Congress, Content Regulation, and
The Expanding Legislative Agenda
Release 4.4 February 2008
by Adam Thierer*
View as PDF
Though not yet complete, the 110th session of Congress has already witnessed an explosion of legislative proposals dealing with online child safety, or which seek to regulate media content or Internet communications in some fashion. More than 30 of these legislative proposals are cataloged in a new joint legislative index that was released today by the Center for Democracy and Technology (CDT) and the Progress & Freedom Foundation (PFF).
John Morris, Senior Counsel at CDT, and I compiled this index to help ourselves and others keep track of the growing volume of legislative activity on these fronts. Each bill is indexed according to title and topic, the chamber in which it was introduced, and the agency or organization that the measure affects or empowers. The entry for each bill includes: a concise summary of the legislative proposal, a link to the legislation, and links to relevant analysis by CDT or PFF. The compendium will be placed on both the CDT and PFF websites and updated as needed. The index will hopefully make it easier for the public and the press to analyze ongoing legislative developments pertaining to online child safety or free speech.
Although an exact count of related legislative activity in previous sessions of Congress is not available, there is little doubt that lawmakers have been more active on this front during this session of Congress than ever before. That, in and of itself, is probably cause for some concern since it means the Internet, media operators, and other speakers run the risk of being subjected to greater regulatory burdens. Indeed, many of the measures we highlight in the index raise serious free speech concerns. Perhaps the best way to examine current proposals is to divide them into "Analog Era" (pre-Internet) versus "Digital Era" (post-Net) platforms or forms of content that they would affect.
Holding onto the Past
In terms of "Analog Era" regulation, Congress still exhibits a healthy appetite for controlling content on broadcast and cable platforms. In the previous session of Congress, lawmakers implemented a ten-fold increase in the potential maximum fines that the Federal Communications Commission (FCC) could impose on broadcast radio and television operators for airing "indecent" content.
In this session, Congress has shown an eagerness to expand the old regime again in the form of S. 1780 and H.R. 3559, the "Protecting Children from Indecent Programming Act." That measure would make it clear that the utterance of even a single "fleeting explicative" on broadcast television or radio could be subjected to the FCC's steep new penalties. This is an attempt by Congress to prop up the FCC's expanded regulatory efforts in this area, even as the constitutionality of the agency's recent actions is being reviewed in the courts. Regardless of how those court battles turn out—and one lower decision is already heading to the Supreme Court for review—it is increasingly clear that the imposition of stiff new financial penalties on just one segment of our modern, multi-channel, multi-media universe—broadcasters—is both radically unfair and a largely ineffective method of shielding children from potentially objectionable content.
On the cable TV front, H.R. 2738, the "Family and Consumer Choice Act of 2007," represents a misguided effort to upend long-standing business models in the name of "cleaning up" the pay TV marketplace. Cable and satellite providers would either have to: (1) self-censor indecent content on their basic tiers; (2) block channels subscribers did not want and then rebate them the cost of that channel; or (3) offer a "family-friendly" tier of programming. The proposal raises a host of constitutional issues since lawmakers are venturing into unprecedented waters. More importantly, such regulation simply wouldn't do much to change the complexion of the pay TV market. The channels and material congressional lawmakers are hoping to discourage would continue to thrive while some niche programming options disappeared. And much of that video content is also available online, too.
Other measures featured in the index are as silly as they are misguided. Consider H.R. 3676, the "Family Friendly Flights Act," introduced by Rep. Heath Shuler (D-NC). It would have the federal government monitor movies shown in airplanes by requiring that each flight offer as "child safe viewing area." There are better ways of dealing with potentially objectionable content on private flights than by empowering federal regulators to become the censors of the skies.
Another silly measure is S. 568, the "Truth in Video Games Rating Act," sponsored by Sen. Sam Brownback (R-Kan). It would require the Entertainment Software Rating Board (ESRB), the video game industry's official rating organization, to review all the content within a game before affixing a final rating. The bill would also make it illegal for a game developer to embed hidden content within a game that is submitted for rating. Such a mandate reveals the ignorance of many legislators about modern media content. Video games aren't linear and short in duration like a movie or TV show. Players can take games in multiple directions, and total game play time can last for many, many hours. If the ESRB had to review every second of game play, the rating system would likely come to a screeching halt. And the other provision of S. 568, which would make it a crime to embed hidden content, raises practical questions about how far the law can or should go to micromanage hidden content or "Easter eggs" that are embedded in various types of media content. (Perhaps Congress should force the RIAA to play all albums backwards to listen for subliminal messages before deciding if a parental warning label is attached!)
Convergence-era Content Regulation?
Turning to "Digital Era" issues, Sen. Mark Pryor (D-Ark.) introduced an interesting measure last summer called the "Child Safe Viewing Act," S. 602. In many ways, it is a bill that straddles the divide between the Analog and Digital eras. The measure, which passed out of the Senate Commerce Committee after being modified slightly, requires that the FCC study "advanced blocking technologies" that can operate independent of existing ratings systems. Additional private parental controls and rating systems are always welcome, of course. But a plethora of private tools and rating systems already exist. By opening the door to greater FCC study of independent controls, as S. 602 proposes, the possibility exists that the agency would seek to undermine or regulate existing tools and rating systems. S. 602 also stipulates that the FCC must examine the effectiveness of parental controls across a wide variety of distribution platforms, including "wired, wireless, and Internet platforms." That opens the door to the expansion of the FCC's content control efforts, which would raise serious First Amendment concerns.
Another example of a measure that could open a Pandora's Box of unintended consequences is the "Cyber Safety for Kids Act," S. 1086, which was also sponsored by Sen. Pryor along with Sen. Baucus (D-Mont.). The bill proposes mandatory website labeling for material that is "harmful to minors." The National Telecommunications and Information Administration (NTIA) would be required to develop metadata tags for such content, which essentially means the creation of government rating system for websites. Those tags would then need to be registered with ICANN, even though it is unclear how it would work if other countries refused to utilize or enforce the same system. Finally, the measure also requires that age verification mechanisms be used to block access to such material once the tags are in place. Mandatory age verification raises a host of sensitive privacy issues as well as some free speech concerns. Practically speaking, the entire proposal seems highly unworkable and is probably unconstitutional.
Social networking websites continued to attract the attention of legislators this past year. H.R. 1120, the "Deleting Online Predators Act" (DOPA) would regulate access to social networking websites for schools and libraries that receive federal funding via the FCC's "e-rate" program. The measure, which was introduced by Rep. Mark Kirk (R-IL), has 90 bipartisan cosponsors. It has also been included in S. 49, the "Protecting Children in the 21st Century Act," which was sponsored by Sen. Ted Stevens (R-Alaska). DOPA sponsors argue that social networking sites are havens for online predators or child pornography. Unfortunately, however, censoring these sites will do little to weed out those problems and instead merely block access to sites that are generally socially beneficial.
Sensible Education and Law Enforcement Initiatives
Not all congressional measures are so misguided or raise the same sort of constitutional concerns as the bills mentioned above. For example, Rep. Mellissa Bean (D-IL) introduced a very sensible bill, H.R. 3461, the "Safeguarding America's Families by Enhancing and Reorganizing New and Efficient Technologies Act" (or "SAFER-NET Act"), that requires the FTC to establish a new division to coordinate online safety efforts. Specifically, the measure would create a nationwide online safety awareness / education effort. The bill is good example of an "educate first" approach to online child safety issues. H.R. 3461 passed the House of Representatives last November and similar provisions were introduced in the Senate by Sen. Stevens as part of S. 1965, the "Protecting Children in the 21st Century Act."
Also in the Senate, Sen. Robert Menéndez (D-N.J.) introduced S. 2344, the "Internet Safety Education Act," which directs the Department of Justice to award $10 million in competitive grants to create Internet safety education programs, aimed at both children and parents. While it would probably be more sensible for the Department of Education or the FTC to be awarding such grants, the bill's focus on education and empowerment is commendable.
Finally, a significant number of the measures introduced this session call for stepped up enforcement efforts aimed at combating online child predation or child pornography. Many of the provisions found in these bills are relatively uncontroversial, such as the call for stepped up funding for the National Center for Missing and Exploited Children, or more funding for law enforcement training efforts. For example, S. 1738, the "Combating Child Exploitation Act," and H.R. 3845, the "Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children Act" (or "the PROTECT Our Children Act"), both fund a wide variety of sensible training and enforcement efforts. Also, there are sensible provisions found in some bills that would stiffen penalties for convicted sex offenders.
However, some measures run into dangerous territory when they call for sweeping data collection mandates on Internet Service Providers (ISPs). For example, H.R. 837, the "Internet Stopping Adults Facilitating the Exploitation of Today's Youth Act" (or "SAFETY Act"), would demand that the Department of Justice impose tough data collection requirements on ISPs. Although well-intention, extensive data retention mandates would force ISPs to collect a great deal of routine information about users and their web-surfing habits. That obviously raises serious speech and privacy concerns.
In conclusion, this new CDT-PFF joint compendium of legislative activity shows that federal lawmakers have a growing appetite for regulating media content and online communications. Some of this legislative activity is warranted since it addresses legitimate threats, specifically, harm to children. But a great deal of the legislation being proposed today goes much further in an attempt to ostensibly sanitize the Internet and modern media platforms and content.
While Congress is right to take steps to protect children against actual harms—namely, child predation and child pornography—it would be unwise for lawmakers to expand the censorial schemes of the past. The better approach for potentially objectionable, but legal, content is to use education and empowerment-based strategies. Again, parents already have a multitude of tools, controls, and information at their disposal to establish their own household standards regarding acceptable media content.
Of course, to be fair, only a few of the measures introduced this session have been passed in either chamber, and none of them have reached the President's desk and been enacted into law. Thus, it would be a wrong to strike an alarmist chord about legislative activity on this front. Nonetheless, in the face of a growing legislative agenda, it is important for those concerned about speech and privacy rights to remain vigilant.