Yesterday, the Senate passed S. 602, "The Child Safe Viewing Act of 2007," which was introduced by Sen. Mark Pryor (D-AR) in February 2007. The bill requires the Federal Communications Commission (FCC) to study the market for "advance blocking technologies" (i.e., parental controls and rating systems) that parents can use to protect their kids from inappropriate content from various sources and platforms. On the surface, the measure seems harmless enough, but in practice, it could have some troubling long-term free speech implications if it leads to more government meddling with parental controls and ratings systems.
The measure requires the FCC to initiate a notice of inquiry to consider measures to examine:
But it's what comes next in the bill that causes me some heartburn. As part of the review mandated by the bill, S. 602 commands the FCC to "consider advanced blocking technologies that":
Regarding that first provision, here's how I stated my concern in my old paper:
In demanding that regulators investigate and consider requiring blocking technologies for "wired, wireless, and Internet platforms," the measure potentially opens the door to the beginning of convergence-era content regulation at the FCC. The agency currently has no authority to regulate content (or parental control technologies or rating systems) on most media or communications platforms outside of broadcasting, and its authority over broadcasting is limited. But S. 602 would potentially give regulators the ability to begin expanding the horizons of federal content regulation.
One wonders what sort of resources the FCC would need to carry out this task. After all, we're talking about numerous platforms and a potentially enormous volume of content. The FCC would likely need a small army of regulators to ensure that all "wired, wireless, and Internet platforms" were in compliance with the law. Will there be a specific team of FCC officials devoted to monitoring advanced blocking mechanisms for the official websites of major media operators? What about YouTube.com, MySpace.com and other major websites that host both user-generated content and professional media content? What about the new media platforms and content that mobile operators are offering? Many advanced blocking tools already exist to screen or filter online content, but whether other types of regulation could be required under S. 602 remains unclear. Moreover, the global reach of many of these online platforms raises other enforcement issues.
in specifying that these new advanced content blocking technologies should "operate independently of ratings pre-assigned by the creator of such video or audio programming," S. 602 seems to imply that existing voluntary rating and labeling systems cannot be trusted. That is a dangerous presumption.
Existing rating and labeling systems, while not perfect, are well-established and comprehensive. It is simply unrealistic to expect that all new advanced content blocking technologies will operate independent of existing rating and labeling systems, such as the television rating system, the MPAA movie rating systems, and the video game industry's ESRB rating system. It is important to realize that these systems rate and label almost all the entertainment content produced in their respective fields. While third-party rating systems can supplement these official industry rating schemes, it is unlikely those independent schemes will ever be as comprehensive as the official industry systems.
More importantly, existing blocking tools on the market today, such as the V-Chip and cable and satellite set-top boxes, rely on those official rating and labeling systems, which most Americans are already familiar with. It is unrealistic to expect all new consumer media devices to employ alternative blocking schemes or be able to read independent rating systems.
Thus, it remains unclear what that sponsors of S. 602 are hoping to accomplish by specifying that new blocking systems "operate independently of ratings pre-assigned by the creator." Regardless, the real danger here is that that language could fuel a push for "universal" media ratings that would be imposed by the government or a third-party which has the government's blessing. It goes without saying that such a proposal would raise serious First Amendment concerns.
But, even setting aside the clear First Amendment concerns, there is no practical reason to believe that the government could actually do a better job of assigning ratings or creating parental control tools. If the government were responsible for assigning content ratings or labels, for example, five unelected bureaucrats at the FCC or some other regulatory agency would simply substitute their own values for those of the voluntary rating boards or other labeling organizations in existence today.
Sen. Pryor and his Senate colleagues are to be commended for avoiding direct content regulation and instead focusing on empowering families to make media consumption decisions on their own. Nonetheless, in an attempt to empower parents it is important that Congress not empower regulators instead. S. 602 opens the door to an expansion of the FCC's authority over media content on multiple platforms and threatens to undermine private, voluntary rating systems in the process. There are better ways to help parents and protect kids.
Further reading / sources: