberbully Alert: Web Sites Make It Easier to Flag Trouble, Wall Street Journal, Dec. 16, 2008, http://online.wsj.com/article_email/SB122947489283812469-lMyQjAxMDI4MjE5NzQxNzc0Wj.html

416 For example, following a skirmish at Beaufort High School in South Carolina that was captured on video and uploaded to YouTube, Beaufort Police Chief Matt Clancy told his local paper that a video of a fight or any other crime posted online makes the job of investigators easier when identifying possible suspects. “It’s a great tool for us,” he told the Beaufort Gazette. “You’ve got it on video, and you can identify the person and see what they're doing.” See Patrick Donohue, YouTube Gives Beaufort High Skirmish Wide Exposure, Beaufort Gazette.com, April 2, 2009, www.islandpacket.com/1482/story/802554.html

417 Safety, Education, and Empowerment on YouTube, Google Public Policy Blog, Dec. 11, 2008, http://googlepublicpolicy.blogspot.com/2008/12/safety-education-and-empowerment-on.html

418 YouTube Community Guidelines, www.youtube.com/t/community_guidelines. Also see Comments of Google Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 7, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213673

419 http://help.youtube.com/support/youtube/bin/answer.py?hl=en&answer=147963

http://online.wsj.com/article_email/SB122947489283812469-lMyQjAxMDI4MjE5NzQxNzc0Wj.html

http://online.wsj.com/article_email/SB122947489283812469-lMyQjAxMDI4MjE5NzQxNzc0Wj.html

http://www.islandpacket.com/1482/story/802554.html

http://googlepublicpolicy.blogspot.com/2008/12/safety-education-and-empowerment-on.html

http://www.youtube.com/t/community_guidelines


http://help.youtube.com/support/youtube/bin/answer.py?hl=en&answer=147963



Exhibit 58: You Tube “Abuse & Safety Help Center”

The Importance of Website Labeling, Metadata Tagging, and Community Policing Many of the parental control tools mentioned throughout this study rely on labeling schemes and metadata tagging. As was explained in previous sections, metadata are machine-readable digital data that describe audiovisual media content. For example, MPAA movie ratings and ESRB video game ratings are digitally embedded within DVDs and video games so that other parental control tools (i.e., DVD players, computers, video game consoles, etc.) can then be used to screen out unwanted content. This same approach can work for Internet websites. Machine-readable content descriptors can be embedded within websites or online content to “tag” the sites or material. Once tagged, the sites or content can be automatically screened by other devices (i.e., filters, operating systems, etc.) regardless of how that content is accessed.

The Internet Content Rating Association (ICRA),420 which is part of the Family Online Safety Institute (FOSI),421 is helping to develop improved Internet filtering systems through comprehensive website labeling and metadata tagging. ICRA has created a wide variety of content descriptors that website operators can use to self-label their sites. ICRA does not rate Internet websites or the content itself. It leaves it to the content providers to do that using the ICRA labeling system.422 ICRA’s website provides additional detail about how the system works:

420

www.fosi.org/icra

421 www.fosi.org

422 For a description of the ICRA labels and the labeling process, see www.icra.org/label/generator


http://www.fosi.org/

http://www.icra.org/label/generator



The centerpiece of the organization is the descriptive vocabulary, often referred to as “the ICRA questionnaire.” Content providers check which of the elements in the questionnaire are present or absent from their websites. This then generates a small file containing the labels that is then linked to the content on one or more domains.…

The descriptive vocabulary was drawn up by an international panel and designed to be as neutral and objective as possible. It was revised in 2005 to enable easier application to a wide range of digital content, not just websites. Most of the items in the questionnaire allow the content provider to declare simply that a particular type of content is present or absent. The subjective decision about whether to allow access to that content is then made by the parent.423

Once these metadata labels have been embedded within websites, parents can freely download the ICRAplus filter from ICRA’s website and customize it to their specific needs / tastes.424 Or they can use unaffiliated filters or computer operating system controls to screen content by ICRA labels.

Other metadata labeling initiatives exist. The Association of Sites Advocating

Child Protection (ASACP), a nonprofit organization founded in 1996 by the adult entertainment industry to eliminate child pornography from the Internet.425 ASCAP also works to help parents prevent children from viewing age-inappropriate material online through its “Restricted to Adults” (RTA) website metadata labeling initiative.426 The RTA label is a general descriptor that all adult entertainment website operators are encouraged to use to help parents who wish to block all such content. Incidentally, websites using the RTA metadata tag can use it in conjunction with more descriptive ICRA metadata labels.

Microsoft also has an “Essential Metadata Initiative” that works in conjunction with a wide variety of organizations to develop digital metadata tags for media

423

See “About ICRA,” www.fosi.org/icra

424 www.icra.org/icraplus

425 www.asacp.org

426 www.rtalabel.org

Many of the parental control tools mentioned throughout this study

rely on labeling schemes and metadata tagging. This same

approach can work for Internet websites.








http://www.icra.org/icraplus

http://www.asacp.org/

http://www.rtalabel.org/



content.427 Specifically, Microsoft works closely with the Geneva, Switzerland-based International Standard Audiovisual Number International Agency (ISAN-IA), which operates the International Standard Audiovisual Number (ISAN). ISAN is a widely recognized, global content labeling system for digital audiovisual material.428 Although it is generally known as a system to help content creators manage their intellectual property rights, ISAN tags can also be useful in identifying many other attributes of the underlying content in question. Specifically, content rating and labeling information can be embedded within the ISAN tag. Microsoft products such as Vista and Internet Explorer can read ISAN metadata tags and then filter accordingly.429 And the motion picture industry is using ISAN tags to better identify its content, and rating information from various countries is included in those tags.430 According to Patrick Attallah, ISAN Managing Director, as of April 2007, the ISAN identification and metadata system supported over 90 different content-specific tags and more than 50 worldwide rating systems in over 35 languages.431 Metadata tagging can also be done by average users for a great deal of user-generated content.432 On popular websites like YouTube, Flickr, MySpace, and others, individuals can label much of their content with various descriptors. And these and other sites also allow readers or viewers to tag the content created or posted by others. Most sites also allow users to flag inappropriate or content or abusive communications. Website operators can then deal with the offending content or individuals.433

427

“International Organization Licenses Microsoft’s New Multicolor Bar Code Technology for Identifying Audiovisual Works,” Microsoft Corporation, Press Release, April 16, 2007, www.microsoft.com/Presspass/press/2007/apr07/04-16MSBarCodePR.mspx

428 www.isan.org

429 Kevin J. Comerford & Michael A. Dolan, Microsoft Corporation, ISAN Implementation in Windows Media Technologies, May 2006, www.isan.org/docs/ISAN%20Implementation%20in%20WindowsMedia%20May%202006.pdf

430 Motion Picture Association of America, Audiovisual Works Identification for the Motion Picture Studio: Conceptual, Operational, and Technical, 2007.

431 E-mail conversation on April 17, 2007, on record with author.

432 Dan Farber, The Next Big Thing: User-Contributed Metadata, ZD Net.com, Oct. 29, 2007, http://blogs.zdnet.com/BTL/?p=6779&tag=nl.e550

433 This is how the process works at YouTube.com: “Flagged videos are reviewed for compliance with the guidelines 24 hours a day, seven days a week. Users can also contact YouTube directly with privacy, harassment, or bullying complaints through the Help & Safety Tool. The Help & Safety Tool lets users report concerns to the YouTube team, block comments from specific other users and disable the video comments feature on videos. Users who repeatedly violate guidelines have their accounts terminated.” Comments of Google Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 7, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213673

http://www.microsoft.com/Presspass/press/2007/apr07/04-16MSBarCodePR.mspx

http://www.isan.org/

http://www.isan.org/docs/ISAN%20Implementation%20in%20WindowsMedia%20May%202006.pdf

http://blogs.zdnet.com/BTL/?p=6779&tag=nl.e550




Internet and Computing Tips for Parents Place computers in an area of the home where you can keep an eye on what

your kids are doing.

Teach your children basic etiquette as they start to use more interactive and online services, such as e-mail, blogs, and instant messaging. (See Section IIC above for details).

Do not allow pre-teens to go into chat rooms or on social networking sites unsupervised, if at all. Talk to teenagers about safe online interactions and proper behavior.

Use a “layered” approach to online child protection that involves ISP-integrated filters or independent filtering software, monitoring and time management tools, “safe search” search engine controls, and other tools included in your computer’s operating system or web browser. Contact your ISP or software vendor for assistance in installing Internet controls and make sure they are set to update automatically.

Begin your search for these tools, and collect more helpful tips about online monitoring, by visiting helpful sites such as iKeepSafe.org, GetNetWise.org, StaySafe.org, NetSmartz.org, WiredSafety.org, and the many others listed in this chapter.

Enable Internet controls in other media devices (such as gaming consoles or cell phones) if those devices allow online access.



IV. The Importance of Media Literacy and Consumer Education

As stressed from the outset, while tools and technologies are important and have their place, education (in the broadest sense of the word) must serve as the foundation of child safety efforts. Toward that end, this chapter will examine the importance of various educational strategies and initiatives. A. Why Media Literacy Is Important

Everyone understands what is meant by literacy. It’s about being able to read and write, of course. But more importantly, it is about comprehension and critical thinking skills. To be “media literate,” therefore, is to apply such skills when consuming media. It means we can effectively analyze, comprehend, and critique the media we consume. “To be a functioning adult in a mediated society,” notes a report from the Center for Media Literacy, “one needs to be able to distinguish between different media forms and know how to ask basic questions about everything we watch, read, or hear.”434 Those questions include:

What message or values are they trying to convey here?

How was this made? Who was behind it?

Is this fact or fiction? Fantasy or reality?

Is there another perspective I should seek out on this issue?

Could the story have been told or reported differently?

What facts or values were left out?

Where can I find the missing information or perspectives?

How would others feel about this?

Are they trying to sell me something? Is it really right for me?

Is there something better I could be doing with my time?

Some of these critical thinking skills come to us naturally. Some are instilled by parents, but perhaps not regularly enough. “Simple questions about the media can start even at the toddler stage,” argue Center for Media Literacy scholars. This brings us back the excellent advice of the National Research Council blue-ribbon panel: “teaching a child to swim—and when to avoid pools—is a far safer approach than relying on locks, fences, and alarms to prevent him or her from drowning.”435

434

Elizabeth Thoman & Tessa Jolls, Center for Media Literacy, Literacy for the 21st

Century: An Overview and Orientation Guide to Media Literacy Education, 2005, at 10, www.medialit.org/reading_room/article540.html

435 Computer Science and Telecommunications Board, National Research Council, Youth, Pornography, and the Internet (Washington, DC: National Academy Press, 2002), at 187.

http://www.medialit.org/reading_room/article540.html



B. Promoting Media Literacy and Consumer Education

(1) In the Classroom: Unfortunately, it is clear that not nearly enough media literacy instruction is being done within America’s educational process at any level. For the most part, media literacy is not routinely integrated into the curricula at elementary school, secondary school, high school, or college. Michael Kaiser, Executive Director of the National Cyber Security Alliance, notes that, “in the majority of K-12 schools across the country, including many in California, comprehensive cybereducation is not part of the curriculum. Today, just five states have mandated Internet safety be taught to K-12 students. Only 25 percent of educators, surveyed for a recent National Cyber Security Alliance study, felt prepared to teach basic online safety and security principles.” 436

Exhibit 59: Virginia’s “Guidelines and Resources for Internet Safety in Schools”

This situation must be reversed, and it wouldn’t take much to make it happen. After all, these are simple principles. These lessons could be drilled into children from a young age as part of other routine studies. And beyond basic media literacy, extensive Internet safety training should also be part of the mix. In September 2006, the Commonwealth of Virginia produced an outstanding report entitled “Guidelines and Resources for Internet Safety in Schools” that can serve as model legislation for other states in this regard.437 The text of the enabling legislation is shown below.438

436

Michael Kaiser, California Schools Need to Start Teaching Internet Security to Kids, San Jose Mercury News, April 26, 2009, http://www.mercurynews.com/opinion/ci_12205836?nclick_check=1

437 Guidelines and Resources for Internet Safety in Schools, Commonwealth of Virginia, Sept. 2006, www.doe.virginia.gov/VDOE/Technology/OET/internet-safety-guidelines-resources.pdf. The Washington Post discussed the rollout of the new safety plan in a May 2008 front-page article: Theresa

http://www.mercurynews.com/opinion/ci_12205836?nclick_check=1

http://www.doe.virginia.gov/VDOE/Technology/OET/internet-safety-guidelines-resources.pdf



Exhibit 60: Virginia’s Model Bill for Internet Safety Instruction

VIRGINIA ACTS OF ASSEMBLY An Act to amend and reenact § 22.1-70.2 of the Code of Virginia, relating to Internet safety instruction in

schools. [H 58] Approved. Be it enacted by the General Assembly of Virginia: 1. That § 22.1-70.2 of the Code of Virginia is amended and reenacted as follows: § 22.1-70.2 Acceptable Internet use policies for public and private schools. A. Every two years, each division superintendent shall file with the Superintendent of Public Instruction an acceptable use policy, approved by the local school board, for the international network of computer systems commonly known as the Internet. At a minimum, the policy shall contain provisions that:

(i) are designed to prohibit use by division employees and students of the division's computer equipment and communications services for sending, receiving, viewing, or downloading illegal material via the Internet;

(ii) seek to prevent access by students to material that the school division deems to be harmful to juveniles as defined in § 18.2-390;

(iii) select a technology for the division's computers having Internet access to filter or block Internet access through such computers to child pornography as set out in § 18.2-374.1:1 and obscenity as defined in § 18.2-372; and

(iv) establish appropriate measures to be taken against persons who violate the policy; and (v) include a component on Internet safety for students that is integrated in a division's instructional program. The

policy may include such other terms, conditions, and requirements as deemed appropriate, such as requiring written parental authorization for Internet use by juveniles or differentiating acceptable uses among elementary, middle, and high school students. B. The superintendent shall take such steps as he deems appropriate to implement and enforce the division's policy. C. On or before December 1, 2000, and biennially thereafter, the Superintendent of Public Instruction shall submit a report to the Chairmen of the House Committee on Education, the House Committee on Science and Technology, and the Senate Committee on Education and Health which summarizes the acceptable use policies filed with the Superintendent pursuant to this section and the status thereof. D. In addition to the foregoing requirements regarding public school Internet use policies, the principal or other chief administrator of any private school that satisfies the compulsory school attendance law pursuant to § 22.1-254 and accepts federal funds for Internet access shall select a technology for its computers having Internet access to filter or block Internet access through such computers to child pornography as set out in § 18.2-374.1:1 and obscenity as defined in § 18.2-372. E. The Superintendent of Public Instruction shall issue guidelines to school divisions regarding instructional programs related to Internet Safety. 2. That within 45 days of the enactment of this act, the Superintendent of Public Instruction shall issue a superintendent's memorandum advising school divisions of the provisions in this act and encourage cooperation with local law enforcement agencies in its implementation.

State and local officials need to follow the road map outlined by Virginia and

begin integrating media literacy and Internet safety lessons into educational curricula at every level. Librarians need to be trained to play a role, too. And funding needs to be provided for all those efforts.

Vargas, “Virginia Tired to Ensure Students’ Safety in Cybersapce,” Washington Post, May 3, 2008, at A1, www.washingtonpost.com/wp-dyn/content/article/2008/05/02/AR2008050203831.html?sub=AR

438 http://leg1.state.va.us/cgi-bin/legp504.exe?061+ful+HB58ER

http://www.washingtonpost.com/wp-dyn/content/article/2008/05/02/AR2008050203831.html?sub=AR

http://leg1.state.va.us/cgi-bin/legp504.exe?061+ful+HB58ER



Exhibit 61: Media Literacy Organizations or Efforts

Action Coalition for Media Education (www.acmecoalition.org)

Cable in the Classroom (www.ciconline.org)

Center for Media Literacy (www.medialit.org)

Children and the Media [a PBS project] (www.pbs.org/parents/childrenandmedia)

Common Sense Media (http://www.commonsensemedia.org/digital-citizenship)

Media Awareness Network [Canada] (www.media-awareness.ca/english/corporate/about_us/index.cfm)

Media Literacy Clearinghouse (www.frankwbaker.com)

Media Education Foundation (www.mediaed.org)

Media Literacy Online Project (http://interact.uoregon.edu/medialit/MLR/home)

National Association for Media Literacy Education (www.AMLAinfo.org)

National Telemedia Council (www.nationaltelemediacouncil.org)

National PTA (www.pta.org/pr_category_details_1117232399312.html)

Project Look Sharp (www.ithaca.edu/looksharp)

Many other media literacy organizations and efforts exist that can assist in these

endeavors. These organizations and efforts are summarized in a 2003 report by Marjorie Heins and Christina Cho of the Free Expression Policy Project (FEPP) entitled, “Media Literacy: An Alternative to Censorship.”439

A few of these efforts deserve special recognition. “Cable in the Classroom” (CIC)

is a media literacy initiative sponsored by the National Cable and Telecommunications Association (NCTA), the cable industry’s trade association.440 It serves as a model for what other companies or industries could do if they wanted to get more serious about promoting media education. Started in 1989, the Cable in the Classroom program’s mission is “to foster the use of cable content and technology to expand and enhance learning for children and youth nationwide.”441 CIC accomplishes this mission by providing video and data connections to schools and libraries, providing access to vast archives of educational video content and enriching cable programming, and providing other learning materials (including a magazine and newsletter) to educators, parents, and children. CIC also offers helpful

439

Marjorie Heins & Christina Cho, Free Expression Policy Project, Media Literacy: An Alternative to Censorship, 2003, www.fepproject.org/policyreports/medialiteracy.html

440 www.ncta.com/ContentView.aspx?contentid=2695

441 Cable in the Classroom, Frequently Asked Questions, www.ciconline.org/faq

Government officials at the federal, state and local level should work together to devise media literacy

campaigns focused on online safety, understanding the existing

rating systems, how to use parental controls, and so on.

Government officials at the federal,

state and local level should work together to devise media literacy


rating systems, how to use parental controls, and so on.

Government officials at the federal,

state and local level should work together to devise media literacy


http://www.acmecoalition.org/

http://www.ciconline.org/

http://www.medialit.org/

http://www.pbs.org/parents/childrenandmedia

http://www.commonsensemedia.org/digital-citizenship

http://www.media-awareness.ca/english/corporate/about_us/index.cfm

http://www.frankwbaker.com/

http://www.mediaed.org/

http://interact.uoregon.edu/medialit/MLR/home

http://www.amlainfo.org/

http://www.nationaltelemediacouncil.org/

http://www.pta.org/pr_category_details_1117232399312.html

http://www.ithaca.edu/looksharp

http://www.fepproject.org/policyreports/medialiteracy.html

http://www.ncta.com/ContentView.aspx?contentId=2695

http://www.ciconline.org/faq



parenting tips on its website and in its printed materials, such as “Ten Ways You Can Use Television Actively with Your Children,”442 “Thinking Critically about Media: Schools and Families in Partnership,”443 and “Navigating the Children’s Media Landscape—A Parent’s and Caregiver’s Guide.”444 CIC also offers schools and parents a downloadable “Recording Highlights Calendar,” which notifies them when educational and enriching programming will be aired if they want to record it.445 The calendar breaks down programming into several categories, including: arts, English language arts, history, languages, math, preschool, science / health, social and personal development, and social studies.

Exhibit 62: NCTA’s “Cable in the Classroom”

The Center for Media Literacy (CML) also deserves special recognition for its excellent media literacy kits and orientation guides.446 Its report Literacy for the 21st Century: An Overview and Orientation Guide to Media Literacy Education, which was quoted in the introduction to this section, is probably the best layman’s overview of

442

www.ciconline.org/parenttips

443 www.ciconline.org/thinkingcritically

444 www.ciconline.org/parentsguide

445 www.ciconline.org/monthlycalendar

446 www.medialit.org

http://www.ciconline.org/parenttips

http://www.ciconline.org/thinkingcritically

http://www.ciconline.org/parentsguide

http://www.ciconline.org/monthlycalendar

http://www.medialit.org/



media literacy available today.447 CML’s Media Lit Kit offers a step-by-step guide to integrating media literacy skills at every education level, from pre-K to college.448

Finally, Common Sense Media launched a major media literacy campaign in the

summer of 2009 with the release of its report, Digital Literacy and Citizenship in the 21st Century: Educating, Empowering, and Protecting America's Kids.449 The organization also created an impressive “Digital Citizenship” website to accompany the effort.450 Their white paper outlined the “essential components of Digital Literacy and Citizenship” and “frame[d] the ways that they prepare children to learn and grow in the 21st century” through the following four “Strategies for Teaching Digital Literacy and Citizenship”:

1. Redesign education to include Digital Literacy and Citizenship in every school in

America.

2. Disseminate a basic curriculum that defines the standards of ethical behavior on

digital platforms – for students, parents, and educators.

3. Educate and empower teachers so that they can understand and teach Digital

Literacy and Citizenship.

4. Educate and empower parents about technology and important behavioral

guidelines involving the use of digital media.

(2) Public and Parental Awareness Campaigns: Beyond classroom media

literacy efforts, government could undertake public awareness campaigns. Government officials at the federal, state, and local level should work together to devise media literacy campaigns focused on online safety, understanding the existing rating systems, how to use parental controls, and so on. These campaigns should include broadcast (radio and TV) ads, Internet websites and advertising, and promotional posters and brochures that could be distributed at

447

Elizabeth Thoman & Tessa Jolls, Center for Media Literacy, Literacy for the 21st

Century: An Overview & Orientation Guide to Media Literacy Education, 2005, at 10, www.medialit.org/reading_room/article540.html

448 www.medialit.org/bp_mlk.html

449 Common Sense Media, Digital Literacy and Citizenship in the 21st Century: Educating, Empowering, and Protecting America's Kids, June 2009, www.commonsensemedia.org/sites/default/files/CSM_digital_policy.pdf

450 www.commonsensemedia.org/digital-citizenship

Government efforts to promote awareness have been diffuse and

largely uncoordinated among various agencies and programs.

Government efforts to promote

awareness have been diffuse and largely uncoordinated among

various agencies and programs.

Government efforts to promote awareness have been diffuse and

largely uncoordinated among various agencies and programs.


awareness have been diffuse and largely uncoordinated among

various agencies and programs.


http://www.medialit.org/reading_room/article540.html

http://www.medialit.org/bp_mlk.html

http://www.commonsensemedia.org/sites/default/files/CSM_digital_policy.pdf

http://www.commonsensemedia.org/digital-citizenship



schools and government institutions. Government has undertaken (or lent its support to) such public awareness campaigns to address other concerns in the past and had a great deal of success, including the following:

Forest fire prevention: Since the mid-1940s, the federal government has used the Smokey the Bear mascot to educate the public about the dangers of forest fires and wildfires.451

Anti-littering and Land stewardship: The U.S. Forest Service began a widespread “Give a Hoot, Don’t Pollute” anti-littering campaign in the early 1970s that featured the mascot Woodsy Owl. In recent years, the campaign has expanded its land stewardship mission and adopted a new slogan: “Lend a Hand—Care for the Land.”452

Crime prevention: Beginning in the early 1980s, the National Crime Prevention Council (NCPC) developed its popular “McGruff the Crime Dog” campaign to assist law enforcement agencies seeking to deter crime or build awareness about criminal activities.453 The McGruff campaign, which included the “Take a Bite Out of Crime” motto, offers publications and teaching materials on a variety of topics; programs that can be implemented in communities and schools, local, regional, and national training programs; public service announcements broadcast nationwide starring McGruff the Crime Dog; and support for a national coalition of crime prevention practitioners.454 The NCPC reports that “now 25 years after McGruff’s first TV appearance, more than 75 percent of children recognize McGruff and over 4,000 law enforcement agencies own a McGruff suit.”455

Physical fitness: The President’s Council on Physical Fitness promotes physical fitness and healthy living for citizens of all ages, but especially among children and teens. The program, which celebrated its 50th anniversary in 2006, circulates a wide variety of promotional information including classroom materials. Two prominent websites promote the Council’s efforts: www.presidentschallenge.org and www.fitness.gov. To further boost the visibility of the program and its fitness agenda, the Council has recruited well-known athletes to serve as chair or spokespersons: actor and current California Gov. Arnold Schwarzenegger, Olympian Florence Griffith Joyner, baseball player Stan Musial, college basketball coach Al McGuire, professional football coach George Allen, and professional football player Lynn Swann.

451

See www.smokeybear.com and http://en.wikipedia.org/wiki/Smokey_the_Bear

452 http://en.wikipedia.org/wiki/Woodsy_Owl

453 http://mcgruff.org

454 www.ncpc.org/about

455 www.ncpc.org/about

http://www.presidentschallenge.org/

http://www.fitness.gov/

http://www.smokeybear.com/

http://en.wikipedia.org/wiki/Smokey_the_Bear

http://en.wikipedia.org/wiki/Woodsy_Owl

http://mcgruff.org/

http://www.ncpc.org/about

http://www.ncpc.org/about



Seat-belt and air-bag safety: Perhaps the most successful campaign has been the efforts of the U.S. Department of Transportation’s National Highway Traffic Safety Administration,456 numerous other state and local agencies, and many nonprofit organizations457 to educate the public about the benefits of wearing seat belts while in automobiles. Of course, these efforts were also accompanied by enforcement efforts, such as the “Click It or Ticket” warnings used in many states. Regardless, the educational component of these campaigns clearly helped communicate the importance of seat belts to the general public.458 The effort was later expanded to promote air bags in automobiles.

Government officials should seek to emulate these examples if they want to construct a serious public awareness campaign about parental controls and online child protection efforts. Currently, however, government efforts to promote awareness have been diffuse and largely uncoordinated among various agencies and programs. One notable exception at the federal level has been the OnGuardOnline.gov website, which “provides practical tips from the federal government and the technology industry to help you be on guard against Internet fraud, secure your computer, and protect your personal information.”459 Six federal agencies collaborated to create the website.460 Although the initiative does not focus exclusively on parental controls or online child protection, it does offer some helpful tips on that front. The effort includes a “Stop-Think-Click” promotion that recommends “Seven Practices for Safer Computing.” The Federal Bureau of Investigation offers similar tips on its “Parent’s Guide to Internet Safety” website.461 Again, however, these efforts are largely uncoordinated and receive very little promotion from federal agencies or congressional lawmakers.462

456

www.nhtsa.dot.gov/portal/site/nhtsa/menuitem.cda13865569778598fcb6010dba046a0

457 The National Safety Council, in particular, has played a major role in these educational efforts.

458 U.S. Department of Transportation, National Highway Traffic Safety Administration, Seat Belt Use in 2003 – Demographic Characteristics, DOT HS 809 729, May 2004, www.nhtsa.dot.gov/people/injury/airbags/809729.pdf

459 http://onguardonline.gov/index.html

460 They are the Federal Trade Commission, the Department of Commerce, the Securities and Exchange Commission, the U.S. Postal Inspection Service, the Office of Justice Programs, and the Department of Homeland Security.

461 www.fbi.gov/publications/pguide/pguidee.htm

462 U.S. officials should look at the excellent online safety metasites that other nations have developed. The Australian government has established www.netalert.gov.au, which serves as a model that other governments could seek to emulate. Europe’s www.BeSafeOnline.org is another excellent online safety meta-site.

http://www.nhtsa.dot.gov/portal/site/nhtsa/menuitem.cda13865569778598fcb6010dba046a0

http://www.nhtsa.dot.gov/people/injury/airbags/809729.pdf

http://onguardonline.gov/index.html

http://www.fbi.gov/publications/pguide/pguidee.htm

http://www.netalert.gov.au/

http://www.besafeonline.org/



Exhibit 63: The Federal Government’s “OnGuardOnline.gov” Website

If policymakers want to encourage more widespread awareness and adoption of parental control tools and online child safety methods, they will need to expand their current efforts considerably. As was the case with the public awareness campaigns discussed above, in addition to websites and online tips, a serious awareness campaign will need a variety of public service announcements and outreach efforts, brochures and banners, and other promotional campaigns. As the Smart Television Alliance told the FCC in a May 2009 filing:

The websites of the White House, the Department of Education, and the Commerce Department’s National Telecommunications and Information Administration (“NTIA”) should all have pages, similar to the FCC’s, that explain control technologies and offer links to representative sources of guidance on programming content. At a minimum, their websites should link to the FCC webpage intended to accomplish the same thing.



As additional outreach, Senators and Members of the House should communicate with their constituents on this issue in order to educate them, and the FCC’s report to Congress should note that it would welcome this additional support. Members of Congress would garner positive publicity and favorable constituent reaction if their own websites flagged these issues and solutions, and provided helpful guidance and links to sources of information about consumer electronic solutions for controlling programming, as well as suggestions on quality content and media literacy.463

Perhaps most importantly, such a campaign must include state and local officials and agencies that can communicate the messages at the local level through various institutions (schools, libraries, law enforcement agencies, civic clubs, etc.) as well as nonprofit organizations, and even corporations and trade associations can assist in the effort. Such an approach was embodied in two bills introduced in the 110th Congress in August 2007, which seek to better coordinate and expand federal online safety efforts.464 Specifically, the bills propose the creation of a nationwide public awareness and educational campaign about online safety, something that is very much needed to supplement ongoing private efforts.

The first of those legislative measures, S. 1965, the “Protecting Children in the

21st Century Act,” was introduced on August 2nd by Senator Ted Stevens (R-Alaska), Vice Chairman of the Senate Commerce Committee and Committee Chairman Daniel Inouye (D-Hawaii). The House measure, H.R. 3461, the “Safeguarding America’s Families by Enhancing and Reorganizing New and Efficient Technologies Act of 2006,” or “SAFER NET” Act, was introduced on August 4th by Rep. Melissa Bean (D-IL). (Rep. Bean’s bill was a reworked version of a similar measure that she had introduced earlier).465

In October 2008, these measures were consolidated and passed into law as part of the S. 1492, the “Broadband Data Services Improvement Act.”466 Title II of that bill

463

Reply Comments of The Smart Television Alliance, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, May 18, 2009, pg. 4, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520216918

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

465 See Adam Thierer, The Progress & Freedom Foundation, Rep. Bean’s ‘SAFER Net Act’: An Education-Based Approach to Online Child Safety, Progress on Point 14.3, Feb. 22, 2007, www.pff.org/issues-pubs/pops/pop14.3beanbillinternetsafety.pdf

466 Broadband Data Services Improvement Act of 2008, Public Law 110-385, 110

th Congress.


http://www.pff.org/issues-pubs/ps/2007/ps3.10safetyeducationbills.pdf


http://www.pff.org/issues-pubs/pops/pop14.3beanbillinternetsafety.pdf




specified that the Federal Trade Commission (FTC) “carry out a nationwide program to increase public awareness and provide education” to promote safer Internet use. “The program shall utilize existing resources and efforts of the Federal Government, State and local governments, nonprofit organizations, private technology and financial companies, Internet service providers, World Wide Web-based resources, and other appropriate entities, that includes—

1. identifying, promoting, and encouraging best practices for Internet safety;

2. establishing and carrying out a national outreach and education campaign

regarding Internet safety utilizing various media and Internet-based resources;

3. facilitating access to, and the exchange of, information regarding Internet safety

to promote up to-date knowledge regarding current issues; and,

4. facilitating access to Internet safety education and public awareness efforts the

Commission considers appropriate by States, units of local government, schools,

police departments, nonprofit organizations, and other appropriate entities.”

Importantly, the measure also included a requirement that the National Telecommunications and Information Administration (NTIA) within the Department of Commerce establish an Online Safety and Technology Working Group “comprised of representatives of relevant sectors of the business community, public interest groups, and other appropriate groups and Federal agencies to review and evaluate”:467

1. the status of industry efforts to promote online safety through educational

efforts, parental control technology, blocking and filtering software, age-

appropriate labels for content or other technologies or initiatives designed to

promote a safe online environment for children;

2. the status of industry efforts to promote online safety among providers of

electronic communications services and remote computing services by reporting

apparent child pornography under section 13032 of title 42, United States Code,

including any obstacles to such reporting;

3. the practices of electronic communications service providers and remote

computing service providers related to record retention in connection with

crimes against children; and

467

Full disclosure: I was appointed a member of this working group in April 2009. http://pff.org/news/news/2009/040609-NTIA-working-group.html

http://pff.org/news/news/2009/040609-NTIA-working-group.html



4. the development of technologies to help parents shield their children from

inappropriate material on the Internet.

This task force is required to issue a report of its findings back to the Senate Commerce Committee within one year of convening. These measures represent an admirable attempt to better coordinate and expand Internet safety education.468 Importantly, there is no reason that these measures couldn’t be expanded to highlight other parental control technologies and methods for other types of media besides the Internet.

Such education-based legislative approaches have the added benefit of remaining within the boundaries of the Constitution and the First Amendment because government would not be seeking to restrict speech, but simply to better inform and empower parents regarding the parental control tools and techniques already at their disposal.469 The courts have shown themselves to be amenable to such educational efforts, and not just in the case of online safety. For example, in a November 2006 decision which struck down an Illinois law that sought to regulate video game sales to minors, the Seventh Circuit Court of Appeals noted that parents are already actively involved in making decisions about the games their children buy. Noting how parents are involved in well over 83 percent of their children’s video game purchases, the court went on to argue that:

If Illinois passed legislation which increased awareness of the ESRB [Entertainment Software Rating Board voluntary rating] system, perhaps through a wide media campaign, the already-high rate of parental involvement could only rise. Nothing in the record convinces us that this proposal would not be at least as effective as the proposed speech restrictions.470

468

“This act is a sign that Congress is beginning to get it right when it comes to protecting kids online while not stepping over legitimate free expression rights of adult internet users.” Stephen Balkam, “Rediscovering Online Safety,” The Huffington Post, Oct. 10, 2008, www.huffingtonpost.com/stephen-balkam/rediscovering-online-safe_b_133753.html

469 “Although government’s ability to regulate content may be weak, its ability to promote positive programming and media research is not. Government at all levels should fund the creation and evaluation of positive media initiatives such as public service campaigns to reduce risky behaviors and studies about educational programs that explore innovative uses of media.” Jeanne Brooks-Gunn and Elisabeth Hirschhorn Donahue, “Introducing the Issue,” in Children and Electronic Media, The Future of Children, Vol. 18, No. 1, Spring 2008, at 8.

470 Entertainment Software Association v. Blagojevich, 7th Cir. Court of Appeals, WL 3392078, Nov. 27, 2006, at 16, www.jenner.com/files/tbl_s18News/RelatedDocuments147/2652/Seventh_Circuit_ILVideoGame.pdf

http://www.huffingtonpost.com/stephen-balkam/rediscovering-online-safe_b_133753.html

http://www.huffingtonpost.com/stephen-balkam/rediscovering-online-safe_b_133753.html

http://www.jenner.com/files/tbl_s18News/RelatedDocuments147/2652/Seventh_Circuit_ILVideoGame.pdf



This is why education, not regulation, represents the superior approach to address content concerns and online child safety. If Congress enacts more regulations aimed at banning certain types of websites or online content, those measures will be bogged down in the courts for years to come. For example, the Child Online Protection Act (COPA) was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites. After a decade-long series of court battles about the constitutionality of the measure, in January 2009, the U.S. Supreme Court rejected the government’s latest request to revive COPA, meaning it is likely dead.471 If all the money that has been spent litigating this case had instead been spent on media literacy and online safety campaigns, it could have produced concrete, lasting results. C. Private or Industry-Led Consumer Education Efforts

It is worth noting that several major private or industry-led consumer education

efforts are under way to help families learn more about parental controls, ratings systems, and online child safety efforts. For example:

Television / Broadcasting: TV Watch, a coalition of 27 prominent individuals and organizations representing more than four million Americans, sponsors initiatives such as the “1-2-3 Safe TV” tool kit for parents.472 The group circulates materials that provide parents easy-to-understand primers on how to safeguard their children against objectionable content on television.473 The effort was spearheaded by media operators such as CBS Corporation, News Corp., and NBC Universal, but also includes groups as diverse as the American Conservative Union, the Black Filmmakers Foundation, Center for Creative Voices in Media, the Creative Coalition, the Minority Media and Telecommunications Council, and the U.S. Chamber of Commerce.474

Cable Television: The National Cable and Telecommunications Association (NCTA) sponsors a $250 million public service campaign called “Cable Puts You in

471

See Adam Thierer, The Progress & Freedom Foundation, Closing the Book on COPA, PFF Blog, Jan. 21, 2009, http://blog.pff.org/archives/2009/01/closing_the_boo.html

472 www.televisionwatch.org

473 Safe TV. Easy as 1-2-3: The TV Watch Guide to the TV Ratings and Parental Controls, TV Watch, http://www.televisionwatch.org/HelpForParents/default.html

474 Full disclosure: I serve on the advisory board of TV Watch.

Such an education-based approach has the added benefit

of remaining within the boundaries of the Constitution

and the First Amendment.



and the First Amendment because government would not

be seeking to restrict speech, but simply to better inform and empower parents regarding the

parental control tools and techniques already at their

disposal.



and the First Amendment because government would not

be seeking to restrict speech, but simply to better inform and empower parents regarding the

parental control tools and techniques already at their

disposal.


http://blog.pff.org/archives/2009/01/closing_the_boo.html


http://www.televisionwatch.org/HelpForParents/default.html



Control.”475 As part of the effort, the industry airs numerous educational ads and distributes materials to subscribers. These materials are also made available to consumers via in-store displays at retailers such as Best Buy and Circuit City. The effort also includes an education website called Control Your TV476 that offers a variety of educational links and videos showing parents how to block access to certain channels or programs that they might find objectionable. The cable industry also sponsors the impressive Cable in the Classroom media literacy program discussed in the previous section.

Television / Cross-Media: At a January 19, 2006, Senate Commerce Committee hearing, Jack Valenti, the late CEO of the Motion Picture Association of America (MPAA), announced that all media companies that “make and dispatch visual programming” were launching a joint 18-month marketing campaign “to inform and persuade the American people that they have the power” to control the content that appears on their television screens.477

This unprecedented $300 million campaign included participation from the Consumer Electronics Association (CEA); the National Association of Broadcasters (NAB); MPAA; NCTA; Viacom; Time Warner; television broadcast networks ABC, CBS, Fox, and NBC Universal; and satellite TV providers DIRECTV and EchoStar’s Dish Network. The Ad Council and various advertising agencies assisted in the effort to help craft “simple messages” that were then broadcast and cablecast by all these media providers over at least an 18-month period.478 The televised ads began airing on local broadcast stations and the top 100 cable systems on July 26, 2006.479 Parents were also able to see the ads, and find a great deal of other useful information, on an interactive Internet website that came out of this effort called “The TV Boss.”480

Cross-Media: The Pause-Parent-Play website offers an excellent compendium of websites and services parents can use to learn more about the media their children might want to see, hear, or play.481 The effort is sponsored by a diverse coalition of companies and associations, including: Wal-Mart, the Girl Scouts, the

475

http://controlyourtv.org/faq.php

476 www.controlyourtv.org

477 Jack Valenti, A Plan to Communicate to Parents That They Have the Power to Control All TV Programs in Their Homes, Testimony before the Senate Commerce Committee, Jan. 19, 2006, http://commerce.senate.gov/pdf/Jack%20Valenti%20Testimony.pdf

478 National Association of Broadcasters, Industries Unite in Unprecedented Effort to Educate Parents That They Have the Tools to Control TV Programming in Their Home, Press Release, Jan. 19, 2006.

479 Frank Ahrens, TV Industry Unites on Viewer Education, Washington Post, July 25, 2006, at D5; www.washingtonpost.com/wp-dyn/content/article/2006/07/24/AR2006072401197.html

480 www.thetvboss.org

481 http://pauseparentplay.org

http://controlyourtv.org/faq.php

http://www.controlyourtv.org/

http://commerce.senate.gov/pdf/Jack%20Valenti%20Testimony.pdf



http://pauseparentplay.org/



YMCA, Microsoft, Comcast, Time Warner, News Corp., the Electronic Software Association, Viacom, NBC Universal, MPAA, and the Recording Industry Association of America (RIAA). The coalition’s website features numerous links answering questions about how TV ratings and screening tools work (like the V-Chip and cable and satellite set-top boxes).482 The links provided on the Pause-Parent-Play website help parents better understand how to use these and other technologies. There is also a “Get the Facts” section on the site that offers detailed explanations of how many of the current rating systems work.483

Cross-Media: Take Parental Control is a public service website provided by Playboy Enterprises.484 It features parental control fact sheets for a wide variety of media, including: television, cable, cell phones, video games, and Internet surfing. The website also features a useful glossary of terms describing various technologies and parental control tools. Public service announcements are included as well.

Video Games: To supplement its other consumer awareness efforts described earlier, in November 2006 the Entertainment Software Rating Board (ESRB) announced an educational partnership with the Parents-Teacher Association (PTA) to “encourage and enable state and local PTAs to educate their community’s parents about the *ESRB+ ratings.”485 As part of this new educational campaign, 1.3 million brochures will be distributed to 26,000 PTAs nationwide in both English and Spanish. Additional online support and education are available on both the ESRB and PTA websites.486 In December 2006, the ESRB also launched a nationwide television PSA campaign that encourages parents to use the video game ratings when buying games for their children. The spots were introduced at an event featuring Senators Hillary Clinton and Joe Lieberman.487 The ESRB has also sponsored PSA campaigns featuring state attorneys general Mark Shurtleff of Utah and Thurbert Baker of Georgia.

Internet: As mentioned in the section above on Internet tools, many helpful Net-filtering and safety technologies and services are highlighted on GetNetWise.org.488 This site is comprehensive public service website sponsored

482

http://pauseparentplay.org/see/index.php#tv

483 http://pauseparentplay.org/facts

484 http://takeparentalcontrol.org

485 Parent Teacher Association, PTA and ESRB Launch Nationwide Video Game Ratings Educational Partnership, Press Release, Nov. 15, 2006, www.pta.org/ne_press_release_detail_1163547309281.html

486 www.esrb.org/about/pta_partnership.jsp

487 Entertainment Software Rating Board, Senators Hillary Rodham Clinton and Joe Lieberman Join ESRB to Launch Nationwide Video Game Ratings TV PSA Campaign, Press Release, Dec. 7, 2006, www.esrb.org/about/news/12072006.jsp

488 www.GetNetWise.org

http://pauseparentplay.org/see/index.php#tv

http://pauseparentplay.org/facts/

http://takeparentalcontrol.org/

http://www.pta.org/ne_press_release_detail_1163547309281.html

http://www.esrb.org/about/pta_partnership.jsp

http://www.esrb.org/about/news/12072006.jsp




by a wide array of Internet and computer companies, as well as a host of public interest organizations and parental and child activists. The GetNetWise website offers a comprehensive “Online Safety Guide” and lengthy inventory of “Tools for Families” that can be custom-tailored to the needs and values of individual families.489 Major corporate supporters include Dell, Microsoft, Verizon, Amazon.com, Yahoo!, AOL, AT&T, Comcast, Earthlink, Visa, Wells Fargo, and the RIAA. Key public interest organizations include the Center for Democracy and Technology, the American Library Association, the Children’s Partnership, People for the American Way Foundation, the National Consumers League, Net Family News,490 ProtectKids.com,491 SafeKids.com,492 and Wired Patrol.493 Of course, GetNetWise is not the only online safety website that corporations support or cosponsor.

Wireless: As mentioned earlier, CTIA has also developed an awareness campaign called “Get Wise about Wireless,” which “helps educate students about cell phone use and the responsible behaviors associated with using cell phones.”494 The program includes a variety of materials such as a teacher’s guide and a family take-home pamphlet about safe and courteous cell phone use.495 As part of this effort, CTIA also runs a student essay contest about sensible wireless use.496

D. A Voluntary Code of Conduct / Industry Pledge to Parents

The empowerment and education steps outlined in the preceding sections illustrate the impressive strides that industry and others have made to provide parents with the tools and information they need to protect their children from potentially objectionable content. However, more can be done by industry to tie these efforts together.

All modern media operators—broadcasters, cable and satellite operators, music providers, broadband providers, Internet service providers, search providers, web portals, social networking sites, game developers, online gaming services, and so on—need to take additional steps to show policymakers and the general public that they are

489

See http://kids.getnetwise.org/safetyguide and http://kids.getnetwise.org/tools

490 http://netfamilynews.org/index.shtml

491 http://protectkids.com

492 www.safekids.com

493 www.wiredsafety.org

494 www.wirelessfoundation.org/GetWise/index.cfm

495 See www.wirelessfoundation.org/GetWise/teachers_guide2007.pdf and www.wirelessfoundation.org/GetWise/family_takehome2007.pdf

496 www.wirelessfoundation.org/GetWise/contest.cfm

http://kids.getnetwise.org/safetyguide/

http://kids.getnetwise.org/tools/


http://protectkids.com/

http://www.safekids.com/

http://www.wiredsafety.org/

http://www.wirelessfoundation.org/GetWise/index.cfm

http://www.wirelessfoundation.org/GetWise/teachers_guide2007.pdf

http://www.wirelessfoundation.org/GetWise/family_takehome2007.pdf

http://www.wirelessfoundation.org/GetWise/contest.cfm



serious about addressing concerns about online safety and access to objectionable content. If companies and trade associations do not step up to the plate and meet this challenge soon—and in a collective fashion—calls will only grow louder for increased government oversight or regulation. One possibility that industry should consider is the adoption of a voluntary code of conduct.497 This code of conduct, or set of industry “best practices,” would be based on a straightforward set of principles and policies that could be universally adopted by the wide variety of operators mentioned above. These principles and policies, which could take the form of a pledge to parents and consumers, must also be workable throughout our new world of converged, cross-platform communications and media. The adjoining exhibit outlines the basic elements of this voluntary “pledge.” For such a code of conduct to gain traction and be taken seriously, it will require the leadership of major online companies, digital media providers, and their respective trade associations. Such commitments by these market leaders will help recruit smaller players while increasing credibility for the effort with policymakers, the public, and the press. Benchmarks will also be needed to evaluate the effectiveness of these efforts over time. Those evaluations can inform potential future adjustments to the voluntary code, especially as new services and technologies come online. Two important caveats are in order. First, unlike previous industry “codes”—such as those pushed on the movie and comic book industry by government officials a half century ago—this code would not seek to delimit acceptable forms of speech or expression by those adopting it. Rather, its purpose is to allow for the maximum amount of legal speech and expression, while providing users with the information and tools needed to block or curtail the flow of potentially objectionable media content in their lives. Information and education lie at the core of this effort, not censorship.

497

This was originally proposed in: Adam Thierer, The Progress & Freedom Foundation, Saving Online Free Speech: A Voluntary Code of Conduct for Internet Operators, Progress Snapshot 2.19, Aug. 2006, www.pff.org/issues-pubs/ps/2006/ps_2.19_conduct_net_ops.pdf




Exhibit 64: Digital Media Provider Voluntary Code of Conduct

We at (company or trade association name) pledge to take the following steps to help parents and all our customers or users create a better, safer online environment and modern media marketplace: Pledge 1: When feasible, we will offer voluntary ratings or labels to provide clear information about proprietary content. For certain types of proprietary content, we will attempt to offer ratings or labels that clearly designate the nature of the content on the website or in the product. We will use machine-readable metadata tagging whenever possible to allow rating or labeling systems to be fully automated by the end user and work seamlessly across platforms and products. And where applicable, we will provide clear notices of the ratings, labels, or other content descriptors on all content packaging or product and website promotions. Pledge #2: We will offer parental controls or filters to help families block or control objectionable content. We will offer Internet filters, set-top box controls, or other screening and blocking technologies to empower families to make decisions about the forms of content that are appropriate in their lives. Where applicable, we will also provide links or contact information for sites and services that provide additional assistance or types of controls. Pledge #3: We will provide reasonable assistance to law enforcement in its effort to root out online threats or predators. We will cooperate with law enforcement officials who are conducting investigations into online crimes. Within reasonable bounds, we will preserve data necessary to help law enforcement officials track potential online criminals. On our websites, we will offer a link to the National Center for Missing and Exploited Children’s (NCMEC) CyberTipline to allow users to report potential child pornography or abuse. Finally, when feasible, we will offer training assistance for law enforcement officials to help them better understand how to police and prosecute potential criminal activity online. Pledge #4: We will offer various forms of education for parents, consumers, and even children. On our website(s), we will provide clearly displayed links, buttons, or phone numbers (i.e., hotlines) for parental and child assistance. When possible, we will offer integrated “how-to” guides with all products or offer “out-of-the-box” setup guides to help users immediately enable parental controls and filters. We will also produce and widely circulate brochures or tip-sheets to help in this task. We will create or fund public service announcements or sponsor other parental and consumer education efforts to promote consumer awareness. Finally, we will craft clearly worded acceptable-use policies that lay out these policies and make it clear what responsibilities end users and parents must exercise for themselves and their own families.



Second, the creation of such a code would go a long way toward satisfying one of the leading criticisms of current industry policies or approaches: the lack of consistency or standardization. A voluntary code of conduct would have many similar elements and, hopefully, companies and trade associations might even work together to develop a common “look and feel” to their tools and systems. That being said, this code should not be considered a universal rating or filtering scheme that would replace all other systems. Ample room should remain for experimentation by those adopting such a code, especially for those who wish to provide more stringent controls to their users.

This process should not be viewed by industry actors as a burden, but rather as an opportunity to highlight the many steps each organization is already taking—or will commit to undertake in the near future—to address concerns about potentially objectionable media content and online child safety. By making a commitment to parents and consumers to help them get this job done in a unified and comprehensive manner, digital media providers and distributors will help head off the inevitable push for greater government involvement and regulation.

Some companies have already taken steps to implement such codes of conduct

for their industries:

Model #1: The cable industry’s “PointSmart, ClickSafe” initiative

In June 2007, the National Cable & Telecommunications Association (NCTA) announced that its members—which represent roughly 90 percent of all cable households nationwide—would adopt such an industry-wide code of conduct. Under the NCTA’s new initiative, which is called “Cable Puts You in Control: PointSmart, ClickSafe,” NCTA’s member companies “pledge to help parents, families, customers and consumers create a better, safer online media environment and foster a better understanding and working knowledge of the digital media landscape.”498 The NCTA members made a pledge to offer parents an unprecedented level of assistance to help parents keep their children safe online. The commitments are in line with the model code of conduct outlined above. Also, along with Common Sense Media and the Internet Keep Safe Coalition, NCTA hosted a well-attended online safety summit in

498

www.pointsmartclicksafe.org

All modern media operators need to take additional steps to show

policymakers and the general public that they are serious about addressing concerns about online

safety and access to objectionable content.


policymakers and the general public that they are serious about addressing concerns about access

to objectionable content.










http://www.pointsmartclicksafe.org/



Washington, DC in 2008, and then convened a task force of child safety experts to further study the issue.499 The working group concluded its work in July 2009 and its report is summarized in an appendix to this report (See Appendix: Review of Five Online Safety Task Forces.”)

The NCTA’s efforts are being coordinated online through an impressive website

(www.pointsmartclicksafe.org) that contains interactive tips, manuals, and public service announcements to assist and educate parents and children. The new effort complements two other important efforts that the cable industry has operated for several years and that were mentioned earlier: “Control Your TV.org”500 and “Cable in the Classroom.”501 The “Control Your TV” initiative and website coordinates the cable industry’s parental control efforts aimed at the video programming side of their business. And Cable in the Classroom is an impressive media literacy initiative that also provides broadband connectivity and educational programming to schools and libraries for classroom use.

Exhibit 65: NCTA’s “Point Smart. Click Safe” Website

The cable industry’s new code of conduct illustrates how online operators can take parental controls and online child protection to the next level. The first order of business was creating parental control tools and making them widely available. After

499

Full disclosure: I am a member of this task force.

500 http://controlyourtv.org

501 www.ncta.com/ContentView.aspx?contentid=2695


http://controlyourtv.org/

http://www.ncta.com/ContentView.aspx?contentId=2695



that, companies and trade associations need to concentrate on boosting awareness about those tools and making them even easier to use. That is what the NCTA is doing with its new initiative. In addition, the focus on consumer education and media literacy that pervades the cable pledge is vitally important. This new “PointSmart, ClickSafe” initiative, as well as the Cable in the Classroom project serve as models for what other companies or industries could do if they wanted to get more serious about promoting media literacy and online safety education.

Model #2: MySpace and Facebook “Key Principles for Social Networking Safety”

On January 14th, 2008, social networking website operator MySpace.com announced a joint effort with 49 state Attorneys General (AGs) aimed at better protecting children online.502 At a press conference in New York City, MySpace and the AGs unveiled a “Joint Statement on Key Principles of Social Networking Safety” involving expanded online safety tools, improved education efforts, and law enforcement cooperation.503 They also agreed to create an industry-wide Internet Safety Technical Task Force to study online safety tools, including a review of online identity authentication technology.504 (Facebook struck a similar agreement with the AGs in May 2008,505 although some of the details differed.506 The analysis below focuses on the particulars of the MySpace agreement.)

The agreement represented a major step forward for online safety. Indeed, many of the principles in the agreement could form a potential model code of conduct that other social networking sites could adopt. The agreement included the following “Principles of Social Networking” (as described in a MySpace press release)507:

502

Anne Barnard, MySpace Agrees to Lead Fight to Stop Sex Predators” New York Times, Jan. 15, 2008, www.nytimes.com/2008/01/15/us/15myspace.html?ref=us. Adam Thierer, The Progress & Freedom Foundation, The MySpace-AG Agreement: A Model Code of Conduct for Social Networking? Progress on Point 15.1, Jan. 2008, www.pff.org/issues-pubs/pops/pop15.1myspaceAGagreement.pdf


504 Full disclosure: I am a member of this task force.

505 Gina M. Scott, Facebook Attorneys General Announce Agreement to Make Site Safer for Kids, Government Technology, May 8, 2008, www.govtech.com/dc/articles/319429

506 The full text of Facebook-AG agreement can be found at: http://law.ga.gov/vgn/images/portal/cit_1210/33/63/113153056Facebook%20Agreement%20on%20design%20and%20functionality.pdf


http://www.nytimes.com/2008/01/15/us/15myspace.html?ref=us



http://www.govtech.com/dc/articles/319429

http://law.ga.gov/vgn/images/portal/cit_1210/33/63/113153056Facebook%20Agreement%20on%20design%20and%20functionality.pdf

http://law.ga.gov/vgn/images/portal/cit_1210/33/63/113153056Facebook%20Agreement%20on%20design%20and%20functionality.pdf




Site Design and Functionality: The Principles incorporate safety initiatives that MySpace has already implemented and initiatives it will work to implement in the coming months. Examples of safety features MySpace has in place include reviewing every image and video uploaded to the site, reviewing the content of Groups, making the profiles of 14 and 15 year old users automatically private and protecting them from being contacted by adults that they don’t already know in the physical world, and deleting registered sex offenders from MySpace. Examples of improvements MySpace will make include defaulting 16 and 17 year old users’ profiles to private and strengthening the technology that enforces the site’s minimum age of 14.

Education and Tools for Parents, Educators and Children. The Principles acknowledge that MySpace has already been devoting meaningful resources to Internet safety education including a new online safety public service announcement targeted at parents and free parental software that is under development. MySpace will explore the establishment of a children’s email registry that will empower parents to prevent their children from having access to MySpace or any other social networking site. In addition, under the Principles MySpace will increase its communications with consumers who report a complaint about inappropriate content or activity on the site.

Law Enforcement Cooperation. The Attorneys General view MySpace’s cooperation with law enforcement, which includes a 24-hour hotline, to be a model for the industry. The parties will continue to work together to enhance the ability of law enforcement officials to investigate and prosecute Internet crimes.

Online Safety Task Force. As part of the Principles, MySpace will organize, with the support of the Attorneys General, an industry-wide Internet Safety Technical Task Force to develop online safety tools, including a review of identity authentication tools. While existing age verification and identity products are not an effective safety tool for social networking sites, the Task Force will explore all new technologies that can help make users more safe and secure including age verification. The Task Force will include Internet businesses, identity authentication experts, non-profit organizations, academics and technology companies. That Internet Safety Technical Task Force concluded its work in January 2009 and its final report is summarized in an appendix to this report.

The agreement then goes on—in the form of two appendices—to detail over 70 specific steps that MySpace will take to expand upon these principles. As part of the agreement, MySpace agreed to:

Implement “age locking” for existing profiles such that members will be allowed to change their ages only once above or below the 18 year old threshold. Once



changed across this threshold, under 18 members will be locked into the age they provided while 18 and older members will be able to make changes to their age as long as they remain above the 18 threshold. MySpace will implement “age locking” for new profiles such that under 18 members will be locked into the age they provide at sign-up while 18 and older members will be able to make changes to their age as long as they remain above the 18 threshold.

Users able to restrict friend requests to only those who know their email address or last name. “Friend only” group invite mandatory for 14 and 15 year olds. “Friend only” group invite by default for 16 and 17 years olds. Users under 18 can block all users over 18 from contacting them or viewing their profile. Users over 18 will be limited to search in the school section only for high school students graduating in the current or upcoming year. Users over 18 may designate their profiles as private to users under 18, and users under 18 may designate their profiles as private to users over 18.

Change the default setting for 16-17 year olds’ profiles from “public” to “private” and create a closed high school section for users under 18. The “private” profile of a 16/17 year old will be viewable only by his/her “friends” and other students from that high school who have been vouched for by another such student. Students attending the same high school will be able to “Browse” for each other.

Obtain a list of adult sites on an ongoing basis and sever all links to those sites from MySpace. They will also demand that adult entertainment industry performers set their profiles to block access to all under 18 users and remove all under 18 users from profiles of identified adult entertainment industry performers.

There is much more to the agreement. In fact, it is difficult to imagine how MySpace could have gone any further to satisfy the online safety concerns raised by AGs or other public policymakers. Indeed, some MySpace users will likely protest that some of the changes go too far. Generally speaking, however, MySpace struck the right balance with most of the other proposals in the agreement, especially considering the pressure they were under from some policymakers to go much further. In that regard, the agreement with the AGs is especially notable for what it did not include: age verification mandates. The call for an Internet Safety Technical Task Force to study online safety methods and identity authentication tools was also a sensible alternative to the rush to mandate age verification, which many AGs favored at the time. (See Section V.B below for more discussion of age verification issues.) The agreement’s focus on education and empowerment was also laudable. In particular, the agreement noted how MySpace will “engage in public service



announcements [and] develop free parental monitoring software.” The importance of education initiatives cannot be overstated. Technical solutions, such as those the AGs clearly favor, will always suffer from inherent limitations and will often be circumvented. Education, by contrast, lasts a lifetime. As this report has repeatedly stressed, we need to be teaching our kids how to be good cyber-citizens and how to identify and report legitimate online threats (predators, bullies, scam artists, etc). Today’s youth are probably far more savvy and sensible about these threats than most adults or policymakers give them credit for. Nonetheless, it is important to be vigilant about online safety education and etiquette in an attempt to teach kids—especially more “at-risk” youth who might be susceptible to online threats—basic life lessons about sensible cyberspace behavior and interactions. Despite the handful of concerns raised above, the MySpace agreement serves as a model for what other social networking companies and online operators could do if they wanted to get more serious about promoting Internet safety. Model #3: Verizon’s company-wide content / online safety efforts In mid-2008, Verizon Communications released a comprehensive, company-wide set of content policy principles that the company will apply across all its services (including FiOS TV, Verizon Wireless, and Verizon Online) and all lines of its business. It also included guidelines on user-generated content and advertising. Although, technically speaking, it is not an industry code of conduct, Verizon’s plan incorporates many of the elements of the code of conduct and best practices described above. As part of the effort, the company produced a detailed Content Policy for Verizon Networks set of guidelines,508 as well as a layman-friendly Guiding Principles for Content on Verizon Networks document that summarized the company’ efforts.509 The plan details the steps Verizon will take to deal with certain forms of objectionable content or communications on their networks, but also notes that the company “offers content management tools to help customers establish appropriate controls” regarding the content that is accessible through the Internet, video, or mobile network connections that Verizon offers. Those tools are found at Verizon’s “Parental Control Center” web portal.510

508

http://responsibility.verizon.com/contentpolicy/policy.htm

509 http://responsibility.verizon.com/contentpolicy/guide.htm

510 www.verizon.net/parentalcontrol

http://responsibility.verizon.com/contentpolicy/policy.htm

http://responsibility.verizon.com/contentpolicy/guide.htm

http://www.verizon.net/parentalcontrol



V. Getting Serious about Online Child Abuse

A. Putting the Problem in Perspective

This section will discuss online child safety and the specific threat posed by cyber-predators and online harassment. These are issues of great concern for parents and policymakers today, and these concerns have prompted recent calls for drastic regulatory mandates like age verification of minors before they go online, or extensive data retention requirements for Internet service providers and other websites. This section will argue that there are better ways to address these concerns. A National Child Abduction Epidemic?

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.511 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.512

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

511

Claire Osborn, Teen, Mom Sue MySpace.com for $30 Million, Austin American-Statesman, June 20, 2006.

512 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

Debates about online child safety are often driven by

fear—fear of bad guys lurking online and waiting to snatch

up our children.



up our children.



up our children.



up our children.



up our children.

http://www.connectsafely.org/articles--advice/commentaries---staff/abduction-by-online-predators-rare.html

http://www.connectsafely.org/articles--advice/commentaries---staff/abduction-by-online-predators-rare.html



Justice and Delinquency Prevention.513 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.514 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.”515

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.516 513

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

514 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

515 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.

516 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.

Not only is it a myth that there is a growing epidemic of Internet-

facilitated child abductions, but it is also a myth that all children are

equally susceptible to falling prey to online predators.













http://www.missingkids.com/en_US/documents/nismart2_overview.pdf

http://www.ag.state.oh.us/victim/pubs/2005ann_rept_mcc.pdf



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.”517 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.518

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

517

“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.

518 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

http://www.missingkids.com/missingkids/servlet/ResourceServlet?LanguageCountry=en_US&PageId=469



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.519

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.520 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.521 (As will be discussed at greater length below, 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.)

“At-Risk” Youth are the Real Concern

Not only is it a myth that there is a growing epidemic of Internet-facilitated child abductions, but it is also a myth that all children are equally susceptible to falling prey to online predators.522 In reality, the population of “at-risk” youngsters who are most likely to become the victim of online predators is very small.

A 2004 study by researchers from the Crimes against Children Research Center

(CCRC) at the University of New Hampshire (UNH) surveyed more than 2,500 cases in

519

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

520 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.

521 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

522 Actual communication with strangers is actually far more limited than more parents or policymakers think. As the USA Today noted in 2009: “New research about online and offline friends shows that most teens use the Internet to interact with people they already know rather than strangers who might turn out to be predators.” Sharon Jayson, For Teens, A Friend Online is Usually a Friend Offline, Too, USA Today, April 2, 2009, www.usatoday.com/tech/webguide/internetlife/2009-04-02-online-friends_N.htm

It is important to remember that predators can’t magically reach through a computer screen and

grab our kids.


grab our kids.


grab our kids.


grab our kids.

http://www.usatoday.com/tech/news/2006-05-15-fbi-chat-rooms_x.htm

http://www.boston.com/news/nation/articles/2006/05/15/teens_online_postings_are_new_tool_for_police

http://www.boston.com/news/nation/articles/2006/05/15/teens_online_postings_are_new_tool_for_police

http://www.boston.com/news/local/rhode_island/articles/2007/02/24/police_departments_turning_to_youtube_to_catch_suspects

http://www.boston.com/news/local/rhode_island/articles/2007/02/24/police_departments_turning_to_youtube_to_catch_suspects

http://www.usatoday.com/tech/webguide/internetlife/2009-04-02-online-friends_N.htm

http://www.usatoday.com/tech/webguide/internetlife/2009-04-02-online-friends_N.htm



which juveniles became the victims of sex crimes by people they met through the Internet.523 The authors found that those children—almost all of whom were teenagers—were not, generally speaking, the victims of the stereotypical scenario that most parents and policymakers fear: “strangers who are pedophiles and who deceive and lure children, frequently over long distances, into situations where they can be forcibly abducted or sexually assaulted.”524 In fact, the opposite was the case.

The study found that “although they undoubtedly manipulated juveniles in a variety of ways, the offenders in the Internet-initiated crimes did not generally deceive victims about being older adults who were interested in sexual relationships. Victims usually knew this propensity before their first face-to-face encounters with offenders.”525 The survey results supporting this finding are startling:

Only 5% of the adult offenders lied about their age and tried to pass themselves

off as being minors.

Only 21% of the adult offenders lied about their sexual desires with the minor.

Yet, despite the fact that most offenders did not hide their desires:

The great majority of victims (83%) who met with offenders face-to-face

voluntarily went somewhere with them afterward (a hotel, movie, restaurant,

etc.), and many (41%) spent at least one night with the offender.

Most victims (73%) willingly met with offenders more than once.

In 89% of the cases, the victims willingly engaged in some sort of sexual activity

with the offender; only 5% of the cases involved violence or rape.

More recently, CCRC researchers noted that, although arrests of online predators increased between 2000 and 2006, “most arrests and the majority of the increase involved offenders who solicited undercover investigators, not actual youth.”526 “Online predator arrests comprise only 1 percent of arrests for sex crimes committed against minors,” says Janis Wolak, a CCRC senior researcher and co-director of the National Juvenile Online Victimization Studies. “The recent growth in arrests is best explained by increasing numbers of youth online,527 migration of crime from offline to 523

Janis Wolak, David Finkelhor, and Kimberly Mitchell, Internet-initiated Sex Crimes against Minors: Implications for Prevention Based on Findings from a National Study, 35 Journal of Adolescent Health, No. 5, 2004, at 11-20, www.unh.edu/ccrc/pdf/CV71.pdf

524 Id., at 18.

525 Id.

526 Crimes against Children Research Center, University of New Hampshire, Trends in Arrests of Online “Predators,” March 2009, www.unh.edu/ccrc/pdf/CV194.pdf

527 The percentage of Americans under age 18 using the Internet was growing significantly during this period, from 73 percent to 93 percent. See Larry Magid, Study Has Mostly Good News about Predator Risk, CNet News.com, March 31, 2009, http://news.cnet.com/8301-19518_3-10208135-238.html

http://www.unh.edu/ccrc/pdf/CV71.pdf

http://www.unh.edu/ccrc/pdf/CV194.pdf

http://news.cnet.com/8301-19518_3-10208135-238.html



online venues and the intensification of law enforcement activity against online crimes,” Wolak says.528 The UNH researchers thus conclude:

The publicity about online “predators” who prey on naive children using trickery and violence is largely inaccurate. Internet sex crimes involving adults and juveniles more often fit a model of statutory rape—adult offenders who meet, develop relationships with, and openly seduce underage teenagers—than a model of forcible sexual assault or pedophilic child molesting. This is a serious problem, but one that requires different approaches from current prevention messages emphasizing parental control and the dangers of divulging personal information. Developmentally appropriate prevention strategies that target youth directly and focus on healthy sexual development and avoiding victimization are needed. These should provide younger adolescents with awareness and avoidance skills, while educating older youth about the pitfalls of relationships with adults and their criminal nature. Particular attention should be paid to higher risk youth, including those with histories of sexual abuse, sexual orientation concerns, and patterns of off- and online risk taking.529

The fact that some children would consent to meet with older strangers and engage in such acts is shocking and disturbing, and most parents would find it unfathomable that their own children would voluntarily involve themselves with older men in this fashion. But therein lies the real problem. The researchers in this study found that most youngsters involved in those cases did not have a good relationship with their parents. In many cases, the victims reported a high degree of conflict with their parents or very little parental interaction and mentoring. In some cases, parents were absent from the home altogether. Loneliness and depression were also prevalent traits in many of the youngsters. And some of the boys who became willing victims were “gay or questioning” about their sexuality and were scared to talk to their parents or educators about it.

Those children are at-risk youth who need help. What they need most is love

and understanding. When they cannot get them because of parental estrangement or incompetence, it is not surprising that some will look elsewhere for acceptance. As Nancy E. Willard, author of Cyber-Safe Kids, Cyber-Savvy Teens notes:

528

Janis Wolak, David Finkelhor & Kimberly Mitchell, Crimes against Children Research Center, University of New Hampshire, National Study Finds Large Increase in Arrests of Online Predators in Undercover Operations, March 31, 2009, www.unh.edu/ccrc/Presspacket/033109_pr.pdf

529 Janice Wolak, David Finkelhor, Kimberly Mitchell & Michele Ybarra, Online “Predators” and their Victims: Myths, Realities and Implications for Prevention and Treatment, 63 Am. Psychologist 2, 111-128 (2008), www.unh.edu/ccrc/pdf/Am%20Psy%202-08.pdf.

http://www.unh.edu/ccrc/Presspacket/033109_pr.pdf

http://www.unh.edu/ccrc/pdf/Am%20Psy%202-08.pdf



All humans crave companionship and acceptance. Children who, for whatever reason, do not have healthy relationships and do not feel accepted in the “real world” will be inclined to seek out online connections and communities in which they feel accepted. And this can lead to greater danger online.530

Although the Internet and social networking websites provide them with one

potential way of finding help or building rewarding friendships, the danger exists that they might be so desperate for such acceptance that they would even seek it from older strangers who might want to befriend them only to satisfy perverted sexual desires.

It would be wrong, however, to assume that all youth share those same

problems or would voluntarily meet—or engage in sexual activity with—an older man. Rather, only a handful of at-risk youth give rise to this problem.531 And even if we could find an effective way for all Internet sites to age-verify their users, many of these at-risk youth would likely still seek out acceptance from older figures using alternative means. Indeed, 79 percent of the victims in the study mentioned earlier were also contacted by the offenders by telephone, and almost 20 percent received correspondence by traditional mail. But no one would seriously consider trying to solve such a problem by age-verifying minors before they use phones or send letters.

Educators, health officials, and

other organizations need to devise better strategies for assisting such at-risk youth. The first step is finding them. Again, this step is where the Internet and social networking sites actually help solve problems. For example, John Draper, director of the National Suicide Prevention Lifeline,532 has said that referrals from MySpace.com users have become the largest source of calls to the hotline. He says that some kids are increasingly using their social networking profiles “to in some way convey that they had suicidal intent. There is very much the potential for saving lives because the first people to hear about kids at risk are

530

Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), at 155-6.

531 A 2009 study also found that girls who had a history of childhood abuse were more likely later in life to engage in risky online sexual encounters as well as offline, in-person encounters. Study: Abuse, Provacative Images Increase Internet Risk for Girls, CNN.com, May 26, 2009, http://edition.cnn.com/2009/TECH/05/26/girls.internet.study

532 www.suicidepreventionlifeline.org

Educators, health officials, and other organizations need to devise better strategies for assisting at-

risk youth.


other organizations need to devise better strategies for assisting at-

risk youth.



risk youth.



risk youth.


other organizations need to devise

http://edition.cnn.com/2009/TECH/05/26/girls.internet.study/

http://www.suicidepreventionlifeline.org/



other kids.”533 In fact, the organization has recently established its own MySpace profile to enable easier reporting of problems.534

Another independent MySpace suicide prevention site—“SOS” (Students

Overcoming Suicide)—aims “to prevent and raise awareness about teenage suicide in the place where teens are most reachable; schools... Through SOS, our goal is to reach out to those in need, and offer hope to those who would otherwise have nowhere else to turn. In doing so, we want to show that nobody is truly alone in this world, no matter how bad it may seem. SOS aims to bring teens together in an attempt to unite and overcome feelings of despair, isolation, and hopelessness.” 535

Many other examples of peers

assisting other at-risk peers can be found on social networking sites. On MySpace.com alone, notable examples include: “Helping Teens”536 and “Teens Helping Teens,”537 which both let youth counsel each other or suggest places where others might find help. Teens Soliciting Teens

In this debate, much is also made of a statistic culled from the second Youth Internet Safety Survey (YISS-2) from the National Center for Missing and Exploited Children, which found that one out of every seven (13%) children has received a sexual solicitation while online.538 Although this figure represents a decline from the 1-in-5 (19%) finding from the first survey (YISS-1), it is still a disturbing number.

Importantly, however, the YISS survey noted that a significant percentage of those “solicitations” are kids talking to other kids. In other words, when 17-year-old Johnny propositions 16-year-old Jenny, it counts as a “solicitation.” Of course, teens were delivering salacious solicitations to each other long before the Internet came

533

Quoted in Larry Magid and Anne Collier, MySpace Unraveled: A Parent’s Guide to Teen Social Networking (Berkeley, CA: Peachtree Press, 2007), at 174, www.myspaceunraveled.com.

534 www.myspace.com/suicidepreventionlifeline

535 www.myspace.com/studentsovercomingsuicide

536 www.myspace.com/helpingteens

537 www.myspace.com/whymeteenshelpingteens

538 Janis Wolak, Kimberly Mitchell, and David Finkelhor, Online Victimization: Five Years Later, National Center for Missing and Exploited Children, 2006, www.missingkids.com/en_US/publications/NC167.pdf

Whatever their concerns are about current domestic sites, parents and

policymakers should understand that those sites are generally more

accountable and visible than offshore sites.



accountable and visible than offshore sites over which we have

virtually no influence but that have the same reach as domestic sites.




virtually no influence but that have the same reach as domestic sites.




virtually no influence but that have


http://www.myspace.com/suicidepreventionlifeline

http://www.myspace.com/studentsovercomingsuicide

http://www.myspace.com/helpingteens

http://www.myspace.com/whymeteenshelpingteens

http://www.missingkids.com/en_US/publications/NC167.pdf



along, but parents had no way to track sexual solicitations unless they found a dirty note in a schoolbag or pants pocket.

This reality is not to condone the rude and raunchy behavior some teens engage

in, but we need to be realistic about the issue and to understand that, in a certain sense, this problem has always been with us. It is simply more visible to us now. For the first time, we are measuring things that were previously unmeasured or unmeasurable. Regardless, teens trash-talking to other teens is a problem that will not disappear with the regulation of the Internet or the imposition of age verification on social networking sites.

B. Wrong Solution: Mandatory Age Verification

Many policymakers are advocating mandatory age verification of minors as a potential solution to some of the concerns expressed above.539 In particular, many state attorneys general (AGs) are demanding that social networking websites such as MySpace, Facebook, Xanga, and others verify the age of their users before they are allowed on such sites.540 That is unfortunate because, as will be shown below, perfect age verification is a quixotic objective and the pursuit of it could create a false sense of security for both parents and children. It could also have profound ramifications for freedom of speech and privacy.541 And, as the adjoining exhibit notes, this has also been the general conclusion of the major online safety task forces that have examined the issue. These task force reports are discussed at greater length in an appendix to this report.

539

This section is condensed from a much longer study on the issue I published in March 2007. See Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point 14.5, March 21, 2007, www.pff.org/issues-pubs/pops/pop14.5ageverification.pdf . Also see Adam 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.

540 Emily Steel & Julia Angwin, MySpace Receives More Pressure to Limit Children’s Access to Site, Wall Street Journal, June 23, 2006, http://online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html?mod=tff_main_tff_top

541 In the most recent COPA-related decision in U.S. District Court for the Eastern District of Pennsylvania [discussed further below], Judge Lowell Reed held that, “Requiring users to go through an age verification process would lead to a distinct loss of personal privacy.” American Civil Liberties Union v. Gonzales, No. 98-5591 (E.D. Pa. Mar. 22, 2007), at 55, www.cdt.org/speech/copa/20070322copa.pdf.



http://www.pff.org/issues-pubs/other/090114ISTTFthiererclosingstatement.pdf

http://online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html?mod=tff_main_tff_top

http://online.wsj.com/public/article/SB115102268445288250-YRxkt0rTsyyf1QiQf2EPBYSf7iU_20070624.html?mod=tff_main_tff_top




Exhibit 66: What Major Child Safety Task Forces Said about Age Verification

2000 – Commission on Online Child Protection (“COPA Commission”)

[Age verification] imposes moderate costs on users, who must get an I.D. It imposes high costs on content sources that must install systems and might pay to verify I.D.s. The adverse effect on privacy could be high. It may be lower than for credit card verification if I.D.s are separated from personally-identifiable information. Uncertainty about the application of a harmful to minors standard increases the costs incurred by harmful to minors sites in connection with such systems. An adverse impact on First Amendment values arises from the costs imposed on content providers, and because requiring identification has a chilling effect on access. Central collection of credit card numbers coupled with the "embarrassment effect" of reporting fraud and the risk that a market for I.D.s would be created may have adverse effect on law enforcement.

542

2002 – Youth, Pornography, and the Internet (“Thornburgh Commission”)

In an online environment, age verification is much more difficult because a pervasive nationally available infrastructure for this purpose is not available. *…+ Note that each of these [age verification] methods imposes a cost in convenience of use, and the magnitude of this cost rises as the confidence in age verification increases.

543

2008 – Safer Children in a Digital World (“Byron Review”)

[N]o existing approach to age verification is without its limitations, so it is important that we do not fixate on age verification as a potential ‘silver bullet’.

544

2009 – Internet Safety Technical Task Force (ISTTF)

Age verification and identity authentication technologies are appealing in concept but challenged in terms of effectiveness. Any system that relies on remote verification of information has potential for inaccuracies. For example, on the user side, it is never certain that the person attempting to verify an identity is using their own actual identity or someone else’s. Any system that relies on public records has a better likelihood of accurately verifying an adult than a minor due to extant records. Any system that focuses on third-party in-person verification would require significant political backing and social acceptance. Additionally, any central repository of this type of personal information would raise significant privacy concerns and security issues.

545

2009 – “Point Smart. Click Safe.” Blue Ribbon Working Group

The task force acknowledges that the issues of identity authentication and age verification remain substantial challenges for the Internet community due to a variety of concerns including privacy, accuracy, and the need for better technology in these areas.

546

542

COPA Commission, Report to Congress, Oct. 20, 2000, www.copacommission.org 543

Computer Science and Telecommunications Board, National Research Council, Youth, Pornography and the Internet (Washington, DC: National Academy Press, 2002), at 63-4, www.nap.edu/html/youth_internet/

544 Safer Children in a Digital World: The Report of the Byron Review, March 27, 2008, at 99. www.dcsf.gov.uk/byronreview

545 Internet Safety Technical Task Force, Enhancing Child Safety & Online Technologies: Final Report of the Internet Safety Technical Task Force to the Multi-State Working Group on Social Networking of State Attorneys General of the United States, Dec. 31, 2008, at 10, http://cyber.law.harvard.edu/pubrelease/isttf.

546 www.pointsmartclicksafe.org/report

http://www.copacommission.org/

http://www.nap.edu/html/youth_internet/

http://www.dcsf.gov.uk/byronreview

http://cyber.law.harvard.edu/pubrelease/isttf

http://www.pointsmartclicksafe.org/report.



It is vitally important that lawmakers do nothing that could force mainstream, domestic social networking sites offshore or, even worse, that could drive the users we are trying to protect to offshore sites. Whatever their concerns are about current domestic sites, parents and policymakers should understand that those sites are generally more accountable and visible than offshore sites over which we have virtually no influence but that have the same reach as domestic sites. The Complexities of Human Identification

Generally speaking, the problem that age verification is supposed to solve is to keep older people away from youngsters, at least in certain circumstances. Also, some proponents wish to use age verification to ban preteen access to social networking sites. To accomplish either of those objectives, we must be able to effectively verify everyone’s age by consulting reliable records about those looking to create an account on a social networking site. In other words, when Janie Smith comes to a social networking site for the first time, the site must be able to verify not only that she is Janie Smith, but that she really is as old as she claims to be. But this verification is easier said than done. Consider first what is required to verify an adult’s identity. When government officials or even corporations seek to verify someone’s identify or age, they can rely on birth certificates, Social Security numbers, driver’s licenses, military records, home mortgages, car loans, other credit records, or credit cards. But even with all those pieces of information, challenges remain. Is the information publicly accessible or restricted by legal or other means? Are all the underlying pieces of information and documentation trustworthy, or have they been manipulated or misreported in some way? Has someone faked his or her identity? And so on. Thus, while the identity authentication systems—both public and private—have improved significantly in recent decades, they still face some inherent challenges and concerns about fraud.547

The current concern about “identity theft” demonstrates the complexities and level of difficulty involved in stamping out this problem. Even U.S. passports, which are relatively robust identification documents that contain authentication data, are occasionally forged with success. “It is safe to assume that future age verification efforts will yield failures on par with other identification/authentication mechanisms,” says

547

For a comprehensive discussion of such matters, see Jim Harper, Identity Crisis: How Identification Is Overused and Misunderstood (Washington, DC: Cato Institute, 2006).

Perfect age verification is a quixotic objective and the pursuit of it could create a false sense of security for

both parents and children. Perfect age verification is a quixotic objective and the pursuit of it could create a false sense of security for






both parents and children.



information security expert Jeff Schmidt, CEO of Authis, Inc.548 “When one considers how frequently college students successfully circumvent age verification requirements in person and with government issued documents, one can begin to grasp the challenges that lie ahead.”549 Importantly, we are only talking just about adults here. When the focus of identity verification efforts shifts to minors, the endeavor becomes far more complicated. Minors don’t have home mortgages, car loans, or military records, and most have never worked. Most don’t have driver’s licenses or credit cards either. Of course, minors do have birth certificates, Social Security numbers, and school records, but both parents and government officials have long demanded that access to those records be tightly guarded. That’s for a very good reason: As a society, we take privacy seriously—especially the privacy of our children. Laws and regulations have been implemented that shield such records from public use, including the Family Educational Rights and Privacy Act of 1974 and various state statutes.550 Also, to the extent that age verification of adults works for some websites—online dating services, for example—it is important to realize that in most of those cases the users want to be verified. In that context, identify authentication increases marketability of a user’s “profile,” or it allows him or her to participate more actively in an environment where trust is essential. This fact makes it far more likely that age verification will work because user compliance is driven by market forces, not regulation. That compliance will not be the case when users—especially kids—inherently resist the idea of being age-verified before they go onto certain websites. (We should also not forget that some kids will share their online credentials or passwords with friends.) It is also important to realize that age verification and background checks are not synonymous. Information security expert John J. Cardillo, president and CEO of Sentinel, a leading authentication firm, argues that:

Most people are ignorant of what we do. They hear the words “check” or “verification” and they assume a full background check will be run on the individual. When this is sponsored by an AG, the chief law enforcement officer of their state, there’s a perception that the criminal background checks are inclusive in whatever they’re proposing. Age verification, on its own, doesn’t indicate whether or not a person is a convicted sex offender. Mandated age verification, as proposed, would allow the

548

Jeff Schmidt, e-mail conversation on file with author, Feb. 19, 2007.

549 Id.

550 www.ed.gov/policy/gen/guid/fpco/ferpa/index.html

http://www.ed.gov/policy/gen/guid/fpco/ferpa/index.html



hundreds of thousands of offenders … who are over 18, unrestricted access to sites. Worse, it would allow these offenders the ability to vouch for children that might or might not exist. This is where it gets most dangerous. People might assume that “verified” users have undergone some type of vetting, and let their guard down just that little bit the offenders need to exploit. In the case of convicted sex offenders, age verification actually helps them by giving them an additional layer of legitimacy.551

Again, this points to the danger of creating a false sense of security online by mandating a solution that doesn’t address the real problem.

And, once again, the special challenges raised by the nature of the Internet and online communication must be reiterated. Finding a dependable source of identity or age information and then reliably matching it to someone thousands of miles away on the Internet (perhaps in another jurisdiction, or even another country) is a daunting challenge—made even more difficult by the fact that a remote individual may be actively attempting to subvert the age verification process. Solving this problem necessitates authentication data that are appropriate for online interaction. In the real world, we perform in-person authentication with a photo or physical description; the online world requires a username / password combination, biometric authenticator, or physical security token. An arms-race scenario is obviously at work here, and because a perfect solution is impossible, we must guard against a false sense of security.

Lastly, because technology is evolving at such a rapid pace in this area, there is a

risk that legislative solutions will become obsolete very rapidly. That is particularly the case since “social networking” is still an evolving notion. Clearly, sites like MySpace and Facebook qualify. But what about other types of sites or services that allow similar forms of interaction? For example, what about traditional e-mail and IM services, or new location-based mobile networking services? Finally, what about gaming platforms? As mentioned earlier, social networking capabilities are increasingly being integrated into gaming consoles, and many video games already feature interactive social networking capabilities.552 That is, gamers can create their own profiles and text or chat with friends real-time while engaging in online gaming activities. Why Credit Cards Won’t Work Although there are many potential variations of age verification, the leading varieties mentioned in these debates are credit card authorizations and parental permission-based systems of authentication. Unfortunately, both methods have serious flaws and drawbacks.

551

John J. Cardillo, e-mail conversation on file with author, March 11, 2007.

552 Walaika Haskins, Gamin’s Play for Social Networks, Tech News World, May 12, 2008, www.technewsworld.com/story/social-networking/62953.html

http://www.technewsworld.com/story/social-networking/62953.html



Credit cards are often viewed by policymakers as the silver bullet solution for age verification. Even though credit card companies typically do not wish their cards to be used as age verification tools, government has advocated their use in that way in the past, but they are not a silver bullet. “Mere possession of a credit card is not a reliable assertion of identity or age,” argues Jeff Schmidt of Authis.553 Credit cards can be a rough proxy for age on the assumption that only adults over the age of 18 have credit cards, but that assumption is false. Many minors are given credit cards by their parents. Youngsters can borrow or steal credit cards from their parents or others. And Schmidt notes that newly created stored value cards, specifically marketed for use by children, “are in many cases indistinguishable from actual credit cards—both in physical appearance and in the back-end transaction processing systems.”554 Sentinel’s John Cardillo points out additional reasons why credit cards are not effective age verification tools:

When a card is used for verification purposes, an authorization on that card is run for $1.00 (or less), however a charge isn’t put through. The card typically isn’t reconciled against any database for name and/or age, nor is a signature checked. Because of the insignificant dollar amount, the only thing that’s checked for security purposes, in some instances, is zip code. Anyone who’s ever bought gasoline with a credit card knows this to be true. Our names and ages aren’t checked at the pump. Check your statement online next time you gas up. You’ll see an authorization for $1.00 and the actual charge a few days later. The same merchant banks handle the transactions online. In other words, in most cases, all that’s being verified is that the card account isn’t closed or stolen. Who’s using it is irrelevant.555

Moreover, “many parents may feel uncomfortable giving their credit card number online at children’s Web sites where there is no transaction involved,”556 noted

553

Jeff Schmidt, e-mail conversation on file with author, Feb. 19, 2007.

554 Id.

555 John J. Cardillo, e-mail conversation on file with author, March 11, 2007.

556 American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers, the Direct Marketing Association, Inc., & Magazine Publishers of America, Filing in COPPA Rule Review 2005, June 27, 2005, at 5.

Credit cards are often viewed by policymakers as the silver bullet solution for age verification. But

they are not a silver bullet.















a joint filing by a coalition of major commercial organizations, including the American Advertising Federation, American Association of Advertising Agencies, Association of National Advertisers, the Direct Marketing Association, Inc., and Magazine Publishers of America. In a June 2005 filing to the Federal Trade Commission, these organizations noted that “in light of current online scams, heightened concerns about online security, and the rise of such practices as phishing, parents may be reluctant to provide credit card numbers absent a transaction.”557 But that begs the question: If lawmakers required social networking sites to process a credit card transaction to age-verify, is that fair? In particular, is it fair for low-income families? And what about those families that do not possess a credit card? Finally, the law is not even settled about using credit cards for access to adult-oriented websites. Congress passed the Child Online Protection Act (COPA) in 1998 in an effort to restrict minors’ access to adult-oriented websites. The measure provided an affirmative defense to prosecution if a website operator could show that it had made a good-faith effort to restrict site access by requiring a credit card, adult personal identification number, or some other type of age-verifying certificate or technology. The legislation was immediately challenged and was twice reviewed by the Supreme Court. The legal wrangling about COPA’s constitutionality continued for over a decade. The last substantive COPA decision was handed down on March 22, 2007, by Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania.558 Judge Reed issued a permanent injunction against the enforcement of COPA. In July 2008, the full Third Circuit Court of Appeals upheld Judge Reed’s ruling striking down COPA,559 and then, in January 2009, the Supreme Court rejected the government’s latest request to revive the law, meaning it is likely dead.560 In his evidence-laden decision, Judge Reed held that COPA was unconstitutional because it was not “the least restrictive, most effective alternative in achieving the *government’s+ compelling interest” and it remains “impermissibly vague and

557

Id.

558 American Civil Liberties Union v. Gonzales, No. 98-5591 (E.D. Pa. Mar. 22, 2007), at 35, www.cdt.org/speech/copa/20070322copa.pdf.

559 www.cdt.org/speech/20080722COPA3rdCircuit.pdf

560 See Adam Thierer, The Progress & Freedom Foundation, Closing the Book on COPA, PFF Blog, Jan. 21, 2009, http://blog.pff.org/archives/2009/01/closing_the_boo.html.

Because websites are far away from the parents, how is the site operator

going to ensure that the person vouching for the child’s age is really

the parent or even an adult? Because websites are far away from the parents, how is the site operator










the parent or even an adult? Because websites are far away from


http://www.cdt.org/speech/20080722COPA3rdCircuit.pdf




overbroad.”561 Regarding age verification, Judge Reed held that, “From the weight of the evidence, I find that there is no evidence of age verification services or products available on the market to owners of Web sites that actually reliably establish or verify the age of Internet users. Nor is there evidence of such services or products that can effectively prevent access to Web pages by a minor.”562 Specifically, regarding the use of credit cards as an age verification tool, Judge Reed argued that, “payment cards cannot be used to verify age because minors under 17 have access to credit cards, debit cards, and reloadable prepaid cards” and… “there are many other ways in which a minor may obtain and use payment cards.”563 In a sense, Judge Reed’s decision was unsurprising since many other experts had arrived at the same conclusion in previous studies. For example, when COPA was passed, it established an expert Commission on Online Child Protection to study methods for reducing access by minors to harmful material on the Internet. As part of its final report, the COPA commission said credit card-based age verification would be completely inappropriate for instant messaging and chat, which were the precursors of social networking. The commission found: “This system’s limitations include the fact that some children have access to credit cards, and it is unclear how this system would apply to sites outside the U.S. It is not effective at blocking access to chat, newsgroups, or instant messaging.”564 Parental Consent / Notification Mandates With opposition to strict age verification mandates growing, some regulatory advocates now seek to institute such mandates through the back door of “parental consent” mandates in the model of the Children’s Online Privacy Protection Act (COPPA) of 1998.565 COPPA required websites that marketed to children under the age of 13 to

561

American Civil Liberties Union v. Gonzales, Id., at 1.

562 Id., at 44.

563 Id., at 46. “The minimum information required by a DVS *data verification services+ company to attempt a verification is a first name, last name, street address, and zip code. This minimum information requirement can easily be circumvented by children who generally know the first and last name, street address and zip codes of their parents or another adult. … I find from the testimony that without a physical delivery of goods and an accompanying visual age verification, neither the [data verification services] nor the Web page operator can know whether an adult or a child provided the information. Attempting to verify age with this information in a consumer-not-present transaction is therefore unreliable.” Id., at 49.

564 Commission on Online Child Protection, Final Report, Oct. 20, 2000, www.copacommission.org/report/ageverification.html. Also see Computer Science and Telecommunications Board, National Research Council, Youth, Pornography, and the Internet, (Washington, DC: National Academy Press, 2002), at 206-9, 339-49.

565 For an extended discussion of these issues, see 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, http://pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf;

http://www.copacommission.org/report/ageverification.html

http://pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf




get “verifiable parental consent” before allowing children access to their sites. The Federal Trade Commission (FTC), which is responsible for enforcing COPPA, adopted a so-called sliding scale approach to obtaining parental consent. The sliding scale approach allows website operators to use a variety of the methods described above to comply with the law. The FTC also authorized four “safe harbor” programs operated by private companies that help website operators comply with COPPA.566 Efforts to expand this approach will appeal to many because it can be likened to a parent signing a “permission slip” for a child. Unfortunately, parental permission-based approaches are more complicated for online activities. Because websites are far away from the parents, how is the site operator going to ensure that the person vouching for the child’s age is really the parent or even an adult? Would the verifier mail or fax notarized documents? Those documents can be forged, of course. Mandatory follow-up phone calls would be cumbersome, costly, and potentially viewed as intrusive. And the use of credit cards to satisfy the permission requirement might raise some of the same problems already discussed. Nonetheless, legislation has been introduced at the state level that would extend the COPPA parental-consent framework to cover all minors between the ages of 13 and 17 inclusive (“adolescents”). Some of these bills would also broaden the range of sites covered, increase the amount of information required to be collected to achieve “verifiable parental consent” or impose other mandates such as parental access. Two such bills were introduced in 2007, in North Carolina (with the support of that state’s Attorney General Roy Cooper)567 and Georgia.568 While these bills were never passed, a similar bill is currently pending in Illinois.569 Because the scope of such bills would reach all “social networking sites” that offered certain functionality (e.g., user profiles), rather only those sites directed at a particular age bracket (as under COPPA), they would extend age verification mandates far beyond sites that might be considered “adolescent-oriented.” Another bill is currently pending in New Jersey; like COPPA, this bill would reach only sites directed at adolescents, but it might reach a

566

The programs are administered by: the Children’s Advertising Review Unit of the Council of Better Business Bureaus (CARU); the Entertainment Software Rating Board (ESRB); TRUSTe; and Privo.

567 S.B. 132, 2007 Gen. Assem., Reg. Sess. § 8 (N.C. 2007), available at www.ncga.state.nc.us/Sessions/2007/Bills/Senate/HTML/S132v3.html; see also Roy Cooper, Protecting Children from Sexual Predators: SB 132, July 24, 2007, www.ncdoj.com/DocumentStreamerClient?directory=WhatsNew/&file=S132%20Summary%20final.pdf; see also Adam Thierer, The Progress & Freedom Foundation, Age Verification Showdown in North Carolina, PFF Blog, July 26, 2007, http://blog.pff.org/archives/2007/07/age_verificatio.html.

568 S.B. 59, Gen. Assem., 2007-2008 Leg. Sess. (Ga. 2007), available at www.legis.ga.gov/legis/2007_08/fulltext/sb59.htm.

569 H.B. 1312, 96th Gen. Assem., Synopsis as Introduced (Il. 2007) [hereinafter SNWARA], available at www.ilga.gov/legislation/billstatus.asp?DocNum=1312&GAID=10&GA=96&DocTypeID=HB&LegID=43038&SessionID=76.

http://www.ncga.state.nc.us/Sessions/2007/Bills/Senate/HTML/S132v3.html

http://www.ncdoj.com/DocumentStreamerClient?directory=WhatsNew/&file=S132%20Summary%20final.pdf

http://www.ncdoj.com/DocumentStreamerClient?directory=WhatsNew/&file=S132%20Summary%20final.pdf

http://blog.pff.org/archives/2007/07/age_verificatio.html

http://www.legis.ga.gov/legis/2007_08/fulltext/sb59.htm

http://www.ilga.gov/legislation/billstatus.asp?DocNum=1312&GAID=10&GA=96&DocTypeID=HB&LegID=43038&SessionID=76

http://www.ilga.gov/legislation/billstatus.asp?DocNum=1312&GAID=10&GA=96&DocTypeID=HB&LegID=43038&SessionID=76



broader range of sites, because its scope is not limited specifically to “social networking” functionality.570 The introduction of these bills, which might best be grouped together as “COPPA 2.0” efforts, makes it clear that future online identity verification debates will be increasingly tied up with efforts to expand the COPPA framework. These mandates will likely arrive in the form of state-level expansions of, or federal amendments to, COPPA, or such proposals will at least cite COPPA’s regulatory framework as precedent. Yet COPPA 2.0 advocates seem to forget that, back in 1998, Congress considered, but ultimately rejected, a requirement in the original version of COPPA that operators make “reasonable efforts to provide the parents with notice and an opportunity to prevent or curtail the collection or use of personal information collected from children over the age of 12 and under the age of 17.”571 This requirement would have been significantly less burdensome than the COPPA 2.0 approaches advanced today, but it was stricken from the final version of COPPA after likely constitutional and practical problems were identified.572 In a 2007 report to Congress, the FTC argued that no changes to COPPA were necessary at this time because it had “been effective in helping to protect the privacy and safety of young children online.”573 In discussing the effectiveness of the sliding scale methods, however, the agency also found that “none of these mechanisms is foolproof” and that “age verification technologies have not kept pace with other developments, and are not currently available as a substitute for other screening mechanisms.”574 One of the problems associated with COPPA is that “Children quickly learned to lie about their age in order to gain access to the interactive features on their favorite sites,” notes Denise G. Tayloe, CEO of Privo, Inc., one of the four FTC-approved safe harbor programs.575 “As a result, databases have become tainted with inaccurate information and chaos seems to be king where COPPA is concerned,” she says.576

570

A.B. 108, Gen. Assem., 213th Leg. Sess. (N.J. 2008) [hereinafter AOPPA], available at www.njleg.state.nj.us/2008/Bills/A0500/108_I1.HTM.

571 Children’s Online Privacy Protection Act, S. 2326, 105

th Cong. § 3(a)(2)(iii) (1998).

572 Testimony of Deirdre Mulligan, Staff Counsel, Center for Democracy and Technology, before the Senate Committee on Commerce, Science and Transportation Subcommittee on Communications, Sept. 23, 1998, available at www.cdt.org/testimony/980923mulligan.shtml [hereinafter Mulligan Testimony].

573 Federal Trade Commission, Implementing the Children’s Online Privacy Protection Act: A Report to Congress, Feb. 2007, at 1, www.ftc.gov/reports/coppa/07COPPA_Report_to_Congress.pdf

574 Id., at 12-13.

575 Denise Tayloe, It’s Time to Comply with COPPA, Privacy Advisor, Vol. 6, No. 10, Oct. 2006, at 5.

576 Tayloe, Id. Others have confirmed that this is taking place. Parry Aftab of Wired Safety notes that “Preteens quickly learned that if they say they are under thirteen they will be prohibited from using

http://www.njleg.state.nj.us/2008/Bills/A0500/108_I1.HTM

http://www.cdt.org/testimony/980923mulligan.shtml

http://www.ftc.gov/reports/coppa/07COPPA_Report_to_Congress.pdf



Nonetheless, Tayloe argues that, despite these flaws, COPPA is important. Even though “there is no perfect solution” and it is not possible to completely “stop a child from lying and putting themselves at risk,” Tayloe points out that the law “provides a platform to educate parents and kids about privacy.”577 Of course, providing a platform to educate parents and kids is important, but it is not necessarily synonymous with strict age verification.

Nonetheless, these permission-based verification schemes might work for

smaller, closed online communities in which the kids and parents are willing to take the time (and expense) to undertake extensive authentication. For example, smaller social networking sites such as ZoeysRoom.com, ClubPenguin.com, and Tweenland.com have extremely strict enlistment policies, primarily because they target or allow younger users. As Sue Shellenbarger of the Wall Street Journal explains:

The under-16 sites pose few of the hazards linked to networking sites for older people. The activities range from chats and blogging to creating virtual pets or characters and acting out roles in virtual cities. For a child to register, the sites typically require a parent’s email permission, a parental signature on a permission form, or a parent’s credit card verification. Some limit young children’s interchanges to drop down menus of preapproved words and phrases. Most filter content for inappropriate material and employ live adult monitors who ensure that kids’ conversations don’t stray off course. Some limit chats or blog access to participants who are already preapproved and already known to a child’s family.578

Ironically, one can probably safely assume that the kids using such services are not in the high-risk group discussed earlier. The parents who use such services are probably doing a fine job of mentoring their kids and don’t really need to resort to such restrictive solutions. Nonetheless, such highly restrictive “walled garden” approaches do provide parents with greater ease of mind. That’s not necessarily because of the strict enlistment policies so much as the extreme limitations on what kids can do on those sites or with whom they can communicate while online.

Regardless of how well the above schemes work in practice for these smaller, more closed online communities—and some experts do question how well they actually work579—such solutions lack scalability. Schemes that demand laborious and expensive

many sites. So they regularly lie about their age everywhere online.” Parry Aftab, Filing in COPPA Rule Review 2005, June 27, 2005, at 5, www.ftc.gov/os/comments/COPPArulereview/516296-00021.pdf

577 Denise Tayloe, e-mail conversation on file with author, March 15, 2007.

578 Sue Shellenbarger, How Young is Too Young When a Child Wants to Join the MySpace Set? Wall Street Journal, Oct. 19, 2006, at D1.

579 Internet security expert Cardillo argues that even these sites and schemes are vulnerable:

http://www.ftc.gov/os/comments/COPPArulereview/516296-00021.pdf



enrollment requirements, or that greatly limit functionality and interactivity after users sign up, will almost certainly not work for larger social networking sites with a massive community of users.580 The administrative burdens would be significant for both site operators and parents alike. For example, Parry Aftab of Wired Safety notes that COPPA has made it much more difficult for some smaller website operators to stay afloat. “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 [consent is] difficult to obtain.”581

And because users would sacrifice a great deal of autonomy and functionality once online, many would likely rebel against the system or would seek to subvert it in some fashion. If such a system significantly slows or impedes the creation of new accounts for domestic social networking sites, it will create a perverse incentive for kids to seek other sites with less-restrictive policies, including offshore sites.

One can imagine other ways parents could work together and use publicly available information about kids to credential them before they go online, but the scalability of those solutions will always likely limit their effectiveness.

During an analysis of the security processes of certain sites we tested Imbee’s. Our

security team was able to create several fake children. More troubling was the inconsistency of the information used to do so. We used a fake name for the parent, a different fake name created for the Yahoo! e-mail account used at registration, and my credit card info (because the name on the CC is irrelevant). Fictional child, and three fake identifiers on supposedly the same adult. Not one red flag was raised, and we were allowed onto the site without a problem. Our team was able to do this multiple times. Had we been a real bad guy, we could have, at any time, chatted with other kids on the site as a child. One of several different children actually. Not only isn’t it a security solution, it’s downright dangerous.

John J. Cardillo, e-mail conversation on file with Adam Thierer, March 11, 2007. Thus, the real bad guys out there intent on doing harm to children might still be able to exploit this sort of process. Because many predators have children of their own, they might use this approach to obtain an ID for their own kids and then go online under their child’s name to prey on other children. But because they are “verified,” a false sense of security now exists. Again, this is a major problem. As Cardillo has noted elsewhere, it allows the bad guys to essential create a “pedophile passport” and operate freely in supposedly “safe and secure” environments. See The Progress & Freedom Foundation, Age Verification for Social Networking Sites: Is It Possible? Is It Desirable?” Progress on Point 14.8, May 2007, at 6, www.pff.org/issues-pubs/pops/pop14.8ageverificationtranscript.pdf

580 In the most recent COPA-related decision in U.S. District Court for the Eastern District of Pennsylvania, Judge Reed held that, “It is not economically feasible for a Web page operator, especially one that provides free content, to verify the information of every customer that visits the Web page with [an age verification service+.” American Civil Liberties Union v. Gonzales, No. 98-5591 (E.D. Pa. Mar. 22, 2007), at 53, www.cdt.org/speech/copa/20070322copa.pdf.

581 Parry Aftab, Filing in COPPA Rule Review 2005, June 27, 2005, at 2, www.ftc.gov/os/comments/COPPArulereview/516296-00021.pdf

http://www.pff.org/issues-pubs/pops/pop14.8ageverificationtranscript.pdf


http://www.ftc.gov/os/comments/COPPArulereview/516296-00021.pdf



Summary of Problems with Mandatory Age Verification In sum, mandatory age verification represents a dangerous solution to concerns about online child safety because it:582

Won’t Work: Mandatory age verification will not work as billed. For the reasons detailed below, it will fail miserably and create more problems than it will solve.

Will Create a False Sense of Security: Because it will fail, mandatory age verification will create a false sense of security for parents and kids alike. It will lead them to believe they are entering “safe spaces” simply because someone has said users are “verified.”

Is Not a Background Check: Moreover, even if age verification did work as billed, it is important to realize it is not synonymous with a complete background check. In other words, even if the verification process gets the age part of the process right, that tells us little else about the person being verified.

Is a Grave Threat to Privacy: Mandatory age verification is dangerous because it would require that even more personal information (about kids, no less) be put online at a time when identity theft and privacy violations continue to be a major concern.

Will Seriously Misallocate Resources: Devising and enforcing age verification regulations might also divert valuable time and resources that could be better used to focus on education and awareness-building efforts, especially K-12 online safety and media literacy education. Moreover, it might divert law enforcement energy and resources away from policing serious crimes or more legitimate threats to children.

582

See Adam 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.





C. Wrong Solution: Extensive Data Retention Mandates

Internet service providers, search engine providers, and many other interactive digital service providers and website operators routinely collect data about online activities. They use this information for a variety of purposes, but they usually do not release it publicly or to government officials. And much, if not all, of this information is eventually discarded.

Many lawmakers argue that data

about subscribers or consumers should be retained for much longer periods to aid law enforcement efforts. State AGs and federal and state law enforcement officials are increasingly argue for extensive data retention mandates to better monitor online networks and websites for potentially criminal activity. These officials contend that such mandates will help them track child pornography or child predators, as well as potential terrorist activities.

In 2006, members of Congress583 and officials at the Justice Department584

floated new proposals that would have required ISPs and others (including search engines and social networking sites) to retain data on their customers and traffic flows for long periods (typically between six months and three years, if not longer). These proposals mimic data retention laws that have been implemented in the European Union.585

The Two Sides

It is importation to step back and consider this issue from two very different perspectives. On one side, we have law enforcement officials telling us that data retention is an essential tool for tracking down bad guys (namely, terrorists and child predators) in our modern world of digital communications. In essence, imposing extensive record-keeping requirements on ISPs and others would create massive databases on end-user activities and traffic flows. Those records could later be searched

583

Declan McCullagh, Congress May Consider Mandatory ISP Snooping, CNET News.com, April 28, 2006, http://news.com.com/Congress+may+consider+mandatory+ISP+snooping/2100-1028_3-6066608.html?tag=nl

584 Declan McCullagh, Gonzales Pressures ISPs on Data Retention, CNET News.com, May 26, 2006, http://news.com.com/2100-1028_3-6077654.html

585 Jo Best, Europe Passes Tough New Data Retention Laws, CNET News.com, Dec. 14, 2005, http://news.com.com/Europe+passes+tough+new+data+retention+laws/2100-7350_3-5995089.html?tag=nl

How much innocent activity or speech will be monitored by

companies or the government during this process? How much information is being collected overall? Where is it all being

stored? Is it secure?










http://news.com.com/Congress+may+consider+mandatory+ISP+snooping/2100-1028_3-6066608.html?tag=nl

http://news.com.com/Congress+may+consider+mandatory+ISP+snooping/2100-1028_3-6066608.html?tag=nl

http://news.com.com/2100-1028_3-6077654.html

http://news.com.com/Europe+passes+tough+new+data+retention+laws/2100-7350_3-5995089.html?tag=nl

http://news.com.com/Europe+passes+tough+new+data+retention+laws/2100-7350_3-5995089.html?tag=nl



to determine if criminal activity had been plotted or carried out. For example, who did Terrorist Suspect X communicate with over a two-year period? Or how many youngsters did Suspected Pedophile Y attempt to communicate with over the past year? And so on.

On the other side, there are those who are concerned about ISPs becoming “watchdogs” that are essentially deputized by the state to police private networks for various activities.586 Will the deputization of the middleman only require them only to assist in the pursuit of terrorists and child predators, or will it grow to encompass much more activity that government officials might want monitored? Even if it does not, how much innocent activity or speech will be monitored by companies or the government during this process? How much information will be collected overall? Where will it all be stored? Will it be secure? And there are a host of other privacy-related concerns one could think of.

A Bit of Ancient History

To understand where the government is coming from and why it is asking for this authority, it is important to recall how this process worked in the past. Back in the days of a regulated communications monopoly, the monopolist (namely, the old AT&T) was willing to comply with whatever the government demanded on these matters because (a) cost recovery was possible or even guaranteed through rate-of-return regulatory proceedings, and (b) it was more commonly understood that this was part of the regulatory compact or quid pro quo. Indeed, if you go back and read cold war-era histories that incorporate a communications component, you will discover how AT&T bent over backward to cooperate with federal officials on these matters. And it was an open secret that top AT&T engineers and government officials often worked together on network surveillance or data retention. (Indeed, AT&T officials would occasionally move in and out of government positions at the National Security Agency or other law enforcement or surveillance agencies).

But the world has changed since then and the communications industry has

expanded to include more companies, sectors and technologies. Thus, even if the government can demand that telecom companies like AT&T, Qwest, and Verizon retain all the information government wants collected, how far does that really get them? What about Comcast, Time Warner, Cox, Google, Yahoo!, Microsoft, eBay, MySpace, Facebook, Live Journal, and the countless other companies that move or retain data about users or customers? And what about offshore sites that carry Internet traffic?

A More Balanced Approach

In other words, government still wants to play the game the old way, but now must contend with dozens (and potentially hundreds) of stakeholders instead of one big communications monopoly. That is what makes this issue so challenging today. The

586

Declan McCullagh, Your ISP as Net Watchdog, CNET News.com, June 16, 2005, http://news.com.com/Your+ISP+as+Net+watchdog/2100-1028_3-5748649.html?tag=nl

http://news.com.com/Your+ISP+as+Net+watchdog/2100-1028_3-5748649.html?tag=nl



government has legitimate national interests here, but that does not mean it should be able to impose massive unfunded mandates on everyone to accomplish those goals.

The better approach would be limited, targeted data preservation requirements. Specifically, the government should be able to ask an ISP (or any other Internet company) to retain data but:

only through a well-established judicial subpoena process;

only for specific individuals who officials have probable cause to believe are engaging in illegal activities (terrorism, child porn, etc.); and,

only for a limited period (officials should seek additional subpoenas for extended data retention).

There is a significant difference between this type of data preservation policy and the sweeping data retention mandates many lawmakers are proposing today, which would require ISPs and other Internet companies to retain massive amounts of customer data for an extended period. Moreover, it’s unclear where companies would even store all the information that government wants them to collect. After all, we are potentially talking about terabytes or even petabytes of daily data traffic flows that would have to be stored in server farms as tall as skyscrapers.

This raises some serious concerns about who should have access to such data

and how those parties would protect all that information from unauthorized uses. As John Morris, a lawyer with the Center for Democracy and Technology, notes, “If Congress were to require ISPs to retain extensive amounts of data, such databases would be gold mines for abuse, including unwanted marketing and identify theft.” Morris argues that “a broad range of other prosecutors, divorce lawyers, advertising executives, and hackers would misuse the data.”587 John D. Ryan, chief counsel of compliance and investigations for AOL, points to additional concerns:

[A] careful assessment of these proposals will show that they are in fact counterproductive and the efforts to create this massive and costly database will fall far short of its intended goal. Warehousing of data requires the allocation of enormous resources to maintain and secure that data. Those resources would be better focused on supporting law enforcement in the investigation of real-time active cases. Additionally, creating such a voluminous database will actually frustrate law enforcement’s goal of locating and identifying the suspects they are pursuing. As databases grow in size and complexity the risk of data

587

Quoted in Are More Laws Needed to Protect Kids Online, Wall Street Journal Online, Nov. 10, 2006, http://online.wsj.com/public/article/SB116299783252817209-lqXuBka9GdpFDf3LJtAdvnYbpfQ_20061209.html?mod=tff_main_tff_top

http://online.wsj.com/public/article/SB116299783252817209-lqXuBka9GdpFDf3LJtAdvnYbpfQ_20061209.html?mod=tff_main_tff_top

http://online.wsj.com/public/article/SB116299783252817209-lqXuBka9GdpFDf3LJtAdvnYbpfQ_20061209.html?mod=tff_main_tff_top



corruption increases as well. As a result, the possibility of not finding the requested information increases as does the potential for a false match.

Finally, even the best efforts at creating these massive databases are destined to fall short of their desired goal because they are easily circumvented. There are thousands of Internet access points that would not be covered by this data retention net, including universities and other academic institutions, libraries, governments, the military, employers, and tens of thousands of wireless hotspots. A determined predator need only utilize one of these services to avoid the net.588

Incidentally, almost everyone in the Internet and communications industry has already said they can live with the targeted data preservation approach outlined above. Indeed, companies already retain data upon request in this fashion. ISPs, social networking site operators, and most other Internet operators will retain data for as long as government wants if law enforcement officials come to them with a specific request about a problematic user. Federal law already requires Internet providers to retain data for up to 90 days upon request from law enforcement and also report any child pornography they discover to the National Center for Missing and Exploited Children so they can work with law enforcement officials to investigate. This is a much more sensible approach to the problem than the sort of blanket (and unfunded) data retention mandates some lawmakers are currently proposing.

D. Wrong Solution: Increased Intermediary Liability

Some academics and lawmakers have flirted with the idea of addressing online safety problems by “deputizing the middleman” through increased liability for online intermediaries. In theory, hanging the threat of greater legal liability over the necks of online sites and networks might encourage them to take steps to somehow address the situation. However, Section 230 of the Communications Decency Act currently grants online intermediaries such as website operators and ISPs broad immunity from suit for third-party content for which they might otherwise have been liable as a publisher under traditional tort law.589 Some are already calling on Congress to reopen, revise, or repeal this immunity to provide a civil remedy to victims of cyberbullying or cyberharassment.590

588

John D. Ryan, Making the Internet Safe for Kids: The Role of ISPs and Social Networking Sites, Testimony before the House Committee on Commerce and Energy, Subcommittee on Oversight and Investigations, June 27, 2006, at 6, http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Ryan.pdf

589 See generally Adam Thierer & John Palfrey, The Future of Online Obscenity and Social Networks, Ars Technica, March 5, 2009, http://arstechnica.com/tech-policy/news/2009/03/a-friendly-exchange-about-the-future-of-online-liability.ars

590 See Andrew LaVallee, What to Do About Cyberbullying? Wall Street Journal, May 12, 2009, http://blogs.wsj.com/digits/2009/05/12/what-to-do-about-cyberbullying.

http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Ryan.pdf

http://arstechnica.com/tech-policy/news/2009/03/a-friendly-exchange-about-the-future-of-online-liability.ars

http://arstechnica.com/tech-policy/news/2009/03/a-friendly-exchange-about-the-future-of-online-liability.ars

http://blogs.wsj.com/digits/2009/05/12/what-to-do-about-cyberbullying/



One proposal would create a “notice and take-down” scheme like that for copyright infringement under the Digital Millennium Copyright Act (DMCA). If an online intermediary refuses to take down cyberbullying material after receiving “actual notice” that the material constitutes cyberbullying, it could be held liable under tort law.591 This proposal is, in fact, simply a narrow application of proposals to create such “qualified immunity” for online defamation.592 But imposing qualified immunity on Internet intermediaries for cyberbullying is especially problematic because cyberbullying is likely to be even more difficult to identify than defamation. Cyberbullying, like all forms of harassment, is not just an isolated offense, as defamation can be; instead, it requires a course of conduct or “repeated” acts (as required by the Sánchez bill). This evidentiary requirement generally helps courts to distinguish between genuine harassment and constitutionally protected speech, but it may make it more, not less, difficult for an intermediary to decide whether to take down material that allegedly constitutes cyberharassment, since the intermediary would have to evaluate a range of material, which might be on other sites. This, in turn, makes it even more likely that intermediaries who receive cyberbullying notices will simply take down any material complained about, including material that is clearly constitutionally protected. Thus, a “notice and takedown” regime for cyberbullying could be a sword against free speech rather than a shield against genuine cyberbullying. Joan Lukey—a partner at Ropes & Gray, soon-be-president of the American College of Trial Lawyers and herself a victim of cyberstalking—has proposed to require intermediaries to take down harassing, stalking or defamatory material upon notice by a plaintiff, but only after a lawsuit has been filed and an appropriate court order has been issued.593 While this approach is less drastic, the details of Lukey’s legislation remain unclear. The downside with this approach is that the only victims of such harm who would be able to seek resolution are those who can afford an attorney. Importantly, however, the most popular sites for children and teens, including MySpace and Facebook already have excellent Terms of Use policies that prohibit harmful speech and complaint procedures that result in the take down of material that breaches these terms of use and other sanctions on users. Generally speaking, however, the threat of liability should not be used to accomplish this goal, as it would

591

Bradley A. Areheart, Regulating Cyberbullies Through Notice-Based Liability, Yale Law Journal Pocket Part, Vol. 117, 2007, http://ssrn.com/abstract=1081634.

592 See generally Adam Thierer, Emerging Threats to Section 230, Technology Liberation Front Blog, May 14, 2009, http://techliberation.com/2009/05/14/emerging-threats-to-section-230

593 Brian Baxter, Tormented By Cyber-Stalker, Ropes Partner Drafts New Legislation, April 17, 2009, http://amlawdaily.typepad.com/amlawdaily/2009/04/ropes-gray-partner-fights-cyberstalker.html.

http://ssrn.com/abstract=1081634

http://techliberation.com/2009/05/14/emerging-threats-to-section-230/

http://amlawdaily.typepad.com/amlawdaily/2009/04/ropes-gray-partner-fights-cyberstalker.html



force the online intermediaries to take sweeping steps to address the issue that could massively chill online speech and threaten the viability of smaller site operators. E. Right Solutions: Education, Empowerment, and Enforcement

The best way to deal with concerns about online child safety is through a “3-E Solution,” which stands for “education, empowerment, and enforcement.”594 The empowerment and education components have already been discussed extensively in previous sections of this report. But, to reiterate, it is essential that parents take steps to mentor and monitor their children as they enter the world of cyberspace. In addition, industry should empower parents with more and better tools to help them do that job. The tools discussed throughout Section III provide a great deal of assistance already.

As Section IV made clear, education is even more important. “You need to take a holistic approach” to such problems, notes Ron Teixeira, former executive director of the National Cyber Security Center.”595 Teixeira argues it is essential that we drill basic lessons into our children—the digital equivalent of “don’t take candy from strangers,” for example—to ensure they are prepared for whatever technologies or platforms follow social networking sites.596 “Education is the way you teach children to be proactive, and that will stay with them forever,” he rightly concludes.597 As Parry Aftab of Wired Safety argues, it’s about teaching our kids to “use the filter between their ears” and “make responsible decisions about their use of technology.”598 Critical thinking, in other words, is the best form of self-protection.

594

Adam Thierer, Child Protection and the Internet: The ‘3-E’ Solution (Empower, Educate & Enforce),” Submission to the Advisory Committee of the Congressional Internet Caucus, 2006, www.netcaucus.org/books/childsafety2006/pff.pdf

595 Quoted in Anick Jesdanun, Age Verification at Social-Network Sites Could Prove Difficult, Associated Press Financial Wire, July 14, 2006.

596 Id. Similarly, online safety expert Nancy E. Willard argues: “With the expanded ability to meet and interact with new people online comes the need for a new skill—online stranger literacy. Online stranger literacy is the ability to determine the trustworthiness and safety of individuals who are unknown in person, with whom one is communicating online. It is the ‘people’ equivalent of information literacy.” Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), at 120.

597 Id.

598 Parry Aftab, Filing in COPPA Rule Review 2005, before the Federal Trade Commission, June 27, 2005, at 4.

The best way to deal with concerns about online child safety is through a “3-E Solution,” which stands for “education, empowerment, and

enforcement.”


enforcement.”


enforcement.”


enforcement.”

http://www.netcaucus.org/books/childsafety2006/pff.pdf



As will be discussed next, the final “E” in the 3-E Solution is enforcement, as in stepped up law enforcement efforts to find and adequately prosecute child predators. Getting Sentencing Right

The most essential role that government has is to protect people from harm, especially helpless kids. It is not the job of private companies to enforce law and order or bring criminals to justice; that is the government's job. Unfortunately, our government is not doing a very good job of it when it comes to online child safety.

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.599 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 bad guys and lock them up for a long, long time.

Consider a startling October 2006 special report by Wired reporter Kevin Poulsen.600 In his article, Poulsen explained how he helped New York law enforcement officials track down and apprehend a sex offender by writing a program that searched MySpace’s member profiles for registered sex offenders. Here is what was shocking about the specific perpetrator that they nabbed, a 39-year-old man named Andrew Lubrano:

Lubrano was sentenced to three years probation in 1987 for sexual abuse against a 7-year-old boy, according to police. In 1988, he got another probation term for second-degree sex abuse. In 1995, he earned a 3 to 9 year prison term for sexually abusing two boys he'd been babysitting, one 11, the other 9. The parole board turned Lubrano down three times, and he was cut loose in September

599

U.S. Department of Justice, Office of Justice Programs, 5 Percent of Sex Offenders Rearrested for Another Sex Crime within 3 Years of Prison Release, Nov. 16, 2003, www.ojp.usdoj.gov/bjs/pub/press/rsorp94pr.htm

600 Kevin Poulsen, MySpace Predator Caught by Code, Wired.com, Oct. 16, 2006, www.wired.com/science/discoveries/news/2006/10/71948

http://www.wired.com/news/technology/0,71948-0.html

http://www.ojp.usdoj.gov/bjs/pub/press/rsorp94pr.htm

http://www.wired.com/science/discoveries/news/2006/10/71948



2004 largely unsupervised, having served every day of his nine-year max. By November 2005 he was on MySpace, making friends.

When this story broke, many critics were quick to jump on MySpace and other social networking sites as the root of this problem. But is the existence of MySpace or other social networking sites really the problem here? Or is it the fact that this child abuser was sitting behind a keyboard when he should have been sitting in a jail cell? Why is it MySpace’s problem to solve instead of the government’s? What is even more troubling is that after letting the child abusers out of jail, governments then expend considerable sums of money and law enforcement resources for “community supervision” and “sex offender registries” to give us a better idea of where all the child molesters live in our neighborhoods. This is of little consolation to most parents who would probably feel much more comfortable having these predators locked up in a prison instead of living somewhere in their communities. What we must ask ourselves as a society is this: With the exception of murder, is there any crime more heinous than child rape or child sexual abuse? If we can agree that sexual abuse of children is indeed that serious, then we ought to be considering sentences that are significantly longer than three to seven years to ensure that convicted child abusers aren’t out on the streets and sitting behind keyboards looking to prey upon children again. In 2006, President Bush signed the “Adam Walsh Child Protection and Safety Act,” which increases mandatory minimum sentences for various crimes against children.601 That is certainly a helpful step in the right direction, but more can be done. And it is important that lawmakers fully fund such initiatives; it’s not enough just to pass well-intentioned laws. In particular, it is essential that law enforcement officials receive the resources and training necessary to adequately monitor online networks for predators and to bring them to justice when they are found.602 For example, law

601

White House, President Signs H.R. 4472, the Adam Walsh Child Protection and Safety Act of 2006, Press Release, July 27, 2006, www.whitehouse.gov/news/releases/2006/07/20060727-6.html

602 Senators John McCain (R-AZ) and Charles Schumer (D-NY) recently introduced legislation, S. 519, that would require all convicted sex offenders to register their e-mail addresses with law enforcement officials so that their online activities could be monitored. The e-mail addresses could also be monitored by social networking sites to ensure that sex offenders were not on those sites. While there

The most essential role that government has is to protect people from harm, especially helpless kids.

It is not the job of private companies to enforce law and order or bring

criminals to justice. That is the government's job.









criminals to justice. That is the

http://www.whitehouse.gov/news/releases/2006/07/20060727-6.html



enforcement agencies need online forensic labs and experts to help investigate online crimes, and they need to be trained to conduct proper sting operations to find predators before they harm our children. As outlined next, industry is already assisting law enforcement officials in this regard.

Industry Assistance and Training for Law Enforcement

Many leading Internet operators provide valuable assistance to law enforcement agencies or partner with law enforcement officials on investigations to help protect children. For example:

AOL: Since 1995, AOL has been working with law enforcement officials to trace and apprehend child predators or child pornographers. AOL was an earlier pioneer of 24/7 law enforcement hotlines and was the first ISP to initiate an Amber Alert program.603 AOL personnel also offer extensive cybercrime, digital evidence, and computer forensic science courses to a wide variety of federal and state law enforcement officers.604 And AOL provides free litigation support and expert witnesses to prosecutors for criminal cases involving records obtained from the company.605

Microsoft: Like AOL, Microsoft sponsors computer forensic and technical training programs for law enforcement officials both here and abroad, and has compliance officers on hand 24/7 to field law enforcement inquiries.606 In 2003, Microsoft developed the Child Exploitation Tracking System (CETS), “an open standards-based software tool that enables law enforcement to better gather and share evidence of online child exploitation over a secure system based on legal agreements in place. CETS permits investigators to easily import, organize, analyze, share and search information from the point of detection through the investigative phase to arrest and conviction.”607

is nothing stopping offenders from changing their e-mails to avoid detection, the legislation also stipulates that any offender caught doing so will be eligible for an additional 10 years of jail time on top of the sentence for any other underlying offense.

603 John D. Ryan, Making the Internet Safe for Kids: The Role of ISPs and Social Networking Sites, Testimony before the House Committee on Commerce and Energy, Subcommittee on Oversight and Investigations, June 27, 2006, at 3-4, http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Ryan.pdf

604 Id., at 4-5.

605 Id., at 5.

606 Philip K. Reitinger, Making the Internet Safe for Kids: The Role of ISPs and Social Networking Sites, Testimony before the House Committee on Commerce and Energy, Subcommittee on Oversight and Investigations, June 27, 2006, at 4-5, http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Reitinger.pdf

607 Id., at 4.

http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Ryan.pdf

http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Reitinger.pdf



Google: Google has a legal team devoted to responding to law enforcement requests for assistance and the company responds to hundreds of subpoenas each year to assist child safety investigations.608 Google strictly prohibits advertising about illegal content in any of its products or sites and encourages users to report any illegal content they encounter to the Google Help Center to ensure that it is immediately passed along to law enforcement officials. It is also worth noting that Google allows other organizations to freely use its Google Maps technology to easily track convicted sex offenders living in their communities. For example, www.mapsexoffenders.com and www.familywatchdog.us both rely on the Google Maps service to trace convicted sex offenders.

Yahoo!: Yahoo! also has a compliance team in place to handle online emergencies 24 hours a day and provides training and assistance to law enforcement officials. Yahoo! created its “Law Enforcement Compliance Manual” to ensure that law enforcement officials know how Yahoo! can assist them in online investigations.609 In particular, Yahoo! provides assistance through the Internet Crimes Against Children (ICAC) task forces, the American Prosecutors Research Institute, and the newly launched Financial Coalition Against Child Porn.

MySpace.com: MySpace has created and widely distributed its “Law Enforcement Officer Guide” that instructs law enforcement agencies on how to work with MySpace regarding subpoenas and requests for information.610

In addition, these companies and many others work closely with the National Center for Missing and Exploited Children (NCMEC) to combat online child pornography or predation in a variety of ways.611 NCMEC has developed a wide variety of excellent resources to teach children about online safety. For example, in 2006 NCMEC partnered with Duracell to create the “Power of Parents” program and website which helps parents teach their kids about both online and offline safety.612 The site offers free

608

Nicole Wong, Making the Internet Safe for Kids: The Role of ISPs and Social Networking Sites, Testimony before the House Committee on Commerce and Energy, Subcommittee on Oversight and Investigations, June 27, 2006, at 5, http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Wong.pdf

609 Elizabeth Banker, Making the Internet Safe for Kids: The Role of ISPs and Social Networking Sites, Testimony before the House Committee on Commerce and Energy, Subcommittee on Oversight and Investigations, June 27, 2006, at 8, http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Banker.pdf

610 www.netcaucus.org/books/childsafety2006/myspace.pdf

611 For more information about what these and other companies are doing to assist law enforcement efforts and officials, see “What ICAC Members Are Doing to Help Protect Children Online,” Internet Caucus Advisory Committee, 2006, http://www.netcaucus.org/books/childsafety2006/

612 www.powerofparentsonline.com

http://www.mapsexoffenders.com/

http://www.familywatchdog.us/

http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Wong.pdf

http://energycommerce.house.gov/reparchives/108/Hearings/06272006hearing1954/Banker.pdf

http://www.netcaucus.org/books/childsafety2006/myspace.pdf

http://www.netcaucus.org/books/childsafety2006/

http://www.powerofparentsonline.com/



storybooks and “teachable moment” manuals to help parents talk to their kids about protecting themselves.613

In May 2007, NCMEC also launched the “Take 25” project to coincide with the 25th anniversary of President Ronald Reagan designating May 25th as “National Missing Children’s Day.”614 NCMEC’s new program encourages families to take 25 minutes to talk with their children about safety and abduction prevention. Dozens of events across the nation were planned to highlight the effort.615

613

www.powerofparentsonline.com/teaching%5Ftools

614 www.take25.org

615 www.take25.org/events

http://www.powerofparentsonline.com/teaching_tools

http://www.take25.org/

http://www.take25.org/events



VI. Conclusion

“Responsibility: A detachable burden easily shifted to the shoulders of God, Fate, Fortune, Luck or one’s neighbor. In the days of astrology it was customary to unload it upon a star.” -- Ambrose Bierce, The Devil’s Dictionary

This study has demonstrated that parents now have multiple layers of protection

at their disposal to shield their children from potentially objectionable media content or to protect them while they are online. These tools include the various content rating and labeling systems, the V-Chip, set-top box parental controls (including gaming console controls), personal video recorders, Internet and mobile media filtering and screening services, monitoring tools, and so on.

Importantly, the many industry-led

educational efforts highlighted here prove that, contrary to what some critics claim, media creators and information distributors are taking steps to help parents make content determinations and better control child access to unwanted media. And, as this report has made clear repeatedly, education is absolutely essential at every point in this process.

Critics can always argue that media, communications, and Internet companies

should “do more” to address the concerns that parents have, but it is important to realize they are already doing quite a bit. Of course, whether parents are taking advantage of those tools and options is another matter entirely. But if, for whatever reason, parents are not taking advantage of these tools and options, their inaction should not be used to justify government regulation as a surrogate for household / parental choice. Parents have been empowered. It is now their responsibility to take advantage of the tools and controls at their disposal to determine what is acceptable in their homes and in the lives of their children. Some media critics and policymakers will continue to have their doubts, however, and claim that the tools are not good enough. Oftentimes this is just an effort to disguise a desire by some to sanitize or even eliminate certain types of speech or artistic expression from society altogether. Other times, however, their concerns are rooted in a heartfelt desire to give parents more tools or information to control potentially objectionable media or keep their children safe from online threats.

Controls and ratings will continue to be refined and improved to satisfy these concerns, and new tools and educational efforts will be developed and deployed.

Parents have been empowered. It is now their responsibility to take

advantage of the tools and controls at their disposal to

determine what is acceptable in their homes and in the lives of

their children.

The best way to deal with concerns about online child safety is

through a “3-E Solution,” which stands for “education,

empowerment, and enforcement.”









Regardless, parents are already being offered an extensive array of empowerment tools to sort and filter content they might find objectionable and to keep their kids safe online. This is being done much more quickly, much more closely tailored to the parents’ own desires, and without the censorship concerns typically associated with government regulatory efforts.

In the extreme, if parents want to take radical steps to limit children’s potential access to objectionable programming, they can get rid of certain media devices altogether or severely restrict the availability of such devices in the home. While impractical for most, some families do reject televisions, for example, and still find many other ways to access important information and entertainment.616 Perhaps most sensibly, parents can always sit down with their children, consume media programming with them, and talk to them about what they are seeing and hearing. For those parents willing to accept the reality that children will be confronted with many troubling or sensitive topics from peers at school or from other sources outside their control, this option makes a great deal of sense. Drs. Lawrence Kutner and Cheryl K. Olson, cofounders and directors of the Harvard Medical School Center for Mental Health and Media, drive this point home in their book Grand Theft Childhood:

No matter how many or what restrictions or controls you may place on your children’s video game play or their access to the Web, odds are that your child will be exposed to the type of material that concerns you, whether it’s violence, sex, radical politics or anything else. Children need the tools and perspective to handle (or ignore) that material.

In fact, focusing exclusively on restricting your children’s access can backfire. The “forbidden fruit” can become more attractive. This is not to say that you should not use the parental controls… but they’re not enough. Children, especially teenagers, need the tools to make informed judgments about media content when you’re not around—no matter what, or how inflammatory, that content may be.617

Most parents already provide such advice and education, of course.618 A recent Kaiser survey of media usage by children under six years of age found that 69 percent of

616

See Rich Karlgaard, Net—One, TV—Zero, Forbes.com, Nov. 29, 2004, www.forbes.com/columnists/business/forbes/2004/1129/041.html

617 Lawrence Kutner and Cheryl K. Olson, Grand Theft Childhood: The Surprising Truth about Violent Video Games (New York: Simon & Schuster, 2008), at 223.

618 Anton Olsen of Wired’s “Geek Dad” blog argues that: “No amount of software, supervision, or training will keep them from seeing something inappropriate for their age. All you can hope to do is delay it. When I took the time to educate my geeklets about “inappropriate” things, they listened close and agreed that if they find something they don't think is appropriate they will hit Home and go back to a nicer site. All my experiences so far indicate the kids are much more interested in playing games than looking at naked pictures. I am sure that at some point their views will change, but with some guidance they may adopt a healthy attitude about these things. If I forbid it, don't talk about it, and

http://www.forbes.com/columnists/business/forbes/2004/1129/041.html



parents were in the room when children were watching TV, for example.619 Additionally, many parents sit with children when they are online or playing games. Those are “teachable moments” during which parents can talk to their children about media, explain right and wrong, separate fantasy from reality, and teach them appropriate online etiquette. At the end of the day, there is simply no substitute for talking to our children in an open, loving, and understanding fashion about the realities of this world, including the more distasteful bits.

Finally, while a certain degree of cultural pessimism is inevitable from one generation to the next,620 parents 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.621 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.”622 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

forbid them from seeing it, then I can only imagine they will be more curious and find ways to see it.” Anton Olsen, Bad Dad: No Net Nanny, Geek Dad, Aug. 5, 2008, http://blog.wired.com/geekdad/2008/08/bad-dad-no-net.html

619 Kaiser Family Foundation, Zero to Six: Electronic Media in the Lives of Infants, Toddlers and Preschoolers, Fall 2003, at 11, www.kff.org/entmedia/entmedia102803pkg.cfm

620 As Tyler Cowen, an economist at George Mason University, has noted:

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. They will react with extreme vigor against forces that counteract such an important part of their life program. The very same individuals tend to adopt cultural pessimism when they are young, and cultural pessimism once they have children. Parents often do not understand the new generation of cultural products and therefore see little or no benefit in their children’s interest in them.

Tyler Cowen, In Praise of Commercial Culture (Cambridge, MA: Harvard University Press, 1998), at 185. 621

“Throughout American history, adults have attributed undesirable changes in youth behavior to some aspect of popular culture.” Bradford W. Wright, Comic Book Nation: The Transformation of Youth Culture in America (Baltimore, MD: The John Hopkins University Press, 2001), at 87.

622 Margaret A. Blanchard, The American Urge to Censor: Freedom of Expression Versus the Desire to Sanitize Society—From Anthony Comstock to 2 Live Crew, 33 William and Mary Law Review, Spring 1992, at 743.

What is needed is a measured and balanced approach to children’s exposure to media content and

online interactions. All-or-nothing extremes are not going to work.




http://blog.wired.com/geekdad/2008/08/bad-dad-no-net.html




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.”623

What is needed, therefore, is a measured and balanced approach to children’s

exposure to media content and online interactions. All-or-nothing extremes are not going to work. In particular, fear-mongering is not the answer. “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.624 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.”625

In sum, it’s about parental responsibility and rational, measured responses. And

now that we have been better empowered to take responsibility for the media in our lives and the lives of our children, we cannot blame “God, Fate, Fortune, Luck,” or even the government for our own failures to be good stewards for our children.

623

Quoted in Nancy Gibbs, Being 13, Time, Aug. 8, 2005, at 43.

624 John Palfrey and Urs Gasser, Born Digital: Understanding the First Generation of Digital Natives (New York: Basic Books, 2008), at 9.

625 Id., at 10.



VII. About the Author

Adam Thierer is a Senior Fellow at The Progress & Freedom Foundation (PFF) and the Director of PFF’s Center for Digital Media Freedom (CDMF). As Director of the CDMF, Thierer analyzes public policy developments that impact the economic and social aspects of the media industry, including related First Amendment issues. Prior to joining PFF in 2005, Thierer was Director of Telecommunications Studies at the Cato Institute and a Fellow in Economic Policy at The Heritage Foundation. His work on communications, high-technology, and media policy has been featured in The Wall Street Journal, The Washington Post, The New York Times, USA Today, Forbes, The Economist, Newsweek, and numerous other media outlets. He also writes regularly for The Technology Liberation Front blog. Thierer is the author or editor of seven books on media regulation and child safety issues, mass media regulation, Internet governance, intellectual property, regulation of network industries, and the role of federalism within high-technology markets. Thierer has served as a member of Harvard Law School’s Internet Safety Technical Task Force as well as a Blue Ribbon Working Group on child safety organized by Common Sense Media, the iKeepSafe Coalition, and the National Cable & Telecommunications Association. He also serves on the National Telecommunications and Information Administration’s Online Safety and Technology Working Group. In 2008, he received the Family Online Safety Institute’s “Award for Outstanding Achievement.” He is also an advisor to the American Legislative Exchange Council's Telecom & IT Task Force. Thierer earned his B.A. in journalism and political science at Indiana University, and received his M.A. in international business management and trade theory at the University of Maryland. He lives in McLean, VA with his wife and two children.



VIII. Appendix: Thoughts on Mandatory Controls, Restrictive Defaults and “Universal” Ratings

In late 2008, Congress passed, and President George Bush signed, the “Child Safe Viewing Act of 2007.”626 Section 2(a) of the Child Safe Viewing Act required that the Federal Communications Commission (FCC) shall examine “the existence and availability of advanced blocking technologies that are compatible with various communications devices or platforms.” Section 2(b) required the Commission to specifically consider blocking technologies that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” In March 2009, the FCC released a Notice of Inquiry627 asking the public for comment in the matter. It is apparent from the language of the Child Safe Viewing Act as well as the Commission’s Notice628 that Congress and the Commission are both interested in finding more “universal” solutions to parental control concerns. This desire is entirely understandable. It would be wonderful if parental control and child safety tools could be simplified—perhaps even unified under one rating system or technological blocking device—to give parents more control over the content and communications their children might experience. Ultimately, however, the search for technological silver-bullet solutions and “universal” ratings or controls represents a quixotic, Holy Grail-like quest. Simply stated, if it sounds too good to be true, it probably is. There are no simple solutions or quick fixes to concerns about objectionable media content or online child safety. Only a “layered” approach—involving many tools, methods, and strategies—can get the job done right. And technological blocking controls are probably the least important part of that mix. Education and mentoring are far more important. Moreover, for the reasons stated below, any move to force “universal,” top-down solutions could destroy future innovation in this space.629 This appendix will

626

Child Safe Viewing Act of 2007, S. 602, P.L. 110-452, 122 Stat. 5025, Dec. 2, 2008 (hereinafter Child Safe Viewing Act).

627 Federal Communications Commission, Notice of Inquiry In the Matter of Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, FCC 09-14, MB Docket No. 09-26, March 2, 2009 (hereinafter FCC, Child Safe Viewing Act Notice).

628 Commenting on the language from Section 2(a) and 2(b) of the Child Safe Viewing Act, the Commission argues that, “This language makes it clear that we are to consider blocking technologies appropriate for use on a variety of devices that transmit audio and video programming.” FCC, Child Safe Viewing Act Notice at ¶7.

629 “Assuming arguendo that it is even possible to coalesce all stakeholders around a non-existing and speculative universal content blocking technology, the incentive to innovate could be diminished.” Reply Comments of the Consumer Electronic Association, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No.



discuss the unforeseen downsides to mandating controls and defaults as well as efforts to create universal rating or labeling schemes. A. Why Mandatory Controls or Defaults Will Backfire

During ongoing debates about parental controls, ratings, and online child safety, there have occasionally been rumblings about the possibility of requiring that media, computing and communications devices: (1) be shipped to market with parental controls embedded, and possibly, (2) those controls being defaulted to their most restrictive position, forcing users to opt-out of the controls later if they wanted to consume media rated above a certain threshold. Imagine, for example, a law requiring that every television, TV set-top box, and video game console be shipped with on-board screening technologies that were set to block any content rated above the most general ratings (“G” for movies, “TV-Y” for television, or “E” for video games); this requirement would constitute the most restrictive default for each type of media. Similarly, all personal computers or portable media devices sold to the public could be required to have filters embedded that were set to block all “objectionable” content, however defined. If “default” requirements such as this were mandated by law, parents would be forced to opt-out of the restrictions by granting their children selective permission to media content or online services. In theory, this might help limit underage access to objectionable media or online content. Such a mandate might be viewed as less intrusive than direct government censorship and, therefore, less likely to run afoul of the Constitution. For these reasons, such a proposal would likely have great appeal to some policymakers, family groups, child safety advocates, and parents. But mandating parental controls and restrictive defaults is a dangerous and elitist idea that must be rejected because it will have many negative unintended consequences without being likely to achieve the goal of better protecting our kids. You Can Lead a Horse to Water, But You Can’t Make It Drink One of the enduring mysteries about parental controls is why many parents do not take advantage of the tools and options at their disposal. It’s the proverbial “you can lead a horse to water, but you can’t make it drink” problem. There are a few reasons why this may be the case.630

09-26, May 18, 2009, at 15, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520216902

630 This section is adopted from: Adam Thierer, The Progress & Freedom Foundation, The Perils of Mandatory Parental Controls and Restrictive Defaults, Progress on Point 15.4, April 11, 2008, www.pff.org/issues-pubs/pops/pop15.4defaultdanger.pdf


http://www.pff.org/issues-pubs/pops/pop15.4defaultdanger.pdf



As discussed in Section I, many households may not take advantage of parental control tools because they instead rely on a variety of non-technical “household media rules.” Moreover, as shown in Section III.A, technical controls and rating systems are viewed as unnecessary in many homes where kids are below or above a certain age. Many parents of children under 4 or 5 years of age, for example, do not let their kids consume much media, or they at least exercise much tighter control over their children’s media consumption habits. And after kids reach their mid-teen years, many parents eschew technical controls because they either trust their kids, or better yet, they constantly talk to them about media content and their online experiences. Of course, it could also be the case that some parents do not use technical controls or rating systems because they find them too confusing. That may be true to some extent, but it is important to note that these controls and rating systems are becoming increasingly easy to use. Most parental control tools are just one or two clicks away on most TVs, gaming systems, or personal computers. And although there are different rating schemes for different forms of media, those rating systems share much in common and are all quite descriptive. Setting up parental controls is certainly no more difficult now than programming a personal video recorder or uploading digital photographs to the Internet. Finally, it may be the case that some parents are simply not aware of the controls or ratings. This too, however, is increasingly unlikely. Survey data suggests a growing familiarity with most rating systems (some more than others). Companies and non-profit organizations are increasingly offering more information and tutorials along with the parental control tools that are typically embedded, free-of-charge, in almost all modern media devices. In any event, the answer to concerns about insufficient parental awareness is not imposing restrictive mandatory defaults but, as I explain below, increased educational efforts. Still, for whatever reason, many parents are not using parental controls or rating systems and, at the same time, many feel or express some concerns about being able to manage media use by their children. Regardless of the culprit—and it could be a combination of all of the factors listed above—what more could be done to encourage these parents to use existing technical controls and rating systems to limit children’s access to potentially objectionable content or communications? There are two general options. One way to increase parental comfort levels is through better education and awareness-building initiatives. Many companies already offer detailed information and tutorials along with the parental control tools they offer, but more could always be done to promote awareness of the tools and how to use them. Many parents may feel they cannot effectively manage media use in their homes because they are unaware of their options or unsure how to utilize the available tools.



One sensible first step is the inclusion of easy-to-understand instructions in all user manuals. “Tip sheets” could also be bundled along with the products, which provide a summary of how set up parental controls, or what relevant ratings meant. Most vendors already offer this and much more on their websites, but sometimes the links to those pages can be difficult to find. All media companies should consider placing clearly labeled links on their websites to guide visitors to parental controls, ratings information, or online safety tips. Finally, customer support hotlines—whether automated and human-based—could probably be improved and expanded. Again, most companies are already moving in this direction today. It’s simply a smart business practice since many parents increasingly expect such services to be available. To the extent some companies aren’t keeping up, others—policymakers and child safety groups, in particular—are increasing putting pressure on them to provide such tools and assistance. The second approach to encouraging more widespread use of parental controls and rating systems would involve the sort of legal mandates described above. Presumably, this would require a law or regulation that would: (1) spell out what sort of controls or filters would be embedded in every “media or computing device” and then, (2) determine how restrictive the default control settings would be before the hardware or software in question was marketed. In essence, this would be a mandatory “opt-out” regime for parental controls/filters. The first portion of the mandate is largely unnecessary, as almost all major media devices marketed today already contain some kind of parental controls: All TVs include V-chips, all set-top boxes include additional TV screening controls, and all video game consoles include blocking tools for both games and movies. With PCs, filters and monitoring tools have been made ubiquitously available by ISPs and non-profits for little or no charge, and newer operating systems such as Windows Vista include powerful parental control tools. Importantly, almost all of these tools are free-of-charge. A variety of supplementary tools can be purchased online or from electronics retailers or computer stores. As a general matter, moreover, it is rarely sound public policy to have governments—rather than markets—select a particular technology or service as a mandatory feature. This risks locking in less effective technologies and perhaps also creating financial windfalls for well-connected vendors of such technologies. The real debate, then, comes down to the question of how effective those embedded controls are at meeting the interests of parents, and whether the embedded controls should have pre-established defaults set to the most restrictive setting available before they are shipped or downloaded. Of course, any company could voluntarily offer such an alternative today. It’s worth asking, therefore, why are no companies currently doing so?



Enforcement Hassles There are many reasons why no media or communications companies are currently offering such maximally restrictive defaults when they ship their products to market. Those reasons are instructive when considering the wisdom of mandating that such defaulted controls be mandated by law. To begin, there’s just not as much demand for this as some might think. Again, not all homes have children in them. And, in those that do, not all those parents see the need to use parental controls or ratings, usually because they rely on household rules or tightly monitor or restrict access to media and communications devices. Moreover, because there are many adults who purchase media devices for their own use, it would be illogical to ship all devices or products to market with the controls set to the most restrictive setting.631 In fact, many consumers (even some who are parents themselves) would likely find it annoying, and perhaps even somewhat insulting, to be forced to opt-out of such controls when they purchase new media hardware or software. And it’s likely that as soon as such devices or services hit the market, consumer complaint hotlines would light up like Christmas trees due to calls from irate users griping about what they imagine to be defective hardware or software. Could companies offer multiple versions of their hardware or software products to solve this problem? For example, some set-top boxes, gaming consoles, and PCs could be sold and labeled as “Kid-Friendly” (or “locked”) while others are “Adult-Only” (or “unlocked”). It goes without saying that this would represent a major expense to many vendors (especially hardware vendors). It could also create potential confusion when the devices are labeled and marketed for sale. And what would the penalty be for a mislabeled device, or the accidental sale of such a device to a minor? Perverse Incentives and Possible Evasion It may be that there is a market for such “kid-friendly” devices or services. There are, for example, some wireless device and service options designed for kids that have limited features, or some toy (and toy-like) devices that have filters on by default, or only work with certain age-appropriate internet services. Many social networking services designed for kids have strict settings on by default. These may well be fantastic choices for some parents and kids. But whether that is the case seems to be best determined by the market. Particularly for mass-market general use devices like PCs and televisions, mandating the offering of dual versions (“locked”/“kid-friendly” and “unlocked”) seems

631

This is true even for video game consoles. For example, according to a survey by Hart Research, the average age of a video game purchaser is 40. See Entertainment Software Association, Essential Facts about the Computer and Video Game Industry: 2006 Sales, Demographics and Usage Data, 2005, at 3, www.theesa.com/archives/files/Essential%20Facts%202006.pdf

http://www.theesa.com/archives/files/Essential%20Facts%202006.pdf



likely to create perverse incentives, both for consumers and for media and technology providers. If services and devices are sold with the highest levels of restrictions active by default, many parents might seek to avoid the annoyance associated with the “kid-friendly” versions of the device and just purchase “unlocked” hardware or software. And kids would likely get quickly to work cracking the defaults on the kid-friendly versions of the hardware or software.632 The result would be some significant degree of consumer dissatisfaction with restrictive-default services and, except perhaps in the case of households with very young children, dissatisfaction with locked/kid-friendly services and devices. Among the possible consequences of such a dual version mandate would be a perverse incentive for service providers and device makers to avoid investing in parental control tools. If setting controls to the highest default level is mandatory, but at the same time most consumers don’t prefer that default level, some consumer backlash is inevitable. And when consumers are unhappy about a service feature—but companies are not permitted to address that unhappiness by turning off the higher settings—a likely result could be for companies to weaken or even not offer parental controls altogether. There are other problems involved in enforcing such a mandate. Regulators would need to grapple with the possibility of widespread evasion in terms of offshore sales and black market devices. For example, would it be illegal for an eBay vendor located in Hong Kong to sell a U.S.-based customer an “unlocked” PlayStation Portable without first verifying that they are indeed an adult? If so, that’s another layer of regulation that needs to be considered in terms of online age verification.633 Of course, governments could forbid the development of “unlocked” devices or software and mandate that every media or computing device sent to market had defaults set to maximum restrictiveness. Even assuming such rules would not run afoul of international trade law, many of the same problems would still develop, however. It would likely be difficult to stem the flow of illegal devices or software, and hackers would likely only work harder to defeat existing controls. And what about all the existing “unlocked” devices already on the market? This mandate might breathe new life into older devices and discourage some consumers from making the jump to new hardware and software that includes superior parental control tools.

632

Witness what happened in Australia within a few days of the government releasing subsidized filtering software. A 16-year old Melbourne schoolboy cracked the Australian government’s $84 million internet porn filter in just over 30 minutes. See Nick Higginbottom and Ben Packham, “Student Cracks Government’s $84m Porn Filter,” News.com.au, Aug. 26, 2007, www.news.com.au/story/0,23599,22304224-2,00.html

633 Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, March 21, 2007, www.pff.org/issues-pubs/pops/pop14.5ageverification.pdf

http://www.news.com.au/story/0,23599,22304224-2,00.html





A final enforcement question relates to how broadly “media devices” are defined for purposes of this mandate. TVs, set-top boxes, gaming consoles and PCs would all be covered, of course. But what about mobile phones, iPods, MP3 players, PlayStation Portables and GameBoys, and so on? If “media devices” is defined broadly enough, it would bring an unprecedented array of consumer electronic devices and communications technologies under the purview of the FCC. Each class of devices would likely have its own set of enterprising hackers and renegade device makers, eager to evade the mandates. Presumably, financial penalties would be required and various enforcement actions would be sanctioned in an attempt to thwart such activity. Finally, as a result of these new mandates, the prices of all the affected media devices would likely rise for consumers. Unintended Consequences and Constitutional Concerns A proponent of mandatory defaults might object that regulation is often difficult, even expensive, but we still find ways to enforce many other laws—if only to try to teach the public, or kids, a lesson. In this case, some slippage in the system might be viewed as an acceptable trade-off for increased awareness among some parents about parental control tools or potentially objectionable media content or forms of online communications. But this mentality myopically ignores the many unintended consequences of such a regulatory regime. The fundamental problem with a mandate of this sort is that, while well-intentioned, it threatens to upset the current balance of things and could leave parents and their children less well off. As explained throughout this report, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal for controlling their children’s media consumption. Indeed, on the whole, parents are gaining control, not losing it, with technological innovation. It would be foolish, however, to think that this trend might not be slowed, or even reversed, by misguided public policy prescriptions. One of the most unfortunate consequences of mandatory defaults would be lulling some parents into a false sense of security: If parents came to believe that, because a filter was installed, they need do nothing more to help their children go online safely, or to remain engaged in their children’s media consumption, that would be an extremely troubling outcome. Moreover, as was noted above, a rule mandating restrictive parental control defaults might create perverse incentives for industry to not rate content or build better controls at all. After all, it is important to remember that the ratings and controls that government is seeking to regulate here are voluntary and private; there is no reason they couldn’t be abandoned tomorrow. Of course, if they were abandoned that might lead to calls for government intervention or regulation and the substitution of some sort of universal ratings regime for the voluntary systems that exist today. If that occurred, lawmakers would be likely pressured into either making content-based determinations



or mandating that a private organization do the same thing; either response would likely run afoul of the First Amendment. But even if voluntary rating systems remained in place as the basis of a new federal enforcement regime, there are some constitutional issues in play here. Namely, it would be unconstitutional for government to enshrine a private ratings scheme into law or use it as a trigger for legal liability. That is what several courts have held in past years after some state and local governments attempted to enact laws or ordinances based upon the MPAA’s voluntary movie ratings system. For example, in Borger v. Bisciglia a U.S. District Court held that “*A+ private organization’s ratings system cannot be used to determine whether a movie receives constitutional protection.”634 Similarly, in Swope v. Lubbers, the court held that “*t+he standards by which the movie industry rates its films do not correspond to the… criteria for determining whether an item merits constitutional protection or not.”635 Roughly a dozen court cases have come to largely the same conclusion: Government cannot co-opt a voluntary, private ratings system for its own ends.636 Recent video game cases have reached similar conclusions.637 Thus, a law mandating parental control defaults based on voluntary ratings systems will likely end up in court and become the subject of another protracted legal battle between government and industry. Are Mandatory Default Really Necessary? Finally, it’s worth noting that most media, communications, and computing devices cost substantial sums of money. Televisions, movies, video games, cell phones, MP3 players, computers, and so on, do not just drop from high-tech heaven into our kids’ laps! When our kids want those things—or want things that are advertised on those media platforms—they must come to parents and ask for money (usually a lot of it). As Section II.E notes, this “power of the purse” is, in many ways, the ultimate parental control tool. If parents are shelling out money for such devices, they are presumably also in a good position to set some rules about the use of those devices once they are brought into the home. Whether those rules take the form of informal household media rules or technical parental controls is, ultimately, a decision that each

634

Borger v. Bisciglia, 888 F. Supp. 97, 100 (E.D. Wis. 1995).

635 Swope v. Lubbers, 560 F. Supp. 1328, 1334 (W.D. Mich. 1983).

636 Interstate Circuit v. Dallas, 390 U.S. 676 (1968); Drive in Theaters v. Huskey, 305 F. Supp. 1232 (W.D.N.C. 1969); Engdahl v. City of Kenosha, 317 F. Supp. 1133 (E.D. Wis. 1970); Motion Picture Association of America v. Specter, 315 F. Supp. 824 (E.D. Pa. 1970); State v. Watkins, 191 S.E. 2d 135 (S.C. 1972); Watkins v. South Carolina, 413 U.S. 905 (1973); Potter v. State, 509 P.2d 933, (Okla. Ct. Crim. App. 1973); Neiderhiser v. Borough of Berwick, 840 F.2d 213 (3d Cir. 1988); Gascoe, Ltd. v. Newtown Township, 699 F. Supp. 1092 (E.D. Pa. 1988).

637 Adam Thierer, The Progress & Freedom Foundation, Fact and Fiction in the Debate Over Video Game Regulation, Progress on Point 13.7, March 2006, http://www.pff.org/issues-pubs/pops/pop13.7videogames.pdf





family must make for themselves. There is no reason for government to make that decision preemptively for all households by mandating highly restrictive parental control defaults. Moreover, there are better ways for government and industry to encourage the diffusion and adoption of parental control tools and rating systems. Instead of spending money litigating cases against the government, industry should plow their resources into improved, easier-to-use parental control tools and consumer education efforts. And government education and awareness-building campaigns could go a long way toward improving consumer adoption. In the past, government has helped change public attitudes about safety in other contexts by undertaking (or lending support to) various public awareness campaigns, including: forest fire prevention efforts (“Smokey the Bear” campaigns); anti-littering efforts (“Give a Hoot, Don’t Pollute”), and seat-belt safety. Those campaigns have helped forever change behavior and improved public safety as a result. Policymakers should tap these more constructive, constitutional solutions and steer clear of mandating parental controls and restrictive default settings that would, ultimately, have many unintended consequences and leave parents and children worse off in the long run. B. Why Mandating Universal Ratings Would Be a Mistake

So-called “universal ratings” schemes would suffer from many of the same problems that would plague mandatory parental controls or defaults. We Already Have Universal Sectoral Ratings First, however, it is important to acknowledge the fact that while we do not have a “universal rating” system across all media—television, movies, music, video games, and the Internet—the current voluntary rating systems are universal, or nearly universal, within their respective sectors. The same cannot be said of current “independent” ratings schemes. Although those systems provide parents with beneficial information, they fall well short of being as comprehensive as official industry-based rating systems. For example, Common Sense Media provides the public with a wonderful informational resource that freely offers detailed reviews of new movies, television programs, video games, music, and more.638 Still, Common Sense Media does not come anywhere close to rating all the media content emanating from those sectors. More obscure titles typically go unrated by the organization, and older content that pre-dates the organization remains largely

638

www.commonsensemedia.org




unrated.639 Moreover, independent rating sites have no formal means of enforcing their rating schemes, and there is no guarantee that such services will exist forever. Indeed, many independent media review sites and services have come and gone over the past decade. Finally, official industry rating systems establish a sort of baseline for all other rating systems. Not only does the public—and parents in particular—use the official rating systems as a rough proxy for whether or not content is acceptable for their kids, but independent rating services also use the official industry ratings as point of comparison. This represents a healthy form of competition among official rating systems and independent systems, with the independent groups providing a useful “watchdog” role in this regard. The public is better off for having access to both industry and independent rating schemes. Mandating Universe Ratings Would Destroy Innovation and Impose Serious Costs on Media Providers and Consumer Electronics Companies Mandating “universal” controls and ratings across all media platforms could destroy innovation in this space by substituting a government-approved, “one-size-fits-all” standard for today’s “let-a-thousand-flowers-bloom” approach, which offers diverse tools for a diverse citizenry. At a minimum, a universal ratings mandate would erase years’ worth of educational efforts by industry and others to inform the public about existing rating systems. Crafting a new ratings scheme for all media would require a massive public re-education effort that would create confusion in the interim with no guarantee of success in the long-run.640

639

“*T+hird parties purporting to provide information to parents assess, at best, a small percentage of the games that are published each year, use a variety of untested criteria that are neither transparent nor widely explained to consumers, have no access to a game’s packaging or advertising, and cannot quickly and effectively enforce against misuse of the information they seek to provide.” Reply Comments of the Entertainment Software Association, Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, May 18, 2009, at 7, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520216861

640 “*P+roviding new ratings systems will result in parents using blocking technologies even less than they do today because the cost of learning multiple systems and configuring television receivers to block programs across a multiplicity of dimensions, labels, etc will be too great.” Comments of TiVo Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB Docket No. 09-26, April 16, 2009, at 6, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520213640. “*P+arents have only so much time to learn a new ratings system and to configure all of the television receiver equipment in the household to block programming according to the new ratings system. The use of many different ratings systems could lead parents to give up on the technology rather than make use of innovative features.” Reply Comments of TiVo Inc., Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, MB





A universal rating mandate or mandatory technological “silver-bullet” solution would also impose significant costs on media providers and consumer electronics (CE) companies. Complying with such a mandate would force media creators to re-train the employees who label new content, re-label their back catalogs of content, and re-educate their consumers about the new system. For manufacturers of CE and digital media devices, the costs associated with a universal ratings mandate would also be steep. Each new device capable of receiving media content that was required to be rated and filterable would have to have to be equipped with new filtering technology. Moreover, all legacy content and devices would become a casualty of regulation: Because it is unlikely they could be made backwards-compatible, they would suddenly become obsolete-by-regulation—at a significant economic loss to manufacturers and vendors who would be pressured to dispose of their inventory. “Scientific Ratings” Are a Fiction As noted previously, media rating and content-labeling efforts are not an exact science but a fundamentally subjective exercise. While some academics have suggested that ratings can be made more “scientific,” the reality is that rating and labeling artistic expression will always be highly contentious. Attempting to give a rating system the aura of “science” implies that the process would be more authoritative or trustworthy, but there is no evidence to show why that would be the case. Indeed, even medical sciences can be tainted by social and political prejudices. As Oliver Wendell Homes, Sr. wrote in 1860:

The truth is, that medicine, professedly founded on observation, is as sensitive to outside influences, political, religious, philosophical, imaginative, as is the barometer to the changes of atmospheric density. Theoretically it ought to go on its own straightforward inductive path, without regard to changes of government or to fluctuations of public opinion. But look a moment while I clash a few facts together, and see if some sparks do not reveal by their light a closer relation between the Medical Sciences and the conditions of Society and the general thought of the time, than would at first be suspected.641

This is not to say all medical practitioners who might favor universal rating schemes would always be tainted by social forces or political considerations. But if responsibility for the creation and administration of any universal ratings scheme was left to the “medical community,” one wonders what would stop other groups or forces

Docket No. 09-26, May 18, 2009, http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6520216917

641 Oliver Wendell Holmes, Sr., “ Currents And Counter-Currents In Medical Science,” Medical Essays: 1842-1882 (Boston: Houghton Mifflin Company, 1861), http://books.google.com/books?id=TsgNAAAAYAAJ&output=html


http://books.google.com/books?id=TsgNAAAAYAAJ&output=html



that did have a political agenda from coming to have more of a say in the rating process. Again, this raises the “heckler’s veto” problem since a vocal minority’s preferences could trump those of the public at large.642 Practically speaking, the problem with this approach is that it raises the prospect of gridlock and delay in getting content rated and made available to consumers on a timely basis. If every movie, television program, album, video game, and so on, were required to be rated by some sort of “blue-ribbon” task force made up of academic experts, media “experts,” child psychologists, and so on, how long would it take to get their approval? Would the panel have the right to prohibit some media content from being released altogether? Would they have the power to fine retailers for non-compliance with their new system? Of course, there is nothing stopping anyone, including medical organizations, from voluntarily bringing together a group of independent experts to create alternative guidelines or independent rating systems. But having such systems enshrined by law raises many thorny Constitutional and practical questions. Mandatory Universal Ratings Would Raise Profound First Amendment Concerns The notion that the government should have a say in how speech and artistic expression is rated and labeled raises serious First Amendment issues.643 As noted above, many courts have held that it would be unconstitutional for government to enshrine any private ratings scheme into law or use such a scheme as a trigger for legal liability. A mandatory universal rating scheme would raise even more profound First Amendment concerns since it tiptoes dangerously close to the definition of prior restraint and/or compelled speech. Presumably, if government required all content to be labeled according to some “universal” standard or scheme, it would require that the government have some say in creating, or at least blessing, that standard and then stipulating penalties for non-compliance with that rating scheme. This is where a subtle—if not explicit—form of prior restraint would enter the picture. As the Supreme Court stated in Bantam Books Inc. v. Sullivan (1963), “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.”644 In that case, the Court struck down as unconstitutional a Rhode Island measure which had created a Commission “to educate the public concerning any book… or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined [in

642

Reno v. ACLU, 521 U.S. 844, 880 (1997).

643 My thanks to my PFF colleague Berin Szoka for his assistance in constructing this section.

644 Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).



other sections] and to investigate and recommend the prosecution of all violations of said sections.” The Court found that the Rhode Island Commission to Encourage Morality in Youth had engaged in “informal censorship” when it:

notif[ied] a distributor that certain books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age. Such notices requested the distributor's "cooperation" and advised him that copies of the lists of "objectionable" publications were circulated to local police departments and that it was the Commission's duty to recommend prosecution of purveyors of obscenity.645

Similarly, in Interstate Circuit v. Dallas (1968), the Supreme Court struck down as unconstitutionally vague an ordinance authorizing the classification of certain films as “not suitable for young persons” where the standard was defined as “describing or portraying brutality, criminal violence or depravity in such a manner as to … incite or encourage crime or delinquency on the part of young persons.”646 In Interstate Circuit, the Court also noted that “there has been no retreat in this area from rigorous insistence upon procedural safeguards and judicial superintendence of the censor's action” and cited a long string of cases in support of that notion.647 Since that time, the Supreme Court and lower courts have continued to strike down all prior restraint laws and state and local ordinances dealing with content labeling requirements. More recently, in a series of video game-related cases, Federal appellate and district courts have consistently struck all state and local efforts aimed at imposing labels on video games or co-opting the video game industry’s rating system and giving it the force of law. In two of the most recent of these cases, appellate courts struck down similar state laws banning the sale of certain video games to minors and mandating that retailers place a label with the numerals “18” on such games.648 The two circuit courts agreed that the labeling mandates constituted compelled speech—namely, the state’s conclusion that a particular video game was inappropriate

645

Id. at 58.

646 Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676 (1968).

647 Id. at 682-3. The other decisions cited by the court were: Freedman v. Maryland, 380 U.S. 51 (1965); Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Gelling v. Texas, 343 U.S. 960 (1952); Superior Films, Inc. v. Department of Education, 346 U.S. 587 (1954); Commercial Pictures Corp. v. Regents, 346 U.S. 587 (1954); Holmby Productions, Inc. v. Vaughn, 350 U.S. 870 (1955).

648 Video Software Dealers Association v. Arnold Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) (Schwarzenegger); Entertainment Software Association v. Blagojevich, 469 F.3d 641 (7th Cir. 2006) (Blagojevich).



for minors because it qualified as “sexually explicit” (Illinois) or “violent” (California). Both courts agreed that the government could compel only the disclosure of “purely factual and uncontroversial information” for the sake of consumer protection, such as product warning labels about mercury content or, in an attorney’s advertisement, the fact that clients might be responsible for costs of litigation.649 By contrast, the Seventh Circuit concluded that Illinois’s label “communicates a subjective and highly controversial message—that the game's content is sexually explicit,” a message that the court declared “non-factual,” “far more opinion-based than the question of whether a particular chemical is within any given product,” and “unlike a surgeon general's warning of the carcinogenic properties of cigarettes.”650 The Ninth Circuit reached the same conclusion and, while declining to adopt the Seventh Circuit’s application of the exacting standard of strict scrutiny, concluded that California’s labeling mandate could not survive even the less demanding standard of intermediate scrutiny, also noting that the mandate did not serve to protect consumers against deception.651 These two cases, and the Supreme Court cases on which they rest, make it clear that any universal ratings system compelling disclosure of anything other than “purely factual and uncontroversial information” about content for the sake of preventing deception of consumers would almost certainly be struck down by the courts. Crafting a universal content rating system within these constitutional constraints would be highly challenging and, even if it could be done, the result would be highly unlikely to satisfy those who advocate labeling mandates.652 Finally, because the vast majority of content regulated under a mandatory universal rating system would be non-obscene, the constitutional bar would be even higher.

649

See Blagojevich, 469 F.3d at 651-52 (citing Nat'l Elec. Mfrs. Ass'n v. Sorrell, 272 F.3d 104, 114-16 (2d Cir. 2001); Zauderer v. Office of Disciplinary Counsel for Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985)); see Schwarzenegger, 556 F.3d at 966-67.

650 Blagojevich, 469 F.3d at 652.

651 Schwarzenegger, 556 F.3d at 967 (citing Zauderer, 471 U.S. at 651 (requiring that the “disclosure requirements *be+ reasonably related to the State's interest in preventing deception of customers”).

652 Of course, to be truly “universal,” a content ratings system would have to apply not only to “professional” content (like existing industry ratings systems), but also to user generated content. But the prior restraint of requiring users to label (or have others label) their content would significantly impair speech and content generation by users who wish to remain anonymous. Noting an honorable tradition of advocacy and of dissent in America and recognizing anonymity as “a shield from the tyranny of the majority,” the Supreme Court has rejected laws that burden anonymous speech, such as prohibitions on anonymous pamphleteering and online age verification mandates for sexually explicit content. McIntyre v. Ohio Elections Commission, 514 U.S. 334 at 357 (1995). Thus, the hope of a “universal” ratings system appears to be ultimately inconsistent with the First Amendment.



Universal Ratings May Evolve Naturally from Increased Metadata Tagging and Crowdsourcing Efforts The growth of user-generated content and interactive social networking sites and services raises profound challenges for traditional rating systems and government regulation alike. The sheer volume of speech and expression being produced in modern times simply dwarfs all the content created over the past century. Importantly, however, these new means of communications and content creation are also spawning innovative approaches to content labeling through metadata “tagging” as well as content “flagging,” which refers to user efforts to highlight inappropriate or objectionable content or comments. Consider the “reputational systems” and user-generated reviews already in place on some major websites. An increasingly important part of the content offered by sites such as Amazon.com, Netflix.com, Metacritic.com, and IMDB.com (the Internet Movie Database) is the detailed reviews posted by users of movies, TV programs, and other types of media content. These reviews can help parents screen content for their children. Better yet, some of those sites allow users to find other users with similar tastes and values and track their reviews regularly. Thus, once a parent finds a particular piece of content they deem suitable for their children, these sites make it easy for that parent to find other content that is likely to match their values—thus “crowdsourcing” to other users the inherently subjective task of rating content and allowing parents to follow reviews from users who seem to share their values. On sites with a great deal of user-generated content, such as YouTube.com and many social networking sites, users can “flag” inappropriate content through various reporting mechanisms. Once enough users in that online community have flagged a certain post or piece of content as inappropriate, the “wisdom of the crowd” will help site administrators identify which content (or users) the online community feels are problematic. Offending content can then be (and frequently is) removed and users who cause problems can be dealt with, or even removed from the site. Finally, the increased use of digital metadata tagging can facilitate greater user screening. Metadata, which is essentially data about data, can be embedded in almost any digital media file. It can be used either by the content creator or downstream parties to embed useful information about content ratings, descriptors, warnings, etc. As more and more content gets “tagged and flagged”—by both creators or crowds—it will facilitate easier information retrieval and blocking.



X. Appendix: Review of Five Online Safety Task Forces

Over the past decade, five major online safety task forces or blue ribbon commissions have been convened to study these concerns, determine their severity, and consider what should be done to address them. Two of these task forces were convened in the United States and issued reports in 2000 and 2002. Another was commissioned by the British government in 2007 and issued in a major report in March 2008. Finally, two additional online safety task forces were formed in the U.S. in 2008 and concluded their work, respectively, in January and July of 2009. 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.653 The findings are particularly relevant today since Congress and the Obama Administration are actively studying these issues. For example, three federal agencies are currently exploring various aspects of this debate:

NTIA (OSTWG): The “Protecting Children in the 21st Century Act,” which was signed into law by President Bush in 2008 as part of the “Broadband Data Services Improvement Act,”654 authorized the creation of an Online Safety and Technology Working Group (OSTWG). The National Telecommunications and Information Administration (NTIA) at the U.S. Department of Commerce, which is overseeing the effort, has appointed 35 members to serve 15-month terms to study the status of industry efforts to promote online safety, best practices among industry leaders, the market for parental control technologies, and assistance to law enforcement in cases of online child abuse. The U.S. Department of Justice, the U.S. Department of Education, the Federal Communications Commission, and the Federal Trade Commission all have delegates serving on the working group. OSTWG began its work in early June 2009 and is due to report back to Congress one year later.655

653

Importantly, this is also the general approach that many other child safety experts and authors have taken when addressing these issues. For example, see Nancy E. Willard, Cyber-Safe Kids, Cyber-Savvy Teens (San Francisco, CA: Jossey-Bass, 2007), www.cskcst.com; Larry Magid and Anne Collier, MySpace Unraveled: A Parent’s Guide to Teen Social Networking (Berkeley, CA: Peachtree Press, 2007), www.myspaceunraveled.com; Sharon Miller Cindrich, e-Parenting: Keeping Up with Your Tech-Savvy Kids (New York: Random House Reference, 2007), www.pluggedinparent.com; Jason Illian, MySpace, MyKids: A Parent's Guide to Protecting Your Kids and Navigating MySpace.com (Eugene, OR; Harvest House Publishers, 2007); Linda Criddle, Look Both Ways: Help Protect Your Family on the Internet (Redmond, WA: Microsoft Press, 2006), http://look-both-ways.com/about/toc.htm; Gregory S. Smith, How to Protect Your Children on the Internet: A Road Map for Parents and Teachers (Westport, CT: Praeger, 2007), www.gregoryssmith.com.

654 Broadband Data Services Improvement Act of 2008, P.L. 110-385, 110

th Congress.

655 See Leslie Cantu, Newest Online Safety Group Will Report on Industry Efforts, Washington Internet Daily, Vol. 10 No. 107, June 5, 2009; Larry Magid, Federal Panel Takes a Fresh Look at Kids’ Internet Safety, San Jose Mercury News, www.mercurynews.com/business/ci_12522370?nclick_check=1; Adam Thierer, The Progress & Freedom Foundation, Online Safety Technology Working Group (OSTWG) Is Underway, PFF Blog, June 4, 2009, http://blog.pff.org/archives/2009/06/online_safety_technology_working_group_ostwg_is_un.html




http://look-both-ways.com/about/toc.htm


http://www.mercurynews.com/business/ci_12522370?nclick_check=1

http://blog.pff.org/archives/2009/06/online_safety_technology_working_group_ostwg_is_un.html



FTC: That same bill that created the OSTWG, also requires that the Federal Trade Commission (FTC) “carry out a nationwide program to increase public awareness and provide education” to promote safer Internet use. “The program shall utilize existing resources and efforts of the Federal Government, State and local governments, nonprofit organizations, private technology and financial companies, Internet service providers, World Wide Web-based resources, and other appropriate entities, that includes (1) identifying, promoting, and encouraging best practices for Internet safety; (2) establishing and carrying out a national outreach and education campaign regarding Internet safety utilizing various media and Internet-based resources; (3) facilitating access to, and the exchange of, information regarding Internet safety to promote up to-date knowledge regarding current issues; and, (4) facilitating access to Internet safety education and public awareness efforts the Commission considers appropriate by States, units of local government, schools, police departments, nonprofit organizations, and other appropriate entities.”

FCC: Pursuant to the requirements set forth in the Child Safe Viewing Act of 2007,656 the Federal Communications Commission (FCC) launched a Notice of Inquiry in March 2009 to survey the parental controls marketplace.657 Specifically, the Act 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 proceeding prompted a diverse assortment of filings from industry and non-profit groups discussing the technologies and rating systems on the market today.658 The Act requires that the FCC issue a report to Congress about these technologies no later than August 29, 2009.659

656

Child Safe Viewing Act of 2007, P.L. 110-452, 110th

Congress. Also see Adam Thierer, The Progress & Freedom Foundation, “Child Safe Viewing Act” (S. 602) Signed by President Bush, PFF Blog, Dec. 2, 2008, http://blog.pff.org/archives/2008/12/child_safe_view.html

657 Federal Communications Commission, Notice of Inquiry In the Matter of Implementation of the Child Safe Viewing Act; Examination of Parental Control Technologies for Video or Audio Programming, FCC 09-14, MB Docket No. 09-26, March 2, 2009 (hereinafter FCC, Child Safe Viewing Act Notice).

658 See Adam Thierer, The Progress & Freedom Foundation, Major Filings in FCC's ‘Child Safe Viewing Act’ Notice of Inquiry, PFF Blog, Apr. 20, 2009, http://blog.pff.org/archives/2009/04/major_filings_in_fccs_child_safe_viewing_act_notic.html.

659 For more discussion of the possible implications of this proceeding, see Adam Thierer, The Progress & Freedom Foundation, Dawn of Convergence-Era Content Regulation at the FCC? ‘Child Safe Viewing Act’ NOI Launched, PFF Blog, March 3, 2009, http://blog.pff.org/archives/2009/03/dawn_of_convergence-era_content_regulation_at_the.html.

http://blog.pff.org/archives/2008/12/child_safe_view.html

http://blog.pff.org/archives/2009/04/major_filings_in_fccs_child_safe_viewing_act_notic.html

http://blog.pff.org/archives/2009/03/dawn_of_convergence-era_content_regulation_at_the.html



As these agencies, future task forces, academics, and others continue to study these issues, they should keep the findings of past online safety task forces in mind. What follows is an expanded chronological discussion of the major findings of each of the five major online safety task forces that have been convened since 2000. 2000 – Commission on Online Child Protection (“COPA Commission”) The COPA Commission was formed pursuant to the federal Child Online Protection Act, which Congress passed in October 1998.660 The Act mandated all website operators to restrict access to material deemed “harmful to minors” under the age of 17. Thus, in order to identify minors, the law required some form of age verification of all users who attempt to access such content. After a decade-long court battle over the constitutionality of COPA, however, the U.S. Supreme Court in January 2009 rejected the government’s latest request to revive the law, meaning it is likely dead.661 The COPA Commission, however, was unaffected by this judicial battle and its report remains the most important legacy of the law. Congress asked the COPA Commission to study methods to help reduce access by minors to certain sexually explicit material online. Congress directed the Commission to evaluate the accessibility, cost, and effectiveness of protective technologies and methods, as well as their possible effects on privacy, First Amendment values and law enforcement. The Commission was chaired by Donald Telage, then Executive Advisor for Global Internet Strategy for Network Solutions Inc., and it had 18 members from academia, government, and industry. After hearing from a diverse array of parties and considering a wide range of possible solutions,662 the COPA Commission concluded that:

no single technology or method will effectively protect children from harmful material online. Rather, the Commission determined that a combination of public education, consumer empowerment technologies

660

COPA Commission, Report to Congress, October 20, 2000, www.copacommission.org. 661

See Adam Thierer, The Progress & Freedom Foundation, Closing the Book on COPA, PFF Blog, Jan. 21, 2009, http://blog.pff.org/archives/2009/01/closing_the_boo.html.

662 The Commission evaluated: filtering and blocking services; labeling and rating systems; age verification efforts; the possibility of a new top-level domain for harmful to minors material; “green” spaces containing only child-appropriate materials; Internet monitoring and time-limiting technologies; acceptable use policies and family contracts; online resources providing access to protective technologies and methods; and options for increased prosecution against illegal online material. Id. at 14.

http://www.copacommission.org/




and methods, increased enforcement of existing laws, and industry action are needed to address this concern.663

The COPA Commission also made specific recommendations concerning education, law enforcement and industry action, which are listed in Exhibit 1.664 The clear conclusion of the COPA Commission was that a layered, multi-faceted approach to online safety was essential. Education, empowerment, and targeted law enforcement strategies were the key. Finally, the COPA Commission helped highlight for policymakers “the unique characteristics of the Internet and its impact on the ability to protect children”:

The Internet’s technical architecture creates new challenges as well as opportunities for children and families. Material published on the Internet may originate anywhere, presenting challenges to the application of the law of any single jurisdiction. Methods for protecting children in the U.S. must take into account this global nature of the Internet. In addition, thousands of access providers and millions of potential publishers provide content online. Methods to protect children from content harmful to minors must be effective in this diverse and decentralized environment, including the full range of Internet activity such as the Web, email, chat, instant messaging, and newsgroups. The Internet is also rapidly changing and converging with other, more traditional media. Effective protections for children must accommodate the Internet’s convergence with other media and extend to new technologies and services offered on the Internet, *since+ … unlike one-way broadcast media, the Internet is inherently multi-directional and interactive.665

663

Id. at 9. 664

Id. at 9-10. 665

Id. at 13.



Exhibit 67: COPA Commission Recommendations

Public Education:

Government and the private sector should undertake a major education campaign to promote public awareness of technologies and methods available to protect children online.

Government and industry should effectively promote acceptable use policies.

Consumer Empowerment Efforts:

Resources should be allocated for the independent evaluation of child protection technologies and to provide reports to the public about the capabilities of these technologies.

Industry should take steps to improve child protection mechanisms, and make them more accessible online.

A broad, national, private sector conversation should be encouraged on the development of next-generation systems for labeling, rating, and identifying content reflecting the convergence of old and new media.

Government should encourage the use of technology in efforts to make children’s experience of the Internet safe and useful.

Law Enforcement:

Government at all levels should fund, with significant new money, aggressive programs to investigate, prosecute, and report violations of federal and state obscenity laws, including efforts that emphasize the protection of children from accessing materials illegal under current state and federal obscenity law.

State and federal law enforcement should make available a list, without images, of Usenet newsgroups, IP addresses, World Wide Web sites or other Internet sources that have been found to contain child pornography or where convictions have been obtained involving obscene material.

Federal agencies, pursuant to further Congressional rulemaking authority as needed, should consider greater enforcement and possibly rulemaking to discourage deceptive or unfair practices that entice children to view obscene materials, including the practices of “mousetrapping” and deceptive metatagging.

Government should provide new money to address international aspects of Internet crime, including both obscenity and child pornography.

Industry Action:

The ISP industry should voluntarily undertake “best practices” to protect minors.

The online commercial adult industry should voluntarily take steps to restrict minors’ ready access to adult content.



2002 – Youth, Pornography, and the Internet (“Thornburgh Commission”) In 2001, a blue-ribbon panel of experts was convened by the National Research Council (NRC) of the National Academy of Sciences to study how best to protect children from objectionable online material, namely, pornography. Congress had passed legislation in November 1998 requiring that the NRC “conduct a study of computer-based technologies and other approaches to the problem of the availability of pornographic material to children on the Internet.”666 Under the leadership of former U.S. Attorney General Richard Thornburgh, in 2002, the group produced a massive, 450-page report (Youth, Pornography, and the Internet) that discussed a comprehensive collection of strategies for dealing with potentially objectionable media content or online dangers.667 The Thornburgh Commission used a compelling metaphor to explain why education was the most essential strategy for addressing these concerns:

Technology—in the form of fences around pools, pool alarms, and locks—can help protect children from drowning in swimming pools. However, teaching a child to swim—and when to avoid pools—is a far safer approach than relying on locks, fences, and alarms to prevent him or her from drowning. Does this mean that parents should not buy fences, alarms, or locks? Of course not—because they do provide some benefit. But parents cannot rely exclusively on those devices to keep their children safe from drowning, and most parents recognize that a child who knows how to swim is less likely to be harmed than one who does not. Furthermore, teaching a child to swim and to exercise good judgment about bodies of water to avoid has applicability and relevance far beyond swimming pools—as any parent who takes a child to the beach can testify.668

The report also included a lengthy chapter on “Social and Educational Strategies to Develop Personal and Community Responsibility,” which pointed out how “exclusive—or even primary—reliance on technological measures for protection would be an abdication of parental and community responsibility and is likely to be ineffective as well.”669 Education was the preferred approach because “technology often does not 666

Title IX, Sec. 901 of The Protection of Children from Sexual Predators Act of 1998, Pub. Law 105-314. 667

Computer Science and Telecommunications Board, National Research Council, Youth, Pornography and the Internet (Washington, DC: National Academy Press, 2002), www.nap.edu/html/youth_internet/

668 Id. at 224.

669 Id. at 221.

http://www.nap.edu/html/youth_internet/



live up to its promises,” and “because technology changes rapidly for everyone, technology tools developed to solves problems exposed by other technological developments may quickly be rendered obsolete.”670 The Thornburgh Commission also found that “Technology-based tools, such as filters, provide parents and other responsible adults with additional choices as to how best fulfill their responsibilities.”671 In other words, technological tools and approaches could supplement educational strategies.672 However, the report also concluded, however, “there is no single or simple answer to controlling the access of minors to inappropriate material on the Web.”673 Thus, the Thornburgh Commission advocated a layered approach to the issue:

Though some might wish to think otherwise, no single approach—technical, legal, economic, or education—will be sufficient. Rather, an effective framework for protecting our children from inappropriate materials and experiences on the Internet will require a balanced composite of all these elements, and real progress will require forward movement on all these fronts.674

2008 – Safer Children in a Digital World (“Byron Review”) In September 2007, the British government asked Dr. Tanya Byron, a prominent British psychologist, to conduct an independent review of the risks to children from exposure to potentially harmful or inappropriate material on the Internet and in video games. Dr. Byron delivered her report to the Prime Minister in March 2008: Safer Children in a Digital World: The Report of the Byron Review.675 It reflected many of the same themes, and reached many of the same conclusions, as the U.S.-based reports mention herein. Again, there was a realization that there are no easy answers to these complicated issues:

670

Id. at 222. 671

Id. at 12. 672

“While technology and public policy have important roles to play, social and educational strategies that impart to children the character and values to exercise responsible choices about Internet use and the knowledge about how to cope with inappropriate material and experiences is central to promoting children’s safe Internet use.” Id. at 388.

673 Id. at 12.

674 Id. at 13.

675 Safer Children in a Digital World: The Report of the Byron Review, March 27, 2008, www.dcsf.gov.uk/byronreview. The complete final report can be found at: www.dcsf.gov.uk/byronreview/pdfs/Final%20Report%20Bookmarked.pdf.

http://www.dcsf.gov.uk/byronreview

http://www.dcsf.gov.uk/byronreview/pdfs/Final%20Report%20Bookmarked.pdf



There is no ‘silver bullet’. Neither Government nor industry can make the internet completely safe. The nature of the internet means that there will always be risks, and children and parents need to understand how to manage the risks of the internet.

As such, policies that claim to make the internet completely safe are undesirable because they discourage children and parents from taking an informed approach to managing the risks. At worst they can be dangerous – lulling parents into a false sense of security and leaving children exposed to a greater level of risk than they would otherwise be.676

The Byron Review also emphasized the importance of education and building resiliency:

Just like in the offline world, no amount of effort to reduce potential risks to children will eliminate those risks completely. We cannot make the internet completely safe. Because of this, we must also build children’s resilience to the material to which they may be exposed so that they have the confidence and skills to navigate these new media waters more safely.677

[And ] crucial and central to this issue is a strong commitment to changing behavior through a sustained information and education strategy. This should focus on raising the knowledge, skills and understanding around e-safety of children, parents and other responsible adults.678

The Byron Review recommended a comprehensive information and education strategy through a partnership of government, schools, child safety experts, and industry. It also recommended that government policy be more tightly coordinated by a new UK Council for Child Internet Safety, which would report to the Prime Minister. Finally, the Byron Review outlined a variety of industry best practices that could help parents and children achieve greater online safety.

676

Id. at 81. 677

Id. at 5. 678

Id. at 7.



2009 – Internet Safety Technical Task Force (ISTTF) On January 14th, 2008, social networking website operator MySpace.com announced a joint effort with 49 state Attorneys General (AGs) aimed at better protecting children online. As part their “Joint Statement on Key Principles of Social Networking Safety,” MySpace promised the AGs it would create new online safety tools, improve education efforts, and expand its cooperation with law enforcement.679 They also agreed to create an industry-wide Internet Safety Technical Task Force (ISTTF) to study online safety tools, including a review of online identity authentication technology.680 The ISTTF, which was chaired by Harvard University law professor John Palfrey, the Co-Director of Harvard’s Berkman Center for Internet & Society, included representatives from many child safety groups, non-profit organizations, and Internet companies. The ISTTF convened a Research Advisory Board (RAB), which brought together leading academic researchers in the field of child safety and child development and a Technical Advisory Board (TAB), which included some of America’s leading digital technologists and computer scientists, who reviewed child safety technologies submitted to the ISTTF. The RAB’s literature review681 and TAB’s assessment of technologies682 were the most detailed assessments of these issues to date. They both represent amazing achievements in their respective arenas. On December 31, 2008, the ISTTF issued its final report, Enhancing Child Safety & Online Technologies.683 Consistent with previous task force reports, the ISTTF found that “there is no one technological solution or specific combination of technological solutions to the problem of online safety for minors.”684 And, while the ISTTF was, “optimistic about the development of technologies to enhance protections for minors

679

MySpace and Attorneys General Announce Joint Effort to Promote Industry-Wide Internet Safety Principles, News Corp., Press Release, January 14, 2008, www.newscorp.com/news/news_363.html

680 Adam Thierer, The Progress & Freedom Foundation, The MySpace-AG Agreement: A Model Code of Conduct for Social Networking? Progress on Point 15.1, Jan. 2008, www.pff.org/issues-pubs/pops/pop15.1myspaceAGagreement.pdf

681 http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report-APPENDIX_C_Lit_Review_121808.pdf

682 http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report-APPENDIX_D_TAB_and_EXHIBITS.pdf

683 Internet Safety Technical Task Force, Enhancing Child Safety & Online Technologies: Final Report of the Internet Safety Technical Task Force to the Multi-State Working Group on Social Networking of State Attorneys General of the United States, Dec. 31, 2008, at 10, http://cyber.law.harvard.edu/pubrelease/isttf

684 Id. at 6




http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report-APPENDIX_C_Lit_Review_121808.pdf

http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report-APPENDIX_C_Lit_Review_121808.pdf

http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report-APPENDIX_D_TAB_and_EXHIBITS.pdf

http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/ISTTF_Final_Report-APPENDIX_D_TAB_and_EXHIBITS.pdf

http://cyber.law.harvard.edu/pubrelease/isttf



online and to support institutions and individuals involved in protecting minors,” it ultimately “caution[ed] against overreliance on technology in isolation or on a single technological approach”:685

Instead, a combination of technologies, in concert with parental oversight, education, social services, law enforcement, and sound policies by social network sites and service providers may assist in addressing specific problems that minors face online. All stakeholders must continue to work in a cooperative and collaborative manner, sharing information and ideas to achieve the common goal of making the Internet as safe as possible for minors.686

Finally, the ISTTF recognized the importance of providing adequate resources to law enforcement, schools, and social service organizations so they can better deal with child safety concerns:

To complement the use of technology, greater resources should be allocated: to schools, libraries, and other community organizations to assist them in adopting risk management policies and in providing education about online safety issues; to law enforcement for training and developing technology tools, and to enhance community policing efforts around youth online safety; and to social services and mental health professionals who focus on minors and their families, so that they can extend their expertise to online spaces and work with law enforcement and the Internet community to develop a unified approach for identifying at-risk youth and intervening before risky behavior results in danger.687

685

Id. 686

Id. 687

Supra note 683 at 6.



2009 – “Point Smart. Click Safe.” Blue Ribbon Working Group In June 2007, the National Cable & Telecommunications Association (NCTA), the principal trade association of the cable industry in the United States, announced “Cable Puts You in Control: PointSmart. ClickSafe.”688 a new campaign by its members to offer parents assistance in keeping their children safe online.689 As part of the initiative the NCTA hosted a major online child safety summit and also announced the formation of the “Point Smart. Click Safe.” Blue Ribbon Working Group in partnership with the Internet KeepSafe Coalition (iKeepSafe) and Common Sense Media. These three organizations, along with the cable industry’s “Cable in the Classroom” program, agreed to bring together a collection of online safety experts from many disciplines to study these issues and develop a set of “best practice” recommendations that could be implemented across the Internet industry. In July 2009, the working group produced its final report.690 In line with what previous task forces found, the “Point Smart. Click Safe.” Blue Ribbon Working Group concluded that:

Ensuring children’s online safety is a difficult and complex task that calls for input from and action by a wide variety of stakeholders. There is no “silver bullet”—no single technology or approach that has proved effective. Rather, what is required is:

A combination of different technologies,

Continuing digital literacy education for parents, educators, and children, and

Active participation by all concerned companies, groups and individuals.

Similarly, a singular focus on safety is insufficient. Children must learn to minimize risks but also learn appropriate and ethical behaviors in this digital world. In addition, they need an understanding of media literacy, in order to be able to think critically about the content they consume and increasingly create. Therefore, best practices must be part of a larger effort to provide an entertaining, educational, and safe experience for children.

688

www.pointsmartclicksafe.org 689

Adam Thierer, The Progress & Freedom Foundation, Cable’s Commitment to Online Safety, Progress Snapshot 3.7 June 2007, www.pff.org/issues-pubs/ps/2007/ps3.7cablecodeconduct.pdf.

690 www.PointSmartReport.org


http://www.pff.org/issues-pubs/ps/2007/ps3.7cablecodeconduct.pdf

http://www.pointsmartreport.org/



Again, the major contribution of this task force was its focus on detailed industry best practices that various online providers could adopt to help parents, policymakers, and law enforcement better keep kids safe online. As the working group’s final report noted:

It should be easy for parents and others to find clear and simple explanations of what information and safety elements exist, how they function, and what a user can do in various circumstances. Therefore, best operating practices should:

Use clear and common language,

Be consistent and transparent, and

Provide information and tools that can vary by age and stage of the user.

These best operating practices should be crafted so that they can be:

Modified for a specific service or application (e.g. ISP, blog, chat, social network),

Scaled based on the number of intended or actual users,

Designed and created as part of the product development cycle, and

Continuously updated to reflect growth and change in the application or service.

The task force then outlined several tools and strategies that industries could use to accomplish these goals. These “Recommendations for Best Practices” are summarized in the adjoining exhibit.



Exhibit 68: “Point Smart. Click Safe.” Recommendations for Best Practice

Before Children Go Online

1. Education and information

Basic information and education about the digital landscape must be in place and available to all children, parents, educators, and caregivers so they can understand the various risks, what constitutes appropriate behavior in different online spaces, and what options they have in services and terms of use. In addition, children need to learn how to use the technology efficiently, effectively and ethically so that they can participate fully in social, economic and civic life in the digital age. Best Practices should also encourage and empower parents, educators, and caregivers to understand the technology so they can make informed initial and ongoing choices for their children’s safety and security. We recommend the following: 1.1 Provide access to information that will educate parents, educators, and children about media literacy

and ethical digital citizenship, and help them think critically about the content consumed and created on the Internet.

1.2 Make safety information for users, parents, and caregivers prominent, easily accessible, and clear. 1.3 Provide information that is easy to find and access from the home page, available during registration,

and that can also be found in other appropriate places within the Web site or service. 1.4 Include specific information or FAQs about the services offered by the provider, especially safety tools

and how to use them (e.g., conducting a safe search, setting filtering options, defining and setting appropriate privacy levels).

1.5 Provide links to additional resources that offer relevant safety and security information. 1.6 To make messages about online safety clear and easily recognizable to a variety of users, consider

using consistent themes, and common words and phrases. Provide messages in multiple languages as appropriate.

1.7 Consider display of an icon on Web sites or services that denotes meaningful participation in Best Practice efforts for children's online safety.

2. Registration/creation of user profiles

We recommend the following: 2.1 Provide a clear explanation of how information collected at registration and set up will be used, what

is public vs. private on the site, and a user’s ability to modify, hide, and prevent access to user information.

2.2 Make safety information available during the registration process, prominent from the homepage and in appropriate places within the service (e.g. welcome email/message, point of sale information).

2.3 Provide information in the terms and conditions and elsewhere that defines acceptable behavior, states that users are not anonymous and can be traced, and details the consequences of violating the standards of behavior.

2.4 Provide notice that violating terms or conditions will result in specific consequences, including legal ones if required.

3. Identity authentication and age verification

The task force acknowledges that the issues of identity authentication and age verification remain substantial challenges for the Internet community due to a variety of concerns including privacy, accuracy, and the need for better technology in these areas. *…+ Therefore we recommend the following: 3.1 Continue to explore age-verification and identity-authentication technologies and work to develop

better safety and security solutions and technologies. (cont.)



We Should Heed the Collective Wisdom of the Past 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 past task forces, we now have better vision of what is needed to address online safety concerns. Education, empowerment, and targeted law

(cont.)

During a Child’s Online Activities

Best Practices in this area should recommend how technologies can be used to define and control a child’s digital activities and help parents establish the technology structure that they determine best meets their family values and needs as children grow and become more self-sufficient. We recommend the following:

4. Content screening

4.1 Initially set defaults at a moderate level as a minimum, but instruct users in how to customize settings for their own needs.

4.2 Information should be provided about company policy on filtering, including the default settings, explanations of the meanings of different safety, security and filtering options (e.g., what is blocked by certain levels of filtering), how to make adjustments, and when settings might need to be reapplied (e.g., a new version).

4.3 Consider carefully the placement and highlighting of sites belonging to and designed by children and youth (e.g., a child’s profile page could become a “safe zone,” don’t locate children’s content near ads for adult-targeted materials).

4.4 Consider a “walled garden” approach when relevant with products aimed at children eight years of age and younger.

5. Safe searching

5.1 Include specific information about how to conduct a safe search, how to set filtering options, and an explanation of privacy settings.

When Problems Arise

6. To provide the best response to problems, we recommend: 6.1 Have in place a robust procedure, backed by appropriate systems and resources, to handle

complaints. Ideally, each company should have an Internet-safety staff position or cross-functional team charged with supervising the procedures and resources and given the authority and resources to be effective.

6.2 Provide a reporting mechanism visible from all relevant pages or sections of a site or service. 6.3 Consider providing a designated page with relevant information and instructions about how to submit

a report or complaint including: How users can determine the appropriate individual or agency to contact when reporting a

problem (e.g., customer service, law enforcement, or safety hotline) and links to these services.

What types of content and behaviors should be reported, the reporting procedure, and what supporting information might need to be included.

How to remove unwanted content or information from a user’s page or profile.

How to cancel an account. 6.4 Cooperate with law enforcement, where applicable, and follow all relevant statutes.



enforcement efforts are the crucial ingredients to improving the safety of children online. And sensible industry self-regulation and best practices can help facilitate all those objectives. Of these various strategies, however, education is the one with the most lasting impact. Education teaches lessons and builds resiliency, providing skills and strength that can last a lifetime. Specifically, education can help teach kids how to behave in—or respond to—a wide variety of situations.691 The focus should be on encouraging “digital citizenship”692 and “social media literacy.”693 If policymaker convene additional task forces or working groups in coming years, it would be wise to have them focus on devising and refining online safety educational methods and digital literacy efforts. In particular, focusing on how to integrate such education and literacy programs into existing K-12 education (including curriculum and professional development) would be a worthwhile undertaking. Of course, many groups are already busy studying how to do this, but if lawmakers feel compelled to bring together experts once more to study these issues, this sort of targeted focus on education and media literacy implementation would be welcome. Importantly, it is worth noting that such education and media literacy-based approaches have the added benefit of remaining within the boundaries of the Constitution and the First Amendment. By adopting education and awareness-building approaches, government would not be seeking to restrict speech, but simply to better inform and empower parents regarding the parental control tools and techniques already at their disposal.694 The courts have shown themselves to be amenable to such educational efforts, and not just in the case of online safety.695 Thus, moving forward,

691

See Nancy Willard, A Web 2.0 Approach to Internet Safety, Education Week, Aug. 21, 2007, www.education-world.com/a_tech/columnists/willard/willard008.shtml

692 See Common Sense Media, Digital Literacy and Citizenship in the 21st Century: Educating, Empowering, and Protecting America's Kids, June 2009, www.commonsensemedia.org/sites/default/files/CSM_digital_policy.pdf; Nancy Willard, Center for Safe and Responsible Internet Use, Comprehensive Layered Approach to Address Digital Citizenship and Youth Risk Online, Nov. 2008, www.cyberbully.org/PDFs/yrocomprehensiveapproach.pdf

693 See Anne Collier, Net Family News, Social Media Literacy: The New Online Safety, Feb. 27, 2009, www.netfamilynews.org/labels/new%20media%20literacy.html

694 “Although government’s ability to regulate content may be weak, its ability to promote positive programming and media research is not. Government at all levels should fund the creation and evaluation of positive media initiatives such as public service campaigns to reduce risky behaviors and studies about educational programs that explore innovative uses of media.” Jeanne Brooks-Gunn and Elisabeth Hirschhorn Donahue, “Introducing the Issue,” in Children and Electronic Media, The Future of Children, Vol. 18, No. 1, Spring 2008, p. 8.

695 In the video game context, courts have noted the education typically provides the more sensible, and constitution, method of dealing with concerns about access to objectionable content.

http://www.education-world.com/a_tech/columnists/willard/willard008.shtml

http://www.commonsensemedia.org/sites/default/files/CSM_digital_policy.pdf

http://www.cyberbully.org/PDFs/yrocomprehensiveapproach.pdf

http://www.netfamilynews.org/labels/new%20media%20literacy.html



lawmakers would be wise to focus on education-based strategies and initiatives, not regulatory ones.696 If lawmakers instead enact more regulations aimed at banning certain types of online content,697 or mandating unworkable solutions like mandatory online age verification,698 those efforts will be bogged down in the courts for years to come. For example, the Child Online Protection Act (COPA) was passed by Congress in 1998 in an effort to restrict minors’ access to adult-oriented websites. After a decade-long series of court battles about the constitutionality of the measure, in January 2009, the U.S. Supreme Court rejected the government’s latest request to revive COPA, meaning it is likely dead.699 If all the money and resources that were spent litigating COPA had instead been used for digital media literacy and online safety campaigns, it could have produced concrete, lasting results. In sum, education, not regulation, represents the best approach to addressing content concerns about online child safety. But user empowerment, industry self-regulation, and increased resources for targeted law enforcement efforts are also essential.

696

See Berin Szoka & Adam Thierer, The Progress & Freedom Foundation, Cyberbullying Legislation: Why Education is Preferable to Regulation, , Progress on Point 16.2, June 19, 2009, www.pff.org/issues-pubs/pops/2009/pop16.12-cyberbullying-education-better-than-regulation.pdf; Adam Thierer, The Progress & Freedom Foundation, Two Sensible, Education-Based Approaches to Online Child Safety, Progress Snapshot 3.10, Sept. 2007, www.pff.org/issues-pubs/ps/2007/ps3.10safetyeducationbills.pdf.

697 See Adam Thierer, The Progress & Freedom Foundation, Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, Progress Snapshot 4.4, Feb. 6, 2008, www.pff.org/issues-pubs/ps/2008/ps4.4childprotection.html; Adam Thierer, The Progress & Freedom Foundation, Is MySpace the Government’s Space?, Progress Snapshot 2.16, June 2006, www.pff.org/issues-pubs/ps/2006/ps_2.16_myspace.pdf

698 See 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, http://pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf; Adam Thierer, The Progress & Freedom Foundation, Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, Progress on Point No. 14.5, Mar. 2007, www.pff.org/issues-pubs/pops/pop14.8ageverificationtranscript.pdf; Adam 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, Center for Safe and Responsible Internet Use, 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.

699 See Adam Thierer, The Progress & Freedom Foundation, Closing the Book on COPA, PFF Blog, Jan. 21, 2009, http://blog.pff.org/archives/2009/01/closing_the_boo.html

http://www.pff.org/issues-pubs/pops/2009/pop16.12-cyberbullying-education-better-than-regulation.pdf









http://www.csriu.org/PDFs/digitalidnot.pdf

http://www.jschmidt.org/AgeVerification/Gardian_JSchmidt.pdf




XII. Appendix: Glossary of Key Terms, Laws & Cases

Age Verification – Refers to any process that would require Internet users to provide

proof of age or identity before gaining access to specific sites or types of content. Age verification mandates have been the subject of heated political and legal disputes in the past and present. For example, age verification has been at the center of the debate over the Child Online Protection Act of 1998 and courts have consistently held that the current age verification software fails to reliably establish or verify the age of Internet users. (See “COPA.”) Most recently, age verification has been proposed as a method of keeping children safe from predatory adults who might be on social networking sites. Some state Attorneys General or legislatures have pushed age verification mandates, but none have passed thus far. (See “Social networking.”)

Blacklists – A list of websites that is blocked by an individual, organization, or an

Internet filter. Once a site has been blacklisted, users cannot access that site without first gaining permission from whoever blocked it. Blacklists are an essential part of filtering. (See “Filters,” and compare with “Whitelists.”)

Browser history file – All Internet browsers (ex: Internet Explorer, Safari, Firefox) have a

file that retains recently visited websites. These “histories” can allow parents to keep tabs on their child’s online activities. Although it is easy for users to erase such history files, parents who notice their child’s history file is empty can talk to them about why they are erasing it so frequently. The need for parents to use such history files is dissipating as more sophisticated monitoring tools are made available, which allow them to more closely monitor their child’s online activities. (See “Monitoring tools.”)

CDA – The Communications Decency Act of 1996, which was part of the

Telecommunications Act of 1996, was the first attempt by the U.S. Congress to regulate objectionable material on the Internet.700 The law sought to ban the transmission over the Internet of speech or materials that were “obscene or indecent.” The Act was immediately blocked by a lower court and a year later the Supreme Court struck down the indecency provisions of the CDA in the historical cyberlaw case of Reno v. ACLU (1997). The Supreme Court held that a law that places a “burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving” the same goal.701 (See “Less restrictive means test.”)

“Client-side” filtering – Refers to stand-alone or “boxed” filtering solutions purchased at

retail stores or downloaded from websites and then installed on a user’s personal

700

http://en.wikipedia.org/wiki/Communications_Decency_Act

701 Reno v. ACLU, 521 U.S. 844 (1997).

http://en.wikipedia.org/wiki/Communications_Decency_Act



computer. While these client-side solutions are still very popular, many families now rely on “server-side” solutions provided by their Internet service provider, usually at little to no cost. (See “Server-side” filtering.)

COPA – The Child Online Protection Act (COPA) of 1998 was an effort by the U.S.

Congress to modify the CDA in response to the Supreme Court’s decision in Reno v. ACLU. The law sought to protect minors from harmful sexual material on the Internet by making it a crime for someone to “knowingly” place materials online that were “harmful to minors.”702 The law provided an affirmative defense from prosecution, however, to those parties who made a “good faith” effort to “restrict* + access by minors to material that is harmful to minors” using credit cards or age verification schemes. (See “Age verification.”) The law was immediately challenged and blocked by lower courts, and it then became the subject of an epic legal battle that finally came to a close in January 2008 when the U.S. Supreme Court refused to revisit the law.703

The U.S. Supreme Court reviewed the rule twice and in the second decision in June 2004, the Court held in Ashcroft v. ACLU that the law was likely unconstitutional in light of the less restrictive methods that were available to block objectionable content. But the case was again referred back to a lower court for further review. In the most recent COPA decision, Judge Lowell Reed Jr., senior judge of the U.S. District Court for the Eastern District of Pennsylvania, ruled that COPA remains an unconstitutional burden because it is “impermissibly vague and overbroad” and does not represent “the least restrictive, most effective alternative in achieving the compelling interest” the government has in this matter.704 Judge Reed also held that the market for private filtering tools had continued to flourish since COPA was passed and that those filters blocked an estimated 95 percent of sexually explicit material. He also found “that there is no evidence of age verification services or products available on the market to owners of Web sites that actually reliably establish or verify the age of Internet users. Nor is there evidence of such services or products that can effectively prevent access to Web pages by a minor.”705 In July 2008, the full Third Circuit Court of Appeals upheld Judge Reed’s ruling striking down COPA,706 meaning the permanent injunction against the enforcement of COPA remained in effect until the Supreme Court decided in January 2009 not to review the law for a historic third time.707

702

www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000231----000-.html

703 “Supreme Court Won’t Revive Online Content Law,” Associated Press, Jan. 21, 2008, http://news.yahoo.com/s/ap/20090121/ap_on_go_su_co/scotus_internet_blocking

704 www.techliberation.com/COPA

705 www.techliberation.com/COPA

706 www.cdt.org/speech/20080722COPA3rdCircuit.pdf

707 Adam Thierer, The Progress & Freedom Foundation, Closing the Book on COPA, PFF Blog, Jan. 21, 2009, http://blog.pff.org/archives/2009/01/closing_the_boo.html

http://www4.law.cornell.edu/uscode/html/uscode47/usc_sec_47_00000231----000-.html

http://news.yahoo.com/s/ap/20090121/ap_on_go_su_co/scotus_internet_blocking

http://www.techliberation.com/COPA_decision.pdf

http://www.techliberation.com/COPA_decision.pdf

http://www.cdt.org/speech/20080722COPA3rdCircuit.pdf




COPPA – The Children’s Online Privacy Protection Act of 1998, which went into effect in

April 2000, requires websites that marketed to children under the age of 13 to get “verifiable parental consent” before allowing children access to their sites.708 The Federal Trade Commission (FTC), which is responsible for enforcing COPPA, adopted a sliding scale approach to obtaining parental consent.709 The sliding scale approach allows website operators to use a mix of methods to comply with the law, including print-and-fax forms, follow-up phone calls and e-mails, and credit card authorizations. The FTC also authorized four “safe harbor” programs operated by private companies that help website operators comply with COPPA.710 In a recent report to Congress, the FTC said that no changes to COPPA were necessary at this time because it had “been effective in helping to protect the privacy and safety of young children online.”711 In discussing the effectiveness of the parental consent methods, however, the agency also said that “none of these mechanisms is foolproof” and that “age verification technologies have not kept pace with other developments, and are not currently available as a substitute for other screening mechanisms.”712 This seems to imply that the FTC does not regard COPPA’s parental consent methods as the equivalent of perfect age verification. (See “Age verification.”)

CIPA – The Children's Internet Protection Act of 2000 was another attempt by Congress

to enact limitations on objectionable online materials in the wake of court challenges to the CDA and COPA. CIPA was far narrower in scope than those previous regulatory efforts since it only applies to schools or libraries receiving federal funding on the “E-rate” system, a program that subsidizes communications and computing technology for schools and libraries. Under CIPA, if schools and libraries wish to continue receiving E-Rate assistance, they must certify that they have an Internet safety policy and technology protection measures in place to block or filter Internet access to pictures considered obscene or harmful to minors.713 Unlike the CDA and COPA, CIPA was upheld by the U.S. Supreme Court as constitutional in June 2003.714

708

www.coppa.org/coppa.htm

709 See Federal Trade Commission, How to Comply with The Children’s Online Privacy Protection Rule, Nov. 1999, www.ftc.gov/bcp/conline/pubs/buspubs/coppa.htm

710 The four safe harbor programs are administered by the Children’s Advertising Review Unit of the Council of Better Business Bureaus (“CARU”); the Entertainment Software Rating Board (ESRB); TRUSTe; and Privo.

711 Federal Trade Commission, Implementing the Children’s Online Privacy Protection Act: A Report to Congress, Feb. 2007, at 1, www.ftc.gov/reports/coppa/07COPPA_Report_to_Congress.pdf

712 Id., at 12-13.

713 www.fcc.gov/cgb/consumerfacts/cipa.html

714 http://en.wikipedia.org/wiki/Children/%%27_Internet_Protection_Act

http://www.coppa.org/coppa.htm

http://www.ftc.gov/bcp/conline/pubs/buspubs/coppa.htm

http://www.ftc.gov/reports/coppa/07COPPA_Report_to_Congress.pdf

http://www.fcc.gov/cgb/consumerfacts/cipa.html

http://en.wikipedia.org/wiki/Children/%25%27_Internet_Protection_Act



Cyberbullying – Refers to the use of the Internet or communications technology to harass or threaten others.

DVR – Digital video recorders, which are also referred to as personal video recorders, let

consumers instantly pause, rewind, and fast-forward programming and, more importantly, record and archive programming for viewing at a later time. The most popular DVR is sold by TiVo, but consumers are increasingly leasing DVRs from cable, telco, and satellite operators. DVRs give parents the ability to accumulate libraries of preferred programming for their children and determine exactly when it will be viewed. This can help parents tailor programming to their specific needs and values. (Also see “VOD.”)

ESRB – The Entertainment Software Rating Board (www.esrb.org) is a self-regulatory

rating and labeling body that was established by the video game industry in 1994. The ESRB applies seven different rating symbols and over 30 different content “descriptors” to the games it rates. Once rated, the ESRB ratings and labels are embedded in games as metadata such that game consoles and personal computers can block them if parents wish. (See “Metadata.”) Virtually every title produced by major game developers for retail sale today carries an ESRB rating and content descriptors. According to the ESRB, it rates over 1,000 games per year.

Filters – Internet filtering software is used to block access to certain types of

objectionable websites or online content. Filters usually rely on human-maintained blacklists (See “Blacklists”), but automated computer programs can also flag inappropriate content based on pre-selected criteria. Image-recognition technology can also be used by filters to screen and block content. Filters can also use whitelists (See “Whitelists”) to grant access to sites that have been pre-screened or deemed appropriate. Many filters are now being bundled with monitoring tools to give parents a better understanding of their child’s online behavior and interactions. (See “Monitoring tools.”)

ICRA – The Internet Content Rating Association (www.fosi.org/icra), which was created

in 1994, offers website operators the ability to voluntarily label their websites with metadata tags. (See “Metadata.”) ICRA offers a wide variety of content descriptors that website operators can use to self-label their sites. ICRA does not rate Internet websites or the content itself. It leaves it to the content providers to do that using the ICRA labeling system. Once these metadata labels have been embedded within websites, parents can freely download the “ICRAplus” filter from ICRA’s website and customize it to their specific needs / tastes. Or they can use unaffiliated filters or computer operating system controls to screen content by ICRA labels. ICRA is now part of the Family Online Safety Institute (FOSI).

IPTV – Refers to a broad class of services that utilize Internet protocols to transmit

digital video signals to the public. Many new video services and technologies, such as

http://www.esrb.org/




VOD, are built on IPTV platforms. IPTV offers the potential for much greater capacity, configurability, and interactivity than traditional television distribution and storage methods. (Also see “VOD.’)

Keystroke logger – A digital monitoring tool that can be installed on any personal

computer and used to monitor all user communications, keystroke-by-keystroke. “Less restrictive means” test – In recent court cases striking down government

attempts to regulate online content, the courts have argued—echoing the Supreme Court’s holding in the historic 1998 case Reno v. ACLU—that any law that places a “burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving” the same goal.715 (See “Reno v. ACLU,” “CDA,” and “COPA.”) Several lower courts have rejected regulation of video game content on similar grounds.716 The net effect of the less restrictive means test is that policymakers must either prove that alternatives to regulation do not exist or are not effective in blocking underage access to objectionable materials.

Metadata – Generally speaking, metadata is data that describes other data. More

specifically, metadata refers to machine-readable digital data that describes audiovisual media content. Many of the parental control tools rely on metadata tagging. For example, MPAA movie ratings and ESRB video game ratings are digitally embedded within DVDs and video games so that parental control tools in playback devices (i.e., DVD players, computers, video game consoles, etc.) can then be used to screen out unwanted content. Metadata tags can also be used to label websites, as the ICRA system does. (See “ICRA.”)

Monitoring tools – Refers to a broad array of software or tools that enable parents to

supervise their children’s online activities. Most monitoring tools let parents see each website their children visit, view every e-mail or instant message that they send and receive, or even record every word that they type into their word processors. Parents can also receive a periodic report summarizing their child’s Internet usage and communications. More robust software programs even allow parents to capture screen shots of sites their kids have visited. Finally, these tools allow parents to do all this in a surreptitious fashion since, once the software is installed on a child’s computer, it is entirely invisible to the user. Some monitoring software also lets parents impose time management constraints on their children’s computer and Internet usage. Monitoring software is increasingly being bundled with Internet filtering software. (Also see “Filters.”)

715

Reno v. ACLU, 521 U.S. 844 (1997).

716 See 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





MPAA – The Motion Picture Association of America (www.mpaa.org) represents the interests of leading movie studios. The MPAA’s rating system, which was established in 1968, is the longest-running and most widely recognized rating system in America. Once a title is rated, the MPAA ratings are embedded in DVDs as metadata such that DVD players, game consoles and personal computers can block them if parents wish. (See “Metadata.”)

NCMEC – The National Center for Missing and Exploited Children

(www.missingkids.com) was established in 1984 as a private, non-profit 501(c)(3) organization to provide services nationwide for families and professionals in the prevention of abducted, endangered, and sexually exploited children. NCMEC helps coordinate law enforcement efforts and serves as clearinghouse of information relating to missing children or victims of sexual exploitation. NCMEC also operates the CyberTipline, a reporting mechanism for cases of child sexual exploitation. Congress provides funding to NCMEC and frequently grants new law enforcement powers to the organization to carry out its mission.

Pacifica decision – In the late 1970s, the “scarcity” rationale for regulation of broadcast

radio and television content gave way to the “pervasiveness rationale” as articulated in the landmark Supreme Court case FCC v. Pacifica Foundation (1978).717 In Pacifica, a slim majority of the Court held that:

Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.718

FCC oversight and regulatory penalties (i.e., fines or license revocation) were thought to be a way of preventing “uninvited” programming from acting as an “intruder” into the home.719 By a slim 5-4 margin, that logic became the law of the land for broadcasting and remains so today.

Parental controls – Any tool or method that parents, guardians, or schools might use to

restrict or tailor the media content that children consume. “Pervasiveness” rationale – See “Pacifica decision.”

717

FCC v. Pacifica Foundation, 438 U.S. 726, 727-8 (1978).

718 Id. [emphasis added].

719 Id, at 727-8.

http://www.mpaa.org/

http://www.missingkids.com/



Playboy decision – See “United States v. Playboy Entertainment Group” PVR – See “DVR.” Reno v. ACLU – The historic 1998 Supreme Court decision which struck down the

Communications Decency Act of 1996, a law that sought to ban the transmission over the Internet of speech or materials that were “obscene or indecent.” (See “CDA.”) The Supreme Court held that a law that places a “burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving” the same goal.720 (Also see “Less restrictive means test.”)

RIAA – The Recording Industry Association of America (www.riaa.com) represents the

interests of America’s major record labels. RIAA created a voluntary labeling effort on behalf of record companies and producers who, working with their artists, decide which of their songs and products receive an explicit label. The black-and-white “Parental Advisory – Explicit Content” label is affixed prominently to the outside of the permanent packaging and embedded in the digitally delivered files. Artists and producers also have an option to release a “non-explicit” version of the same song or product with the appropriate modifications. Some retail stores refuse to carry albums with the parental advisory.

RTA – The “Restricted to Adults” (RTA) website metadata labeling initiative was created

by the Association of Sites Advocating Child Protection (ASACP), a nonprofit organization founded in 1996 by the adult entertainment industry to eliminate child pornography from the Internet. (www.asacp.org) The RTA label is a metadata descriptor that all adult entertainment website operators are encouraged to use to help parents who wish to block access to adult content. (See “Metadata.”) Incidentally, websites using the RTA metadata tag can use it in conjunction with more descriptive ICRA metadata labels. (See “ICRA.”)

Safe search filters – Major search engines (ex: Google, Yahoo, Microsoft) offer built-in

filters that can block a great deal of the potentially objectionable content that users might inadvertently stumble upon when using search engines. These safe search filters usually have three levels of restrictiveness (strict, moderate, and unfiltered). These filters block both objectionable text and images.

“Server-side” filtering – Refers to filtering services offered by Internet service providers

as part of their online offerings to consumers. Filters are installed on the ISPs servers and attempts to block objectionable content before it reaches the consumer. These services are often offered free of charge, or for a small additional fee, when

720

Reno v. ACLU, 521 U.S. 844 (1997).

http://www.riaa.com/

http://www.asacp.org/



subscribers sign up for monthly Internet service. ISPs typically offer automatic updates for these services such that consumers need not manually download upgrades to stay current. (Also see “Client-side” filtering.)

Social networking – Although the term is evolving, it generally refers to a website or

online service that allows users to create profile pages and provide information about themselves while networking with others in a variety of ways (e-mail, IM, chat, etc).

United States v. Playboy Entertainment Group (2000).721 In the Playboy case, the

Supreme Court struck down a portion of the Communications Decency Act (see “CDA”) that required cable companies to “fully scramble” video signals transmitted over their networks if those signals included any sexually explicit content. Echoing its earlier holding in Reno v. ACLU, the Court found that less restrictive means were available to parents looking to block those signals in the home. Specifically, the Court argued that:

[T]argeted blocking [by parents] enables the government to support parental authority without affecting the First Amendment interests of speakers and willing listeners—listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests.722

More importantly, the Court held that: It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.723

V-Chip – Refers to the technologies that, according to FCC regulations, must be embedded in all televisions 13 inches and larger to give households the ability to screen televised content by ratings that are affixed to almost all programs. The V-Chip can be accessed through the setup menus on televisions. Households can then use password-protected blocking to filter programs by rating. The rating system, which was established by television and motion picture industry, offers seven age-based

721

United States v. Playboy Entertainment Group, 529 U.S. 803 (2000).

722 Id. at 815.

723 Id. at 824.



designations and several content descriptors to better inform parents and all viewers of the nature of the content they will be experiencing.724

VOD – Video on demand services allow consumers to call up video programming at their

leisure. Consumers are usually given the ability the pause, fast-forward, rewind, and sometimes even archive their programming. (Also see “DVR.”)

Walled garden – Generally refers to any Internet service or website that tightly restricts

access or functionality. Some walled garden tools or Internet portals use a combination of blacklists and whitelists to drive children only to sites that have been screened and pre-approved. (See “Blacklists” and “Whitelists.”)

Whitelists – A list of websites that is approved by an individual or an Internet filter.

Whitelists are usually created in conjunction with Internet filters. (See “Filters.”) Parents can use filters to block child access to objectionable content but then whitelist websites which they find acceptable. Some walled garden tools or Internet portals use whitelists to drive children only to sites that have been screened and pre-approved. (See “Walled gardens” and “Blacklists.”)

724

Available at: www.tvguidelines.org/ratings

http://www.tvguidelines.org/ratings.asp



XIV. Related Progress & Freedom Foundation Publications

Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics,’ by Adam Thierer, Inside ALEC, July 2009, at 16-17.

Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer, by Adam Thierer, Progress on Point 16.13, July 8, 2009.

Cyberbullying Legislation: Why Education is Preferable to Regulation, by Berin Szoka & Adam Thierer, Progress on Point 16.2, June 19, 2009.

COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” by Berin Szoka & Adam Thierer, Progress on Point 16.11, May 2009.

Implementation of the ‘Child Safe Viewing Act of 2007,’ by Adam Thierer, Comments to the Federal Communications Commission, MB Docket No. 09-26, April 15, 2009.

Who Needs Parental Controls? Assessing the Relevant Market for Parental Control Technologies, by Adam Thierer, Progress on Point 16.5, February 27, 2009

FCC v. Fox and the Future of the First Amendment in the Information Age, by Adam Thierer, Engage, February 20, 2009.

Statement Regarding the Internet Safety Technical Task Force’s Final Report to the Attorneys General, by Adam Thierer, January 14, 2008.

Don’t Scapegoat Media: Negative Impact Must Be Balanced Against Technology’s Many Benefits, by Adam Thierer, Progress Snapshot 14.24, December 9, 2008.

Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008.

Dear Gov. Patterson…Regarding that Video Game Bill You Are About to Sign, by Adam Thierer, Progress Snapshot 4.15, July 17, 2008.

The Perils of Mandatory Parental Controls and Restrictive Defaults, by Adam Thierer, Progress on Point 15.4, April 11, 2008.

Video Games & Public Policy, by Adam Thierer, slide show presentation at Penn State University conference, “Playing to Win: The Business and Social Frontiers of Videogames,” April 4, 2008.

Congress, Content Regulation, and Child Protection: The Expanding Legislative Agenda, by Adam Thierer, Progress Snapshot 4.4, February 6, 2008.

The MySpace-AG Agreement: A Model Code of Conduct for Social Networking? by Adam Thierer, Progress on Point 15.1, January 2008.

Cyber Safety in a Web 2.0 World: What Parents and Policymakers Need to Know, by Adam Thierer, The Honorable Melissa L. Bean, Sharon Miller Cindrich, Larry Magid, Nancy E. Willard, Progress on Point 14.25, December 27, 2007.

Parental Control Perfection? The Impact of the DVR and VOD Boom on the Debate over TV Content Regulation, by Adam Thierer, Progress on Point 14.20, October 2007.

Two Sensible, Education-Based Legislative Approaches to Online Child Safety, by Adam Thierer, Progress Snapshot 3.10 September 2007.

http://www.alec.org/am/pdf/Inside_July09.pdf

http://www.pff.org/issues-pubs/pops/2009/pop16.13-five-online-safety-task-forces-agree.pdf


http://www.pff.org/issues-pubs/pops/2009/pop16.11-COPPA-and-age-verification.pdf

http://www.pff.org/issues-pubs/filings/2009/041509-%5BFCC-FILING%5D-Adam-Thierer-PFF-re-FCC-Child-Safe-Viewing-Act-NOI-%28MB-09-26%29.pdf




http://www.pff.org/issues-pubs/ps/2008/ps4.24scapegoatmedia.html

http://www.pff.org/issues-pubs/filings/2006/061130-3dCir06-3575CDT-ThiererAmicus.pdf


http://www.pff.org/issues-pubs/ps/2008/ps4.15pattersonvideogamebill.html

http://www.pff.org/issues-pubs/pops/pop15.4defaultdanger.pdf

http://www.pff.org/issues-pubs/testimony/2008/080404videogamespresentation.ppt



http://www.pff.org/issues-pubs/pops/pop14.25cybersafetyweb.pdf






Freedom of Speech and Press in the 21st Century: New Technology Meets Old Constitutionalism, by Laurence H. Tribe, Progress on Point 14.19, September 2007.

Who Killed TV ’s ‘Family Hour’? by Adam Thierer, City Journal, Fall 2007.

Convergence-Era Content Regulation: S. 602, 'The Child Safe Viewing Act of 2007’, by Adam Thierer, Progress on Point 14.17, August 1, 2007.

Why Regulate Broadcasting: Toward a Consistent First Amendment, by Adam Thierer, 15 School CommLaw Conspectus 2, at 431-482, July 10, 2007.

Images Kids See on the Screen, Testimony by Adam Thierer, before the Subcommittee on Telecommunications and the Internet, House Committee on Energy and Commerce, June 22, 2007.

Cable's Commitment to Online Safety, by Adam Thierer, Progress Snapshot 3.7 June 2007.

The Right Way to Regulate Violent TV, by Adam Thierer, Progress on Point 14.10, May 14, 2007.

Age Verification for Social Networking Sites: Is it Possible? Is it Desirable?" [event transcript], Progress on Point 14.8, May 11, 2007.

Social Networking and Age Verification: Many Hard Questions; No Easy Solutions, by Adam Thierer, Progress on Point 14.5, March 21, 2007.

Rep. Bean’s ‘SAFER Net: An Education, by Adam Thierer, Progress on Point 14.3, February 22, 2007.

Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation in the U.S. 2nd Circuit Court of Appeals in the matter of Fox Television Stations v. FCC, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, November 30, 2006

Saving Online Free Speech: A Voluntary Code of Conduct for Internet, by Adam Thierer, Progress Snapshot, 2.19

Social Networking Websites & Child Protection: Toward a Rational Dialogue, by Adam Thierer, Progress Snapshot 2.17, June 2006.

Is MySpace the Government's Space?, by Adam Thierer, Progress Snapshot 2.16, June 2006.

Fact and Fiction in the Debate Over Video Game Regulation, by Adam Thierer, Progress on Point 13.7, March 2006.

Examining the FCC's Complaint-Driven Broadcast Indecency Enforcement Process, by Adam Thierer, Progress on Point 12.22, November 2005.

Content Regulation Without Frontiers: Why the EU is Indeed Regulating the Internet, by Patrick Ross, Progress Snapshot 1.24, December 2005.

New Worlds to Censor, by Adam Thierer, Washington Post, June 7, 2005.

Can Broadcast Indecency Regulations Be Extended to Cable Television and Satellite Radio? by Robert Corn-Revere, Progress on Point 12.8, May 2005.

’Kid-Friendly’ Tiering Mandates: More Government Nannyism for Cable TV, by Adam Thierer, Progress Snapshot 1.2, May 2005.

Thinking Seriously about Cable & Satellite Censorship: An Informal Analysis of S-616, The Rockefeller-Hutchison Bill, by Adam Thierer, Progress on Point 12.6, April 2005.

http://www.pff.org/issues-pubs/pops/pop14.19tribetranscript.pdf


http://www.pff.org/issues-pubs/pops/pop14.17pryorchildsafetyviewingact.pdf

http://commlaw.cua.edu/articles/v15/15_2/Thierer.pdf

http://www.pff.org/issues-pubs/testimony/2007/070622imageskidsseescreen.pdf

http://www.pff.org/issues-pubs/ps/2007/ps3.7cablecodeconduct.pdf

http://www.pff.org/issues-pubs/pops/pop14.10rightwayregulateviolenttv.pdf







http://www.pff.org/issues-pubs/ps/2006/ps_2.17_socialnet.pdf

http://www.pff.org/issues-pubs/ps/2006/ps_2.17_socialnet.pdf




http://www.pff.org/issues-pubs/ps/2005/ps1.24eu.html


http://www.pff.org/issues-pubs/pops/pop12.8indecency.pdf

http://www.pff.org/issues-pubs/ps/2005/ps1.2familyfriendlytiering.pdf

