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Thursday, October 12, 2006

A Response to Sen. Lieberman's Online Child Protection Manifesto
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On Monday, October 9th, Sen. Joe Lieberman (D-CT) delivered a major address about Internet content and online child safety that was intended to serve as a sort of call-to-arms for policymakers, parents and industry to get more serious about the issue.

In his wide-ranging remarks, Lieberman bemoaned the relentless pace of technological change and how the Internet and digital media technologies were making it increasingly difficult for parents to protect children from objectionable material or, worse yet, child predators. "The Internet is a wondrous, revolutionary medium," Lieberman said. "But there is too often a thin line between the awe-inspiring and the simply awful, and with each new technological breakthrough, it seems that the opportunities for our children to fall into that awful gap grow greater and graver."

In this essay, I will dissect Sen. Lieberman's manifesto and provide a detailed response to his assertions and proposals. I feel this is necessary because his address touches on many of the major themes and proposals that are framing the debate over Internet regulation that is taking place in America today.


Sen. Lieberman delivered this address while campaigning in Connecticut as he attempts to retain his Senate seat against Democratic Party challenger Ned Lamont. But this was much more than just another stump speech and Sen. Lieberman is certainly no Johnny-come-lately to the debate over media content.

Sen. Lieberman has a long track record of advocacy on media issues, especially video game regulation and rap music lyrics. Over the past two decades there was probably no other member of Congress -- with the possible exception of former Democratic Senator Fritz Hollings -- who was more vociferous on these matters. In fact, the pressure Sen. Lieberman single-handedly brought to bear on the video game industry back in the mid-90s drove it to adopt a voluntary ratings system. And he supported several other legislative measures through the years, including the Media Marketing Accountability Act of 2001, which proposed federal regulation to control how media / entertainment products were advertised and marketed. (In this 2002 Cato Institute publication, I critiqued the Media Marketing Accountability Act in detail starting on pg. 6).

In other words, when Sen. Lieberman delivers a major address on these issues, it's worth paying close attention because he is a thought leader in this field. Moreover, he is helping to change to the way Democrats -- the traditional defenders of unfettered freedom of speech and expression in Washington -- think about these issues. Even if he doesn't win his re-election bid, he'll likely remain a major player in this debate and others in Congress will use the playbook he has put together during his two-decade tenure in the Senate. Finally, the concerns that Lieberman raises are real concerns for many parents out there, including my wife and me who are busy raising two Information Age kids.


In his address, Lieberman argued that "technology is changing more rapidly than our ability to protect our kids. I believe the time has come to fight back. Not to stop the march of progress -- but to help parents keep pace." Lieberman laments that:

"parental supervision is becoming ever-more challenging now that the Internet is accessible on many kinds of devices, including cell phones. It's one thing for a parent to turn off the TV, like I did when my daughter was watching that raunchy show more than a decade ago. But today, kids have access to a whole new hidden world of entertainment through a wide variety of devices, many of them small enough to fit in a shirt pocket."

No doubt there is a great deal of truth in this statement. The world has changed in some very important ways and the Internet and online content creates some new and unique challenges for parents like me.

But Lieberman seems to only focus on the negative aspects of these changes in his remarks. For example, Lieberman uses the Mark Foley scandal to illustrate the supposed dangers of the Internet and instant messaging. "Because of Mark Foley's use of instant messaging to prey on young pages, more parents are now familiar with that particular risk."

It is somewhat irresponsible, in my opinion, for Lieberman to suggest that the Foley scandal illustrates the "particular risk" of instant messaging to kids. What the Foley case instead proves is what many studies about child predators have repeatedly made clear: The vast majority of children who are threatened or sexually abused are victimized by family, friends of family and people who have close relationships with (or the trust of) minors. In this case, Rep. Foley already knew the minors and was "grooming" them using frequent instant messages. But the important point here is that Rep. Foley had already met these boys in the real, physical world and had gained their trust there. Does it really make a difference how he communicated with them after that? If Foley has used telephones to groom these minors, would Sen. Lieberman suggest that the Foley case illustrated the "particular risk" of letting kids use phones?

Lieberman also suggests that, along with the Foley scandal, a couple of high profile child predation cases that involved Internet contact, "represent just the tip of an iceberg of indecent activity spurred on by the Internet. One study reported that about one out of every six children online receive a sexual solicitation. That is a frightening statistic -- and an even more frightening reality for today's parents."

First of all, Sen. Lieberman gets that 1-in-6 number from the second "Youth Internet Safety Survey" ("YISS-2"), but he misreports it. The actual number is one in seven (13%), not one in six. Second, the correct 1-in-7 number is actually a reduction from the 1-in-5 (19%) result from the first ("YISS-1") survey. So things have improved somewhat (but clearly that is still a troubling number). Third, and perhaps most importantly, what Sen. Lieberman didn't mention is that a significant percentage of those "solicitations" are kids talking to other kids. When 17-year old Johnny propositions 16-year old Jenny, it's a "solicitation" for purposes of studies like this. Of course, teens were delivering salacious solicitations to each other long before the Internet came along, but parents (and policymakers) had no way to track it unless they found a dirty note in their school bag or pants pocket. This is not to condone the rude and raunchy behavior that some teens engage in, but let's be realistic about this issue and understand that, in a certain sense, this problem has always been with us. It's just far more visible to us now.

That being said, there is no doubt that there are many adult predators out there who are using the Internet and new communications technologies in an attempt to contact kids and groom them. If an adult is using the Net to sexually proposition a child in any fashion, it is a serious problem. (Down below I discuss what we should be doing about it). But, again, let's put things in a little perspective here. Predators can't magically reach through a computer screen and grab our kids. They have to meet them somewhere in the physical world (i.e., a mall, a playground, etc). The danger of the Internet is that it allows predators to groom minors over a protracted period of time but they are doing so at a distance.

But the fact that they are doing so at a distance and over electronic communications networks means that we have actually gained some important advantages in our effort to combat child predation. Many of these predators leave digital tracks for us to follow. Hopefully, law enforcement officials are doing whatever it takes to follow those tracks and catch the bad guys before they hurt our kids.

But, like so many other politicians who sound off on this issue, Sen. Lieberman repeatedly shifts the blame and responsibility for this problem back to private companies: "Internet companies, he argues, "[should] come up with more effective software... to keep predators away from [children]" and that "major websites frequented by children should pursue new approaches to block child sex offenders from logging onto them."

When Lieberman wrote that, did he stop to ask himself what the government is doing to deal with this problem? After all, at root, the most essential role that government has is protection of the people from harm, especially helpless kids. It is not the job of private companies to enforce law and order or bring bad guys to justice. That is the government's job. And they aren't doing a very good job of it when it comes to online child safety. Consider this fact: 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.

Now, let me ask an obvious question: WHY ARE THESE CREEPS WALKING THE STREETS? Why is our government only putting people who viciously hurt innocent children behind bars for just seven years and then letting them out after just three? Why is Sen. Lieberman saying that "major websites frequented by children should pursue new approaches to block child sex offenders from logging onto them"? Excuse me, but why are know sex offenders logging on to those sites at all! Why are they not in prison and why have they not been denied access to computers!

This is what gets me so incensed about the debate over online child protection today: Policymakers are fond of pointing fingers at everyone else and scolding them for not doing enough to protect children from predators, all the while conveniently ignoring their own policies that allow those predators to be on the streets and behind keyboards in the first place! It's not "market failure" at work when child predators are lurking behind keyboards, it is government failure in the extreme.

If those bad guys committed crimes before, then they should probably still be sitting in a jail cell instead of in front of a keyboard trying to lure our children in. And even if they haven't committed a crime against children before, the government should be using its resources to find those who attempt to lure our children and see if they can catch them in a sting operation before they harm our children. Website operators, ISPs and all online companies will be happy to assist in that effort when a potentially threatening individual is identified or suspected. Most of them already have firm policies in place of working with law enforcement to identify threats and take action against them in conjunction government officials. And all online operators are required by law to report any incidence of child predation or child pornography to the National Center for Missing and Exploited Children (NCMEC) immediately, which they will gladly do when they see it. After that, it's up to law enforcement to do the right thing and put these predators away for a long, long time.

So when Sen. Lieberman calls for Internet companies to take steps to solve the child predator problem, he is starting in the wrong place. Internet companies will always be willing to do whatever it takes to root out this despicable element online. After all, what good does it do them to have these creeps lurking on their networks and trying to prey on young users? It's not like that's good for business.

But the first order of business is for government to get its act in order and get far more serious about protecting our children from online threats. Luckily, the recently passed Child Safety Act is good step in the right direction since it increases mandatory minimums for child predators. But more can be done to train, equip and fund law enforcement efforts to find the bad guys. In the meantime, let's not blame the Net for all our problems or expect online operators to solve this problem with a simple software fix. That's a horribly short-sided and completely backwards way of dealing with this problem.


What I have been discussing above is Sen. Lieberman's plan for how to deal with what I call the "Bad People" problem versus the "Bad Pictures" problem. In my work on these issues, I generally break down online safety and parental control issues into these two major categories and deal with them separately. "Bad pictures" is simply shorthand for all potentially objectionable content, and the "bad people" problem refers to the predators or child pornographers lurking online.

In this next section, I want to address Sen. Lieberman's 3-prong plan to deal with "Bad Pictures" problems.

1 - Corporate Responsibility
Part 1 of Lieberman's plan is to "demand more corporate responsibility" and this part of the Lieberman's proposed agenda has three subcomponents: (a) Industry self-censorship; (b) Providing more tools to parents; and, (c) More education efforts.

(a) First, Lieberman suggests that a fair degree of corporate self-censorship is in order.

"The big [media] corporations should also do more to clean up their own act on the Internet... Today I call on the largest businesses involved in the Internet to hold a summit to develop industry standards for protecting children from inappropriate content on the web."

I find this to be the most troubling aspect of the "corporate responsibility" portion of Lieberman's manifesto. When lawmakers or regulators call for self-censorship, and even go so far as to suggest what types of content that media creators should self-censor (as Lieberman does at points in his address), then it is tantamount to actual government censorship. Elected leaders have coercive powers at their disposal to threaten media creators or distributors to do things they otherwise might not do. (I provided a recent example of this in an essay last year about how Washington lawmakers and regulators bullied cable and satellite companies into "voluntarily" adopting "family-friendly tiers" of programming.)

There is a fine line between government officials using the power of the bully pulpit to preach morality and the direct censorship of media content.

(b) Lieberman also suggests that digital media operators and distributors should provide more tools to parents to shield their children from potentially objectionable Internet content. "[B]ig Internet companies could also finance a major research and development program to come up with more effective software to keep children away from unsafe Internet sites, and to keep predators away from them."

It's tough to argue with this recommendation. Empowering parents by giving them more tools is always a good idea. But it's also important to acknowledge that some important strides have already been made in terms of parental empowerment. As I documented in my recent study "Parents Have Many Tools to Combat Objectionable Media Content," families have an unprecedented level of parental control options at their disposal. Certainly there is room for improvement, and critics like Lieberman can always argue that media and communications companies should "do more" to address the concerns parents have. But media producers and digital content distributors are already doing quite a bit in terms of providing filters, set-top box controls, online websites with helpful tips, and so on.

Of course, whether or not parents are taking advantage of the tools and options at their disposal is another matter entirely. Indeed, the biggest problem I have identified in the debate over parental controls and child protection is the old "You can lead a horse to water but you can't make them drink" conundrum. No matter how good the parental controls or ratings systems are that you give parents, for whatever reason, some of them just never use them. For example, we still can get more than 15% of American households to use the V-Chip even thought that filtering tool is available in every TV set today. And many parents still let their kids watch movies or play video games that are clearly labeled for older, more mature audiences.

Some of this might be due to simple laziness or the (somewhat arrogant) belief by some parents that their kids are different (i.e., "better") than other kids and so they don't have to worry about this. But in the forthcoming second edition of my survey of parental control tools and methods, I conclude that the primary reason that many parents don't bother to use many of the tools at their disposal is because they already use a wide variety of informal "household rules" to tailor their media experience to their family's specific needs or values. "No TV or video games until you finish your homework" or "No TVs, computers or game consoles in your bedroom," are two such rules that are popular in many households. But there are countless other informal household rules and these rules are often a far more effective way of dealing with these issues. The parental control tools or technologies that media providers offer simply supplement -- not supplant -- these rules in many households. And that's the way is should be. There is no silver-bullet technology that can take over our parenting duties. But parental control tools and technologies can make our job a little easier. (Personally, I look at parental control tools as speed bumps that can slow my kids down a bit before I can talk to them about media content or decide whether or not I want them consuming that content at all).

(c) Education is the final component of Senator Lieberman's "corporate responsibility" agenda and it is the most commendable portion of it.

"The big Internet companies should fund a national campaign to educate parents about the online risks faced by their children, and how they can best protect their families. That campaign should also focus on teaching kids to be careful about sharing personal information..."

Again, it's tough to argue with this recommendation. Education is always the best answer, in my opinion, and it should be the first option we turn to before many of the other steps Senator Lieberman recommends in his address. I recently called for all Internet and digital media operators to consider getting together and crafting a voluntary "online code of conduct" to preempt government calls for regulation and a unified education effort was a major component of this code. This education effort would include a significant expenditure of funds to finance public service announcements (PSAs) or sponsor other parental / consumer education efforts to promote awareness. Other educational efforts might include: more clearly-worded and easy-to-implement "how-to" guides with all products or (when applicable) "out-of-the-box" set-up guides to help users immediately enable parental enable controls / filters; clearly displayed links, buttons or phone numbers (i.e., "hotlines") for parental / child assistance; and more online points of contact and reference to help explain parental controls, ratings or filters.

So, Sen. Lieberman is on solid ground here and I would hope industry would take him up on this part of his challenge. (Moreover, I wouldn't mind seeing government get far more serious about media literacy efforts in the classroom to teach children how to be savvy media users / consumers.)

2 - Parental Responsibility
The second major prong of Lieberman's plan involves parents. "We also have to demand more parental responsibility," he argues. He goes on to say that:

"Parents have the first duty to protect their kids and are usually the last line of defense. Now, given the omnipresence of the Internet and the unique challenges that presents, parents need to be more vigilant than ever. It's no longer enough to keep the computer in the family room when most parents have no idea what chat acronyms mean. Parents need to tell their kids not to share personal information and to tell them when they receive online sexual solicitation."

Again, it impossible to argue with any of this (although I still think parents can be the FIRST line of defense, not the last as Lieberman suggests). And, as I mentioned above, I believe that household media rules are an essential part -- probably the single most important part -- of the parental controls and online child protection mix of efforts. In my upcoming study on these issues, I document the many ways that parents can devise practical household rules and create what I refer to as a good "media diet" for their families. Parents need to take a "food pyramid" approach to media consumption: Teach kids the importance of a balanced (media) diet and also teach them what types of things that should probably be avoiding altogether. But just as government doesn't enforce the food pyramid through regulation, nor should it enforce the media food pyramid idea through force of law. Unfortunately, however, that's exactly what Sen. Lieberman next proposes.

3 - Government Regulation
The third and final component of Sen. Lieberman's plan involves government regulation. "[P]arents can't do it all on their own," he argues. "There are some things that the government can and must do to help make this hard job a little easier. And there are some things that only the government can do prevent crime and keep kids safe."

In particular, Lieberman used the occasion to highlight the hodge-podge of regulatory proposals contained in a Senate bill (S. 1507) he has co-sponsored called "the Internet Safety and Child Protection Act." This bill would:

* Require adult websites to conduct online ID checks using age-verification software.
* Tax online pornography to fund an Internet Safety and Child Protection Trust Fund.
* Create a cyber tip line in the Office of Juvenile Justice
* Establish Internet Crimes Against Children Task Forces in each state
* Fund research into new filtering technologies
* And support education programs on child Internet safety.

Let me be clear: I do not oppose all government efforts on this front. In fact, I can support things like federal educations programs on child Internet safety, a federal "cyber tip" line (although such a thing already exists at NCMEC), Internet safety task forces, and perhaps even some federal funding for filters (although I'm very concerned about what sort of strings might be attached to the funding of filters and I'm sure that some of my other friends in the First Amendment community would be absolutely apoplectic about this proposal).

But ideas like taxing online pornography and age-verification mandates raise a whole host of other issues. Adult entertainment providers are already taxed as businesses, so what Lieberman is essentially proposing is a tax on a specific form of content or speech. That opens a big can of First Amendment worms and, even if it somehow passed constitutional muster when tested in the courts, it would be completely ineffective at stopping offshore sites from providing the same material tax-free.

Likewise, age-verification raises serious privacy concerns for adults and can be easily evaded or duped. And the legal issues aren't settled here either. A legal battle continues to rage in the courts over the Child Online Protection Act of 1998 (COPA), which sought to block underage access to websites. COPA was held unconstitutional and blocked by the courts (although the Department of Justice is apparently still working hard to enforce it).

Thus, the regulatory solutions Lieberman endorses are only likely to create more legal wrangling in the courts and even if they went into effect they would be unable to deal with the global scope of the Internet and digital content.


Sen. Lieberman wants to protect kids. So do I. So does everybody else I know. But how we go about protecting them is important because, in a diverse culture like ours, different families will have different values and tolerance levels when it comes to speech and media content. Sen. Lieberman clearly has his values. My wife and I have our own, and I have a feeling they are quite different than the Senator's. And I bet yours are different, too. And that's OK. In fact, it's a wonderful part of our pluralistic society.

I agree with Sen. Lieberman when he says in his address that "information is power." Unlike him, however, I am far more wary of giving government too much power over information. I do, however, wholeheartedly agree with him that empowering parents (and kids!) with more information, education and tools to make choices in line with their values and preferences is an unambiguously good thing. Because at the end of the day I would hope we could all agree that Uncle Sam makes a lousy surrogate parent for a diverse nation of diverse families with diverse values.

posted by Adam Thierer @ 6:49 PM | Free Speech

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Thanks for posting this in-depth, insightful analysis of Lieberman's recent manifesto. I too, am a big believer in limited regulation, but I think that when it comes to protecting our children, we have to do everything we can to keep them from harm's way. I know that there has been various forms of legislation introduced to keep watch over the Internet and those predators on it and while I know this does spark debate over "keeping hands off the Internet" I firmly believe there do need to be some measures in place to curtail illegal, pornographic soliciting of children. I know that NCMEC has a reporting mechansim called Cybertipline that allows you to report suspicious activity and I urge people to continue to use this tool to help keep our children safe, no matter what comes about from various legislative actions.

Posted by: Coldfeet at October 15, 2006 1:42 PM

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