As Berin mentioned last week, we have a new paper out on proposals to expand the Children's Online Privacy Protection Act (COPPA) of 1998. We generically refer to those COPPA-expansion efforts as "COPPA 2.0." Hence, the title of our paper: "COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech." To recap what Berin already noted, in the name of improving online child safety, some legislators and state attorneys general (AGs) are advocating the expansion of COPPA's "verifiable parental consent" model of age verification before certain sites or services may collect, or enable the sharing of, personal information for children.

Unlike "COPPA 1.0," however, which only applied to children under the age of 13, "COPPA 2.0" would apply to all minors up to age 17. Moreover, the range of sites covered by the new law would generally be expanded to include just about any site or service with social networking functionality.

Since Berin has already summarized our general concerns with efforts to expand COPPA's "verifiable parental consent" online age verification system to cover more online users and sites, I thought I would focus here on what I believe will be the most controversial (and important) part of our paper -- our discussion about how COPPA 2.0 affects the speech rights of both adults and adolescents.

Via Kevin Kelly I see that at some point Forbes magazine produced this chart measuring technology diffusion rates for various media and communications technologies since their year of inception.

I found this of great interest because, since the mid-90s, I have been putting together various charts and tables illustrating technological diffusion [most recently I did this in my "Media Metrics" report] and this particular chart is quite challenging since you are forced to pick a "Year 1" date to begin each of the "S curves." For example, what is "Year 1" for electricity or telephony on one hand, or the PC or the Internet on the other? That's not always easy to determine since it is unclear when certain technologies were "born."

Regardless, no matter how you cut it, the more modern and the less regulated the technologies, the quicker they get to market. Here's a couple of my recent charts illustrating that fact. The first shows how long it took before various technologies reached 50% household penetration. The second illustrates the extent of household diffusion over time.


However, as Kevin Kelly notes, we usually never see any technology hit 100% household penetration (although the boob tube got close!):

Adam Thierer & I have just released a detailed examination (PDF) of brewing efforts to expand the Children's Online Privacy Protection Act of 1998 to cover adolescents and potentially all social networking sites--an approach we call "COPPA 2.0."

As Adam explained on Larry Magid's CNET podcast, COPPA mandates certain online privacy protections for children under 13, most importantly that websites obtain the "verifiable consent" of a child's parent before collecting personal information about that child or giving that child access to interactive functionality that might allow the child to share their personal information with others. The law was intended primarily to "enhance parental involvement in a child's online activities" as a means of protecting the online privacy and safety of children.

Yet advocates of expanding COPPA--or "COPPA 2.0"--see COPPA's verifiable parental consent framework as a means for imposing broad regulatory mandates in the name of online child safety and concerns about social networking, cyber-harassment, etc. Two COPPA 2.0 bills are currently pending in New Jersey and Illinois. The accelerated review of COPPA to be conducted by the FTC next year (five years ahead of schedule) is likely to bring to Washington serious talk of expanding COPPA--even though Congress clearly rejected covering adolescents age 13-16 when COPPA was first proposed back in 1998.

We'll discuss some of the key points of our paper in a series of blog posts, but here are the top nine reasons for rejecting COPPA 2.0, in that such an approach would:

• Burden the free speech rights of adults by imposing age verification mandates on many sites used by adults, thus restricting anonymous speech and essentially converging--in terms of practical consequences--with the unconstitutional Children's Online Protection Act (COPA), another 1998 law sometimes confused with COPPA;
• Burden the free speech rights of adolescents to speak freely on--or gather information from--legal and socially beneficial websites;
• Hamper routine and socially beneficial communication between adolescents and adults;
• Reduce, rather than enhance, the privacy of adolescents, parents and other adults because of the massive volume of personal information that would have to be collected about users for authentication purposes (likely including credit card data);

I'm reading a couple of interesting books right now [see my Shelfari list here] including Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy by Lawrence Friedman of the Stanford School of Law. The book examines the legal and social norms governing privacy, reputation, sex, and morals over the past two centuries. It's worth putting on your reading list. [Here's a detailed review by Neil Richards.] I might pen a full review later but for now I thought I would just snip this passage from the concluding chapter:

In an important sense, privacy is a modern invention. Medieval people had no concept of privacy. They also had no actual privacy. Nobody was ever alone. No ordinary person had private space. Houses were tiny and crowded. Everyone was embedded in a face-to-face community. Privacy, as idea and reality, is the creation of a modern bourgeois society. Above all, it is a creation of the nineteenth century. In the twentieth century it became even more of a reality. [p. 258]

[Note: If you're interested in this topic, you'll also want to read Daniel Solove's The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. Also, here's Jim Harper's review of it.]

With little fanfare, the U.K. Intellectual Property Office ("UK IPO") has moved patent applications covering so-called "green" technologies to the head of the queue for expedited examination. (Tip to Intellectual Property Watch for picking up on this.)  As a result of the priority, the UK IPO expects patents to issue in nine months, rather than in the ordinary two or three years.  Is this a good idea for the United States?  Probably not.  It isn't clear to what degree this "fast track" will actually result in faster or greater commercialization of green technologies.  Moreover, while faster patent examination is a laudable goal for any and all patent applications, greater resources are needed in the U.S. Patent & Trademark Office ("US PTO") for other -- arguably more important -- matters, such as reexamination of already-issued patents.

California has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional. [Game Politics.com has complete coverage, and there's more over at Ars and USA Today's Game Hunters blog.]

Brief background: In late February, the Ninth Circuit upheld an August 2007 ruling by a California district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here], which struck down a California law, passed in October 2005 (A.B.1179), which would have blocked the sale of "violent" video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law. After being challenged by the Video Software Dealers Association and the Entertainment Software Association and, the district court blocked the law arguing that it violated both the First and Fourteenth Amendments to the federal Constitution.

California's decision to appeal the law up to the Supreme Court [petition is here] sets up a potential historic First Amendment decision (if they Court agrees to take the case, that is). California is asking the Court to consider two questions:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

As I mentioned in a post last month, dozens of comments were filed with the Federal Communications Commission (FCC) as part of the agency's "Child Safe Viewing Act" Notice of Inquiry. Again, this proceeding was required under the "Child Safe Viewing Act of 2007," which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC's proceeding (MB 09-26) is to study "advanced blocking technologies" that "may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms." I filed 150+ pages worth of comments in this matter, and here's my analysis of why this bill and the FCC's proceeding are worth monitoring closely.

Anyway, this week saw many of the same groups that filed before (and some new ones) file reply comments about those earlier submissions. To make things simple, I have collected most of the notable reply comments down below in case anyone is interested.

As part of our ongoing series that tracks the gradual transition of video content to the boob tube to online outlets, I want to draw everyone's attention to two excellent articles in today's Washington Post about this trend. One is by Paul Fahri ("Click, Change: The Traditional Tube Is Getting Squeezed Out of the Picture") and the other by Monica Hesse ("Web Series Are Coming Into A Prime Time of Their Own"). I love the way Paul opens his piece with a look forward at how many of us will be explaining the "old days" of TV viewing to our grand kids:

Sit down, kids, and let Grandpa tell you about something we used to call "watching television."

Why, back when, we had to tune to something called a "channel" to see our favorite programs. And we couldn't take the television set with us; we had to go see it!

Ah, those were simpler times.

Oh, sure, we had some technology we thought was pretty fancy then, too, like your TiVo and your cable and your satellite, which gave us a few hundred "channels" of TV at a time. Imagine that -- just a few hundred! And we had to pay for it every month! Isn't the past quaint, children?

Well, it all started to change around aught-eight, or maybe '09, for sure. That's when you no longer needed a television to watch all the television you could ever want.

Yes, I still remember it like it was yesterday . . .

A few months ago, Adam Thierer penned The Pragmatic (Internet) Optimist's Creed in response to calls from "Internet pessimists" for increased regulation of the Internet on many fronts. Adam's recent 4-way debate with pessimists Larry Lessig and Jonathan Zittrain (as well as optimist Declan McCullagh) inspired me to pen the following cheeky homage to Lessig, the Father of Internet Pessimism, whose work has launched a thousand efforts to increase government control of the Internet in the name, ironically, of "freedom:"

Our Lessig, who art in Harvard,
Hallowed be thy blog.
Thy Free Culture come.
Thy Code be done,
In Washington as it is in thy Ivory Tower.

Give us this day our Net Neutrality. And forgive us our trespasses against Internet Openness, As we forgive those who question thy genius, And lead us not into trusted systems of perfect control, But deliver us from digital rights management and architectures of identity.

For thine is the wisdom, and the clairvoyance, and the coolness, for ever and ever. Amen.

Lest I become the Salman Rushdie of pragmatic Internet optimists/regulatory-skeptics, let me emphasize that my techno-blasphemy is meant in good humor. But then, that's probably what poor Rushdie said...

Google has announced that it will soon begin allowing U.S. advertisers to use trademarked keywords in limited circumstances in text ads, much as Yahoo! already does. Google currently allow advertisers to bid on trademarked terms as keywords that could cause an ad to appear, either next to Google search results or on a third-party publisher's website. That policy will not change, and is discussed here by my PFF colleague Sid Rosenzweig. The new policy is focused on the text seen by users in ads themselves and applies only if the "landing page" (to which the ad links) is used by a reseller, aggregator or parts supplier to sell only products that are relevant to the mark in question, or if the page is used to provide impartial reviews or other information about the trademarked product. The new policy does not apply to sites/pages that (a) facilitate the sale of counterfeit goods, (b) allow the sale of a competitor's goods, (c) criticize the trademarked good, or (d) do not provide substantial information or a purchase option. Despite these limitations and other safeguards, Google has been sharply criticized by some trademark holders and might even be sued (e.g., for contributory infringement).

I'll defer to the real trademark lawyers to figure out whether Google is correct that its new policy falls within the bounds of trademark law (particularly the "nominative fair use" doctrine). But since Adam Thierer and I have been involved in an ongoing defense of online advertising against those who would squelch it through regulation in the name of privacy concerns (not at play here), I think it's important to highlight the potential benefits to users from this seemingly arcane policy change-and to consider what this episode says about online advertising generally. I see three main benefits to consumers from the policy change that should be considered alongside the vitally important role that trademarks play in our economy in communicating reputational information.

First, Google's new policy will allow consumers to find products more easily because advertisers will be able to offer more descriptive and therefore informative ads, mentioning what they sell by name.