The Voice of the eCommerce Industry

Redbook on Facebook (and sharing information online)

It’s not often that you see advice on Internet privacy sandwiched between articles on “4 Times it Pays to Splurge” and how to “Be a Full-time Mom with a Part-time Passion.” But online privacy is such a hot topic that even Redbook, the women’s magazine, has a story in its August issue.  The article is an informed, well-balanced look at providing practical tips (well it should be, I was interviewed for it!) on being secure and private when on various Internet sites:

If you're a LIVE-LIFE-OUT-LOUD GIRL (i.e., you offer a play-by-play of your life to your 1,000 Facebook friends, blog readers, and Twitter followers), these are the guidelines you — and everyone — should follow:

• On your social networking profiles, take the time to check out the privacy settings and decide whom you want to have access to what information. The risks here aren't great, but do you really want your cousins to read about your sex life, or your frenemy to see photos of the party you didn't invite her to?
• If you're on a public wireless network, like at Starbucks, don't do your online banking or log on to other sites that contain sensitive information about you. Other users accessing the network might be able to access it.
• Teach your kids about the risks of sharing personal information on the Web. If it feels appropriate for your child, bring up the countless cases of tweens' and teens' personal photos and videos that have ended up in the wrong inboxes because of how easy it is to forward email. Have a conversation about what sites they're visiting online, and make sure they're staying safe by signing up for a free limiting service such as AOL Parental Controls, which allows you to log in and monitor their activity. Check with your wireless carrier for similar services on your kids' phones, too.

There's more tips if interested, or read about unboring veggies sides for grilled food.

-Braden Cox

Online Safety Presentation at IGF-USA Now Available on Video

Here’s a summary and video excerpt of the presentation I gave a couple of weeks ago on a panel about online safety at IGF-USA,  a national body that reports to the full Internet Governance Forum.  I discussed the NTIA OSTWG “Youth Safety on a Living Internet” report, among other online safety issues such as sexting, cyberbullying.

It was a good panel that featured Danny Weitzner (Associate Administrator, Office of Policy Analysis and Development U.S. Department of Commerce) as moderator and Michael W. McKeehan (Executive Director, Internet and Technology Policy, Verizon), Jennifer Hanley, Family Online Safety Institute (FOSI), and Stacie Rumenap (Stop Child Predators) as panelists. 

-Braden Cox

NetChoice Comments On FTC's COPPA Rule Review

NetChoice filed comments yesterday with the Federal Trade Commission on its current review of the Children's Online Privacy Protection Act (COPPA).

We focus our response to the request for comments in four specific areas, and ask that the Commission:

1. Maintain the current age threshold at twelve years and under

2. Retain the “actual knowledge” standard

3. Clarify that states may not enact laws that conflict with COPPA

4. Conclude that geolocation & IP Address data are not individually identifiable information, and that COPPA already applies to the mobile Internet.

Regarding the second point, COPPA applies when a website is directed to children. But COPPA also applies when a website operator that has “actual knowledge that it is collecting personal information from a child” from children 12 and under. In any new COPPA rules, the Commission should maintain a strict construction of what it means to have “actual knowledge” and apply COPPA when website operators know in-fact that they have collected information from children.

The COPPA rule does not define “actual knowledge.” Generally, it is viewed as a heightened requirement for a mental state of possessing information. In the context of COPPA, “actual knowledge” would apply when a site learns a child’s age by asking for and receiving information from which it can determine age.

The “actual knowledge” standard is an important one for continued innovation on the Internet and for the future of user-generated content. It ensures that only culpable actors—sites that know they’re collecting information on children—are held liable for violating COPPA. At the same time, it prevents regulators from piecing together bits of information and determining on their own that a site should have known it was collecting information from children.

At the Commission’s COPPA Rule Review roundtable, we heard panelists describe how Congress initially considered a lower “knowingly” standard. This standard would have imposed a “should’ve known” obligation. A “knowingly” standard is more akin to a “constructive knowledge” standard, not actual knowledge. It would burden websites into mining data, to be sure that they would not be accused that they should’ve known.

COPPA compliance should not be a matter of shoulda, woulda, coulda. The Commission should reinforce its commitment to enforce the actual knowledge standard in ways that will not innocently trip up website operators.

-Braden Cox

California Bill Prevents Social Networking Sites from Displaying Home Address & Telephone # – How can this be…bad?

There’s a bill moving in California (SB 1361) that restricts how social networking sites display the personal information of 13 to 17 yr olds. It’s billed as a privacy bill and at first glance seems relatively harmless -- after all, kids don’t need to be broadcasting their contact information, right? Maybe. It all depends.  

It depends on the situation, obviously. We teach our kids to recognize risky situations and to react appropriately.  

But whether or not teens are at risk by publishing their telephone numbers is not the threshold question here. The law presumes such and I’m not aware of any specific findings offered in testimony about the bill.

Instead, the issue at hand is whether we need a law to restrict social networking websites from publishing certain information from teenagers. And with any law, there’s always the corresponding principle of unintended consequences.  

A bit more about the bill. It restricts a social networking website from displaying the home address and telephone numbers of minors who self-identify as being under 18. It only applies to “web fields specifically designated to display the registered user’s home address or telephone number” – recognizing the impracticality of having hundreds of thousands of websites police every area where kids can share information.

Arguing against bills that aim to protect children is really hard work – who can be against the children (or in this case, adolescents)? But I truly believe this bill has serious unintended consequences and sets a bad precedent for how minors are allowed to share information on the Internet. 

Here’s why SB 1361 shouldn’t become law:

• It’s a one-size-fits-all approach that encourages kids to lie about their age. If a teen can't share this info in a pre-prescribed field, they will either share it in a general space, share it via text or email, or lie about their age in order to share the info.---thereby circumventing a site’s safety features.
• It undercuts existing safety solutions and the sort of “teachable moments” endorsed by the NTIA OSTWG and Berkman Internet safety reports.
• It wrongly assumes that predators discover a kid’s home address or telephone number through the Internet and then contact them offline (instead, we know that at-risk kids are groomed online, not offline).
• It provides a false sense of security to parents.
• Finally, it’s better to educate teens on how to properly give out their contact information than to have the government do it for them.

The bill is before the Assembly, having been referred to the Arts/Entertainment committee. It will likely be heard in the next week or two, and has already passed the Senate.

-Braden Cox

Online Safety Technology & Safety Working Group Submits Report to NTIA – Time for Congress to Act

Over the past year, OSTWG (which includes NetChoice members AOL, News Corp, and Yahoo) has discussed online safety research and debated the best policies. Our goal was to build a record for our final report to Congress. The report is complete and available on the NTIA website, and I’m proud to say that it’s a tremendously informative review of the current state of online safety. 

But a report is only as good as what decision-makers do with it. Again and again child safety experts get together. Again and again education (not regulation) is a primary solution for online safety. Yet policymakers have largely ignored that recommendation. Will this time be any different? Let's hope so.

The quotes below highlight why we need to educate our teens and young children to be more “digital literate”:

This one by Larry Magid (an OSTWG member) over at the Huffington Post:

What we concluded is that we need to go beyond worrying about predators and pornography and start thinking about young people as active participants - true citizens - in an increasingly interactive online environment where young people are just as likely to create content as they are to consume it.

And Cecilia Kang of the Washington Post quotes Hemu Nigam (a co-chair of OSTWG):

“Thanks to the growing body of youth-online-risk research, we are now able to seek solutions as a society which are fact-based, not fear-based, but also that minors themselves – mainly pre-teens and teens – have a role to play in improving their own safety online and that of their peers,” the group said in its report.

Finally, Adam Thierer (an OSTWG member) blogs:

Importantly, OSTWG accomplished our charge without resorting to the “moral panic” tone that some have adopted when approaching these issues and concerns. While there are serious challenges and concerns surrounding discussions about child safety, it’s important to acknowledge the important benefits of new media and communications technologies to us and our children. We have done so in this report.

Hopefully Congress will accept this report and run with it. And a good start would be the creation of a national digital media literacy campaign, something that NetChoice would happily support and help develop. Anyone?

-Braden Cox

Like a Kid in a Candy Store, Parental Supervision Still Needed for FTC Rulemakings

Congress gets dinged a lot for slowing down innovation, but sometimes that is just what the doctor ordered. Thirty-five years ago, a Democratically controlled Congress passed the Magnuson-Moss Act in an attempt to check a hyperactive FTC.

Like a kid set loose in a candy store, the FTC at the time had gone on a binge of overreaching and harmful regulation. The core enabler of this action is the exceptionally broad mandate bestowed on the agency to regulate all “unfair” consumer activity. Unlike regulating the structural stability of bridges or safety in food, “fairness” is a subjective concept.

Congress’ prudent action to place special restrictions on FTC rulemaking [15 U.S.C. Sect. 57a(b)(2)(A)] was in direct response to the agency’s overreach and regulation of activities that would have included advertising children’s products – in essence, acting like a kid in a candy store. Magnuson-Moss was the equivalent of putting the candy behind the counter, providing Congress and courts control over how much candy was appropriate. 

Now, 35 years later, the FTC has that 'unfairness feeling' again. In a NY Times interview last month, FTC Chairman Jon Leibowitz signaled his intent to change standard marketing tactics of disclosure and opt-out, by requiring users to opt-In for collection of information for targeting ads.   They are concerned about what's "fair" in advertising, but we know that low rates of opt-in will reduce ad revenue. If the change were put into effect, free online services might have to charge a "fare" to users.

At the same time, the FTC is seeking to shed what the Chair called "medieval restrictions" on its rulemaking powers.  A change that would allow the FTC to move quickly to require opt-in. Taken together, these threats to online services and e-commerce are #1 on the 2010 iAWFUL list.

Earlier in the 111th Congress, legislation was passed in the House to reform financial services regulatory mechanisms. The bill expanded FTC rulemaking authority, even though the FTC wasn't blamed for failing to regulate trade that contributed to the financial crisis.

A similar Senate bill addressing financial regulatory reform did not change FTC rulemaking powers.  Fortunately, at a Senate Commerce hearing on February 4, several Senators challenged Chairman Leibowitz as he made the case for an expedited rulemaking process.

The specific purpose of the Magnuson-Moss Act was to enact safeguards that restrain the FTC’s ability to unilaterally deem certain practices “unfair” and, in turn, to expand its authority in many areas including banning broad categories of advertising.

These safeguards include important procedures that allow for enhanced stakeholder participation, require a detailed evidentiary record before the FTC can create new rules, and enable courts to scrutinize rulemakings as a valuable check to ensure proper process and evidentiary support.     

The current process through which the FTC promulgates rules, as established by the long standing Magnuson-Moss Act, is a proven and effective vehicle for the regulation of business that provides the Commission with authority to punish businesses that act in a deceptive manner.

Chairman Leibowitz argued that his agency strains to make timely rules. But Congress has demonstrated time and again that when it wants the FTC to move quickly, it will direct the FTC to do so. For example, both the COPPA and CAN-SPAM laws gave the FTC rulemaking authority – under the expedited APA process [5 U.S.C. Sect 553] – allowing the FTC to issue regs quickly.

The bottom line is that new regulations are not necessary to hold legitimate businesses accountable for their actions. Outlaws who spam and scam are STILL spamming and scamming after the FTC issued regulations.  

A new era of increased regulatory promulgation at the FTC would harm law-abiding competitors and consumers while failing to address those who operate outside the law. To address these individuals, aggressive enforcement seems more relevant than expanded regulation.

This is why the FCC’s campaign for an expedited rulemaking process is the equivalent of handing a child the keys to a candy store, and the reason why it tops the 2010 iAwful list.

NetChoice Files Comments to FCC on Empowering Parents and Protecting Children in an Evolving Media Landscape

NetChoice filed comments today with the Federal Communications Commission in its inquiry on Empowering Parents and Protecting Children in an Evolving Media Landscape.

As we explain in our comments, the great majority of youths experience an enriching, enlightening and safe online environment. Online risks to youth—in the form of inappropriate content, advertising, or criminal predation—must be tempered with the overwhelming benefits online communities and content provide to today’s youth.

We then highlight the numerous studies, including from Harvard Berkman and the Progress and Freedom Foundation, that document the way that technology helps empower parents to control their child’s Internet experience. We discuss a comprehensive legislative approach developed by the online industry that combines education, parental empowerment, and law enforcement. We also dismiss one technology that has previously been touted as a way to keep kids safe online – age and parental verification:

Teens are very active users of Internet websites. To verify parental consent, parents would have to provide identifying data (most often credit card information) to a myriad of sites and services. This would require private companies to store vast amounts of parents’ personal information and, by doing so, increase customers’ vulnerability to security breaches and identity theft. According to the Berkman study, “there are significant potential privacy concerns and security issues given the type and amount of data aggregated and collected by the technology solutions….” Many online companies have moved away from collecting and storing this type of data for good reason. 

Finally, we asserted our belief that the FCC lacks jurisdiction to regulate online media platforms. Neither the Telecommunications Act of 1996 nor the Children’s Television Act of 1990 provides the Commission with the authority to regulate online media content. Furthermore, if the FCC were to pursue regulation of the Internet in the same manner it regulates broadcast and cable television, we believe there would be serious first amendment implications.

The lack of FCC jurisdiction notwithstanding, online safety is an important and evolving issue. NetChoice and our members will continue to work with state and federal policymakers and law enforcement agencies to better protect children online.

-Braden Cox

Colorado Creates Statewide Internet Safety Program

Congrats to the Entertainment Software Association and Web Wise Kids for working with the State of Colorado to institute an online safety program to educate parents. 

This is the kind of educational initiatives that we like to see, and which is an important part of the NetChoice online safety model legislation.

Participatory Medicine via Online Social Networking

Great NPR story today on how online social networking is helping to bring medical patients together to talk about their conditions and compare treatments.

The story quotes Susannah Fox of the Pew Internet and American Life Project:

"They are posting their first-person accounts of treatments and side effects from medications," says Fox. "They are recording and posting those podcasts. They're tagging content. They are part of the conversation. And that, I think, is an indicator of where we could be going in terms of the future of participatory medicine."

For every story that talks about the bad on the Internet, there are are hundreds of positive examples about how online communities improves lives. If only we can get the doctors to use online technology more often....

-Braden Cox

OSTWG Discusses Parental Controls for Child Safety

Emerson once said that we should do the thing we fear, and then death of fear is certain. Similarly, parents that fear their child's use of technology can use technology themselves to monitor, filter and block their children's Internet use.

I'm a member of the NTIA Online Safety and Technology Working Group (OSTWG). Our third meeting was on parental controls, child protection technologies and content rating methods. Adam Thierer organized a wealth of speakers to discuss tools available from ISPs, tools existing in operating systems, browsers, and search, and settings that exist in some social networking websites.

Here are the highlights:

• Safety experts praised AOL's parental tools that don't report to parents every site that a child visits. Child abuse, contraception, and other sites are the kinds that many people feel children have legitimate privacy (and in abusive situations even safety concerns for their lives) surrounding the sites they visit.
• A representative from the Department of Education asked about "best practices" -- a good idea in concept but given the diversity of online sites and services easier said then done.
• It is common to categorize children into age groups for parental controls but there's data lacking about how children understand advertising and what is the harm, if any.
• Age groups: 7 and below--white list only. 7-12--no white list only but lots of restrictions. 13-17--very permissive, lots of sites accessible. 17+--only porn images blocked.
• Google will soon be launching a national media digital literacy citizenship campaign.
• FTC will release its virtual worlds report on Dec 10. There is an OECD conference on e-commerce on Dec 8-10.
• "Report abuse" icons on websites are often themselves abused and result in false positives and false reporting. Uniform buttons won't work.
• The FCC wants to know why the V-Chip uptake has not been greater and has been ineffective (can comment on the FCC's NOI).
• Carrie James, a Harvard researcher, has a report that shows that a higher percentage of kids that play online video games are more ethical than their peers that do not (due to the community that's created playing games).

Next time we'll be discussing data retention issues and what this means for child safety.

-Braden Cox

What about the Children? The Emerging Case for a "Child Exception" to First Amendment Protections

What to do about the influences of media and advertising on children? Generally, the saying goes that where you stand depends on where you sit--but that was not apparent at today's event on children and media.

There were 4 seats (plus moderator) at the panel on "Media, Kids, and the First Amendment" that was co-hosted by Georgetown Law School and Common Sense Media--a professor, lobbyist, FCC regulator, and attorney general. Surprisingly, while there was common ground to be shared, only the lobbyist was truly advocating on behalf of a strong First Amendment.

The Professor: Angela Campbell. She doesn't see a need for differing legal analysis for broadcast TV or the Internet. Media is media. But she also would like to see all laws meant to protect children be subject to intermediate scrutiny by a court, not strict scrutiny (so that more regulations could be passed). She also thinks the fleeting expletives case (the Fox case) is a joke. Where does she sit? Mostly on the side of Free Speech. Some laws are necessary to protect children, but we need to focus on the harm and weigh the costs of passing law versus not passing law. But her call for intermediate scrutiny is troubling for free speech advocates.

The Lobbyist: Dan Brenner. He worries about laws regulation communications as being vague (what does "indecent" mean?) and overbroad (makes legitimate speech unlawful). The Maine predatory marketing law that NetChoice has engaged in is an example of being both vague and overbroad.  Where does he sit? Firmly on the side of Free Speech. Dan made a powerful case that regulators have better things to do than worry about the occasional F-word or wordrobe malfunction on TV.   

The Attorney General: Douglas Gansler. He trumped up the AG agreement with MySpace, talked up age verification as a way to solve our online ills, said Criagslist was running a virtual brothel with its adult ads, and talked about how Maryland teaches Internet safety in the schools. Where does he sit? On the other side of Free Speech. AG Gansler was disappointing. He talked tough on crime and forcing industry into "voluntary" agreements to effectuate his agenda. But it wasn't clear he had identified the harms. Statements such as "everyone agrees" or "you know it when you see it" just aren't nuanced enough coming from a state's highest ranking law enforcer.  

The FCC Regulator: Kim Matthews. She described the FCC's August report on Child Safe Viewing Act and the recent NOI about empowering parents and protecting kids. Where does she sit? It is hard to tell which side. Despite the fact that Kim works at the FCC (which is not known for its 1st Am sensitivities) she came across very evenhandedly. In response to my question about regulating health-related information, she said that kids rely on the Internet for valuable health information and that we shouldn't cut-off that access.    

Overall, it was the lobbyist Dan Brenner that was carrying the fist amendment flag. And while it is his clients that would be regulated, ultimately he's carrying the flag for citizens that would lose out if there were more speech restrictions. And while this was a panel devoted to the role of government, educational efforts and parental involvement are the first line of defense to what people might consider content and marketing not suited to kids. There has to be a better way at protecting children and preserving free speech than just passing more laws. 

"It's not really the statute that's confusing here, it's the technologies."

Just read this AP article that reported on a Tuesday hearing of the Ohio Supreme Court about an Ohio "harmful to minors" law. According to the article, the statute makes it illegal to distribute harmful material to minors through "direct communications by people who know or have reason to believe the recipient is a minor."

The case is in the 6th Circuit Court of Appeals, which has asked the Ohio Supreme Court to interpret "mass distribution" and "personally directed devices." Per the law:

2) A person remotely transmitting information by means of a method of mass distribution does not directly sell, [etc.] ... if either of the following applies:

(a) The person has inadequate information to know or have reason to believe that a particular recipient of the information or offer is a juvenile.
(b) The method of mass distribution does not provide the person the ability to prevent a particular recipient from receiving the information.

In the hearing (see the video) Justice Robert Cupp coins this beauty of a statement:  "It's not really the statute that's confusing here, it's the technologies." Judge say what?

Isn't the whole point of a statute to be applied to factual situations? Anything can make sense in the abstract (even law!). But applied to everyday life, the simplistic becomes complex -- and can have unintended consequences.

Such is especially true with laws that attempt to regulate Internet communications. The Ohio AG is attempting to narrow the statute by saying it applies only in situations where a speaker (1) directly communicates the harmful material, (2) knowing or has reason to know the recipient is a minor, and (3) the speaker has control over the medium -- ie. not applicable to general broadcasting (forums or chat rooms) but applicable where publishers can exclude or limit the audience (direct email).

Are these limitations enough to not cover legitimate communications on the Internet? The Plaintiff, American Booksellers Foundation for Free Expression, wants an exemption for the Internet. I generally think that it is best to not bifurcate the Internet and non-Internet worlds, particularly when we think of child safety issues (digital natives see the Internet as an extension of everyday life much more than us old fogies). 

Media Coalition has a page dedicated to the case here. Stay tuned.

-Braden Cox

Maine Committee Does the Right Thing, Recommends Repeal of Marketing Law

Sometimes legislators vote along political party interests, sometimes in their self interest, and as we saw in Maine--sometimes legislators will have the constitutional interests of free speech and the commerce clause in mind.

NetChoice traveled to Augusta last week to testify at a joint judiciary committee hearing of the Maine legislature. Our mission: persuade the committee members to repeal the Predatory Marketing Act, which became law just two months ago--and a law so bad that it ranked #1 on NetChoice's iAWFUL top ten list of worst legislation.

The law's potentially sweeping (negative) impact is a big deal. So big that the Maine legislature met out-of-session to re-consider it. It dedicated a webpage to the hearing and received over 30 comments from various interests, including comments from NetChoice.

The Act seriously restricts the exchange of information between Web 2.0 services and their users by making it unlawful to knowingly collect or receive health-related or personal information for marketing purposes from a minor, without first obtaining verifiable parental consent. In effect, the Act restricts advertising that is most relevant to user interests.

We arrived confident but with a "tail between our legs" feeling -- after all, we had just sued the state of Maine and agreed to a court order that said very favorable words about our chances to win on the merits. In the court case, NetChoice was joined by Reed Elsevier, the Maine Independent Colleges Association, and the Maine Press Association in calling for an injunction against the law, arguing that it tramples First Amendment rights while wreaking havoc with interstate commerce.

So here we were, with but a day or two to show how the existing law broadly harms a number of online services. We urged the Committee that any law should focus on actual harm to minors, without prohibiting the legitimate marketing and advertising that makes free content and Web 2.0 services possible. In addition to NetChoice, the committee heard from constitutional scholars, companies, and providers of health-related services.

The committee carefully considered all the testimony, but the right response was evident. Even the bill sponsors agreed that the law needed to be fixed (though there was disagreement as to how much). The committee unanimously recommended to repeal the existing law.

Although there still seems to be a lot of ambiguity about the original intent of the bill, the committee agreed that there are concerns with some marketing practices of healthcare products that are targeted to minors, and that the primary focus of the original bill  was the collection and transfer of personal information of minors for healthcare product marketing. Changes to the bill broadened the bill (it was already very broad) which made it obvious that the bill was unconstitutional and not fixable in present form.

The committee made the following recommendations:

• Leadership should find the earliest available opportunity to allow removal of the entire existing statute
• Should the bill be introduced, there may be ways to make it constitutional if it only applies to the personal information of children 12 and under, follows the requirements of COPPA, is narrowly tailored, and is based on full public hearings to create a sound public record and clear legislative intent.

So we're on track to see the law repealed sometime in January. But we'll also see the introduction of a new bill at that time, too. It is likely that enforcement of existing federal and state laws can address a great deal of the marketing tactics of concern to the bill sponsors.

Still, even after careful consideration of existing laws, there may be some unsavory marketing practices that fall through the gaps of existing regulation. NetChoice and its member companies stand ready to help craft legislation to close those gaps while preserving Maine residents’ access to helpful information and valued online services.

-Braden & Steve

Sticks and Stones Can Break Your Bones--and Words Can Land You in Jail

Why treat bullying online any different than if it occurred on the playground? That was one of the thoughts expressed at yesterday's Congressional hearing on cyberbullying and online safety.

Rep. Linda Sánchez (D-CA) has introduced the “Megan Meier Cyber Bullying Prevention Act” (H.R. 1966). The bill imposes criminal penalties on anyone who transmits in interstate or foreign commerce a communication "intended to coerce, intimidate, harass, or cause substantial emotional distress to another person, using electronic means to support severe, repeated, and hostile behavior."

While everyone expressed disdain for bullying, there was an even stronger concern that the bill would criminalize protected speech and violate first amendment rights.

Ranking Member Louie Gohmert (R-TX) was concerned about the inherent subjectivity and vagueness of what it means to "intimidate" or "harass." He said that speech is presumed protected, except for three narrow carveouts: 1) true threats; 2) fighting words; and 3) obscenity. He also said that this should be a state issue, not a federal crime.

Professor Robert O'Neil suggested that any new law criminalizing online harassment should incorporate the following elements: 1) intent; 2) a requirement that a particular person was targeted; and 3) evidence of harm and/or physical impact.

The "kicker" of the day came from John Palfrey of Harvard Law School -- repeal the CDA's Section 230 immunity for online companies. He asserted that there are instances where bad actors hide behind the statutory immunity who would otherwise be culpable under the common law. He believes that the good guys that have taken measures to protect user privacy and security (think MySpace, Yahoo, AOL, and Facebook) would have nothing to fear from not having statutory immunity. And while he acknowledged the positive impact on innovation that Section 230 has had for the online industry, he minimizes the legal costs that small websites would face if liable for the actions of their users. There's no doubt that many sites would simply cease to exist for fear of being sued.

Words can be hurtful and damaging, particularly if between children. There are ways short of imprisonment to combat bullying and intimidation. The better policy approach is to educate parents and kids and empower schools to punish students that bully.  But if there are true threats and illegal harassment, then it's time to get law enforcement involved.

-Braden Cox

Illinois Bans Sex Predators from Social Networking Sites

An Illinois bill to ban convicted sex predators from social networking sites (HB 1314) is now law. Gov. Pat Quinn signed the bill yesterday. Even if predation on social networking sites is very rare, we certainly prefer to see efforts that target bad actors instead of tech mandates or age verification requirements. Given the broad definition of "social networking website" in the law, the ban might apply to many types of Internet sites.

Definition:

"Social networking website" means an Internet website containing profile web pages of the members of the website that include the names or nicknames of such members, photographs placed on the profile web pages by such members, or any other personal or personally identifying information about such members and links to other profile web pages on social networking websites of friends or associates of such members that can be accessed by other members or visitors to the website. A social networking website provides members of or visitors to such website the ability to leave messages or comments on the profile web page that are visible to all or some visitors to the profile web page and may also include a form of electronic mail for members of the social networking website.

Sometimes the Truth is More Easily Expressed...through Puppets

This video from a puppet maker in Australia has an interesting take on the fear-mongering that often drives public policy for Internet safety. The video does a good job of putting into perspective the real risk to kids of online predation.

For instance, we often hear the scary statistic that “1 in 5 children are sexually solicited online.” This was based on data originally released by the National Center for Missing and Exploited Children (NCMEC). It’s since been updated to 1 in 7, which still sounds bad, but not so bad in perspective -- what does solicitation mean, and by whom? Well, “solicitation” is broadly defined to mean "unwanted contact." In the study, it encompasses any unwanted discussion of a sexual nature. But the real perspective comes from learning 90% of this unwanted contact comes from other peers or young adults! So, it's rarely the creepy perverted middle-age man in a wife beater t-shirt -- even though the messaging from many policymakers focuses almost entirely on this scenario.   

 

Louisiana Bill Taxes Internet Access Despite Federal Moratorium

There's a hearing going on as I write on a Louisiana bill (HB 569) that would create a new tax on the Internet bills of consumers, despite the fact that there's a federal moratorium prohibiting it.

We just heard Attorney General James D. "Buddy" Caldwell say that this isn't a "tax", it's a "fee."  Louisiana is taking an interesting approach – HB 569 would impose a tax of 15 cents per month on ISP subscribers that would go to preventing and prosecuting Internet-based crimes against children.  AG Caldwell claims that it is merely a “usage fee” -- the price we pay for using the Internet.

But the Internet Tax Freedom Act explicitly sought to prevent the imposition of a tax that simply used different terminology. The Act defines a tax as:

(i) any charge imposed by any governmental entity for the purpose of generating revenues for governmental purposes, and is not a fee imposed for a specific privilege, service, or benefit conferred; or
(ii) the imposition on a seller of an obligation to collect and to remit to a governmental entity any sales or use tax imposed on a buyer by a governmental entity.

Under this definition, a charge on Internet access is not like a fee imposed for recording a mortgage, for example. When you pay a recording fee, you pay for the costs you impose on the government for handling your transaction. If you were to pay a "usage fee" for law enforcement to deal with online safety, you're paying for general services, something that law enforcement/government should be doing anyway to protect the public.

States are cash-strapped right now. Louisiana is pursuing a worthy goal of trying to provide more resources for law enforcement for Internet safety. Taxing the Internet is just the wrong way to do it.

If Louisiana’s  law enforcement/criminal justice system needs more resources to pursue and control criminals, the state shouldn’t hesitate to re-allocate its revenue or even raise the taxes that already fund those efforts.  It’s absurd to tax ONLY Internet users when child predators do nearly all their evil in the physical world of school playgrounds and hotel rooms. Under the logic of the bill's proponents, we should also be adding to the hotel tax, or to the cell phone tax since conversations occur on cell phones.

UPDATE:  The bill was deferred by committee vote. This usually means that the bill is dead for the session.  

-Braden Cox

Nothing Nice on This List -- Introducing iAWFUL, a NetChoice Initiative

Some of the biggest threats to the Internet have always come from well-meaning lawmakers looking to "fix" it. And lately, there’s been a whole lot of fixin’ efforts going on.

At NetChoice, we've always been committed to challenging legislation that threatens our vibrant industry. Today more than ever, we need a more unified and systemic approach to combat bad legislation.

That's why we've created iAWFUL, the Internet Advocates Watchlist for Ugly Laws. 

iAWFUL identifies America's 10 worst legislative and regulatory proposals targeted at the Internet. Through iAWFUL, NetChoice will urge citizens to join the fight to defeat bills and proposals that threaten the future of ecommerce and online communication. The list will be continually updated to reflect the most immediate dangers, based on regulatory severity and likelihood of passage.

While misguided Internet legislation is nothing new, the threat that such legislation poses has increased dramatically. The latest breed of legislative proposals are among the most restrictive we've ever seen; they can crop up anywhere, as state lawmakers increasingly take the lead; and they threaten an Internet that increasingly lies at the heart of global commerce and communications.

State-based legislative efforts account for the majority of entries on iAWFUL, a stark indication of the growing push in statehouses to regulate and tax nearly every aspect of online behavior.

Topping the inaugural iAWFUL list is New Jersey's Social Networking Bill (A 3757), which would require the operators of social networking sites to aggressively police their users. In addition to stifling the free exchange of information and communication on social networking sites, the proposed bill would impose a massive burden -- particularly on smaller, upcoming services that lack the resources to take on such an unnecessary and invasive task.

We encourage anybody who cares about the Internet, really to head on over to the iAWFUL site, check the full list, suggest laws that should be included, and join the fight to uphold innovation and Internet freedom. 

New PFF Study on COPPA Expansion

The Progress and Freedom Foundation has a new study on child safety and age verification called "COPPA 2.0:  The New Battle over Privacy, Age Verification, Online Safety & Free Speech."

Berin Szoka and Adam Thierer should be congratulated for their excellent and very timely paper. New Jersey and Illinois introduced legislation this year that would impose age and parental verification obligations on websites. There could be more to come.

From PFF's news release:

PFF Fellows Szoka and Thierer argue that proposed state laws to expand the parental consent framework in the Children's Online Privacy Protection Act (COPPA) to include adolescents between 13 and 17 would essentially require age verification of all users of affected sites, including large numbers of adults.  This would violate the First Amendment rights of adults as well as of minors and site operators.  Attempts to enact such proposals at the state level would also conflict with the Commerce Clause because of the interstate nature of the Internet.

Furthermore, in light of widespread "social networking" found in most Web 2.0 websites today, expansion of parental consent requirements would be unworkable because of the increased hassles and costs of compliance.  Expanding age verification mandates would also require websites to obtain more information about both minors and their parents, which runs counter to the original goal of the Act: protecting the privacy of minors.  Ultimately, this would actually make minors less "safe online." "It's important we not overlook the privacy implications of any effort to expand COPPA to do something it was not originally intended to do," the authors conclude.  "There are better ways to protect our kids online.

Read it!

Breakdown, Takedown -- California Wants to Give Social Networking Sites the Shakedown over Uploaded Photos

Today California is holding a hearing on a bill that would require social networking websites to implement certain technologies and procedures to remove photo images upon notice from a user.

AB 632 would force a broad range of websites to establish mechanisms to remove photos, videos, and even caricature or satiric images of its users. As we know, many if not most online sites are incorporating some sort of social networking functionality. This bill would therefore encompass a number of community events, news, sports, and travel sites in addition to more commonly regarded social networking sites.

Apparently the bill's sponsor is upset that people can right click on photos, and save them to their computer or email to friends. In addition to takedown mechanisms, she wants websites to disclose to users that uploaded photos may be copied by persons who view the image.

As we detailed in our NetChoice letter, the takedown component is most troubling. It would force thousands of websites to redesign their sites to encompass a number of considerations:

1. A specific image must be readily identifiable on a specific page—this is a non-trivial exercise. Photos may be buried deeply in a user’s album containing thousands of other images, and URLs of particular pages often change.
2. Sites must determine whether an image is actually of the particular user requesting removal. Otherwise, users could request removal of a number of photos that bear their likeness, but do not actually include them, for a number of political, religious, or abusive reasons. Yet, even trained experts have difficulty identifying persons in photos, as images are affected by lighting, clothing, and changes in hair style or makeup.
3. Removal must respect copyright law. Websites would face potential lawsuits from copyright owners if removing their copyrighted images negatively impacted them.
4. How to deal with group photos, where the user is just one of many people in the image?

The above considerations required by AB 632 place websites in an untenable position, since they would face potential liability for both removing and not removing images.

Furthermore, consider the freedom of speech implications. As more people use the Internet to communicate and engage in social networks, including legislators, policymakers, journalists, celebrities, and business leaders, it is important to provide greater protections for speech online. Yet, AB 632 has serious loopholes that provide an end-around the First Amendment:

• A legislator views certain photos as damaging to his chances for reelection, and demands them to be taken down.
• A celebrity does not like an unflattering image of her, and flags it for removal.
• A weblog engages in investigative journalism on local government corruption, posts photos associated with the story, but the local official demands takedown.
• A cartoonist sketches a satiric cartoon that includes the image of a CEO who wants it removed.

Social networking sites are not equipped to deal with the intricacies of the above situations, and our public figures would know this. As a result, society would be the real losers under the approach dictated by AB 632.

Instead, we suggest that a legislative approach focused on the harms of certain conduct, not a mandate on technology or business mechanisms. If an image is abusive or harassing, there may be better ways to update harassment and stalking statutes for electronic images so that law enforcement can effectively react. Moreover, the judiciary may need clearer guidance on how to deal with defamation law with regards to digital images.

-Braden Cox