I have just released a new PFF white paper on "The Perils of Mandatory Parental Controls and Restrictive Defaults." It points out the dangers of government mandating that parental controls be defaulted to their most restrictive position. I've gone ahead and just pasted the entire text below (but without the footnotes):
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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 “G” for movies, “TV-Y” for television, or “E” for video games, which are the most restrictive rating designations for each type of media. Similarly, all personal computers or portable media devices sold to the public could be forced 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 among 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 unintended consequences and not likely achieve the goal of better protecting our kids.

You Can Lead a Horse to Water, But…

As I have pointed out in my book on Parental Controls and Online Child Protection: A Survey of Tools and Methods, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children. And this is true for all forms of media, from TV and music to video games and the Internet.

That being said, 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 him drink” problem. There are a few reasons why this may be the case.

First, many households may not take advantage of parental control tools because they instead rely on a variety of non-technical “household media rules.” In chapter 2 of my book, I identified four categories of household media rules that surveys show almost all parents use in some combination to control their children’s media consumption: (1) “where” rules; (2) “when and how much” rules; (3) “under what conditions” rules, and, (4) “what” rules.

Second, in many homes, technical controls and rating systems are viewed as unnecessary if the 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 have 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 or 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 getting 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 that 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, although some more than others. And 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 low awareness issues is not mandatory defaults but, as I explain below, increased educational efforts.

Forcing the Issue

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 these technical controls and rating systems to limit children’s access to potentially objectionable content or communications? There are two general options.

Increased Education & Empowerment Options
One way to increase parental comfort levels is through better education and awareness-building initiatives. As mentioned, 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 media use in their homes is unmanageable 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 URLs for 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.

Mandated Controls & Maximum Defaults
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; almost all major media devices marketed today already contain some sort of parental control tools. 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-profit entities for little or no charge, and operating systems like the new Windows Vista have included 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 technology and, in a worst case scenario, creating financial windfalls for well-connected technology vendors.

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, and those reasons are instructive when considering the wisdom of mandating that such defaulted controls be imposed by law.

To begin, there’s just not as much demand for this as some might think. Again, not all 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.

Second, not all homes have children in them. According to the U.S. Census Bureau, almost 68 percent of American homes do not have any children under 18 years of age in residence. Obviously, there is less interest in parental control technologies in adult-only homes.

Third, 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. 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.

Mandating such a dual-version approach, particularly for mass-market general use devices like PCs and Televisions, seems 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 locked / kid-friendly versions of the hardware or software. (Witness what happened in Australia within a few days of the government releasing subsidized filtering software). The result would be some significant degree of consumer dissatisfaction with high-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 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 issues associated with 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.

Of course, governments could forbid the development of “unlocked” devices or software and mandate that every media or computing device sent to market had mandatory defaults set for maximum restrictiveness. Even assuming such rules would not run afoul of international trade rules, many of the same problems would still develop, however. It will 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.

A final enforcement question relates to how broadly “media devices” are defined for purposed 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 Congress or the Federal Communications Commission defines “media devices” broadly, it would bring an unprecedented array of consumer electronic devices and communications technologies under the purview of federal regulatory authorities. 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 all the affected media devices would likely rise for consumers.

Unintended Consequences and Constitutional Concerns

At this point, some supporters of such an approach might be thinking: So what? Regulation is often difficult, even expensive, but we find ways to enforce many other laws if for no other reason than 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 the increased awareness among some parents about parental control tools or potentially objectionable media content or forms of online communications.

But this mentality is quite myopic in that it 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 was stated previously, there has never been a time in our nation’s history when parents have had more tools and methods at their disposal. It would be foolish, however, to think that this situation might not be retarded or even reversed by misguided public policy prescriptions. One of the most unfortunate consequences of such a mandate would be that it might lull 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 become engaged in their media choices, 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 / regulation and the substitution of some sort of universal ratings regime for the voluntary systems that exist today. If that scenario developed, lawmakers will be forced into making content-based determinations that 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.” 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.” 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. Recent video game cases have reached similar conclusions. 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.

Is This 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 us and ask for money (usually a lot of it). This “power of the purse” is, in many ways, the ultimate parental control tool. If parents are shelling out money for such devices, presumably they are 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 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, as was mentioned above, 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.