Common Sense Media (CSM) is a media "watchdog" group that provides a terrifically useful service to the public through independent reviews of popular media content (movies, music, TV, games, and more). As a parent, I find their service indispensable and, as a policy analyst, I have praised their rating system and their media literacy / digital citizenship programs again and again, including numerous endorsements in my special report on Parental Controls & Online Child Protection and other testimony and filings before Congress and federal regulatory agencies.
Thus, being such a big fan of CSM, I was quite dismayed to see the comments they just submitted to the Federal Trade Commission (FTC) as part of the agency's review of the Children's Online Privacy Protection Act (COPPA). They advocate not just expanded educational efforts, which are great, but also expanding COPPA's age scope to cover all kids under 18 as well as opt-in mandates for the collection and use of any "personal information" or "behavioral marketing." For all the background on the law and the FTC's resulting COPPA rule, see this beefy paper Berin Szoka and I authored last year and this testimony and follow-up submission Berin did for the Senate Commerce Committee. And then read the joint submission made by PFF, CDT, and EFF in the same FTC proceeding that CSM just filed in.
Sadly, it's clear to me that Common Sense Media didn't take anything we warned about in those papers or filings seriously--or perhaps that they just didn't bother to read them very carefully, if at all. Their filing is a classic example of good intentions gone wrong. I understand that they want to take additional steps to protect children online, but they completely ignore the practical realities of COPPA expansion and its associated trade-offs:
- CSM never clearly identifies or quantifies the supposed harm that requires such a significant expansion of Internet regulation. Why the need for a massive expansion of federal regulation in this area? CSM never makes it clear. Of course, this is becoming old hat here in Washington. Just whisper the word "privacy" and people scream "the sky is falling" and start calling for regulation of all sorts. But are there real harms here? Are there corresponding benefits to be considered? Aren't other values or principles at stake here. No answer from CSM.
- CSM never stops to consider the profound free speech implications of their proposals. Don't they realize that simply extending COPPA to cover older teens will require websites used by large numbers of adults to age verify all users? This raises the same First Amendment concerns about government interference with anonymous communication that caused the 1998 Child Online Protection Act (COPA) to be struck down by the courts as unconstitutional.
- CSM doesn't acknowledge that -- in the name of protecting privacy - they are essentially demanding a massive amount of additional information be collected to facilitate the regulatory regime they would apparently endorse. Expanded age verification mandates would mean more information has to be collected about kids and their parents, but also about adults who have to prove they aren't children!
- CSM never acknowledges that COPPA covers any potential site or tool that allows sharing of personal information by children and that expansion of this regulatory regime in an era of widespread user-generated content, online gaming, texting, and other forms of digital interaction make "expanded verifiable parental consent" a formidable regulatory problem.
- CSM is essentially treating older teens as if they have no speech rights and are utterly incapable of making decisions for themselves until the day they turn 18. Never mind that most U.S. states set their age of consent at 16 or 17, for example. In other words, these aren't Dora and Diego fans we're talking about here. These are people who will shortly be in college and eligible to vote and serve in our Armed Forces.
- CSM never bothers exploring the profound economic impact their proposal will likely have on smaller websites that cater to kids & teens. If expanded regulation crowds out smaller start-ups, the resulting level of creativity and innovation in this market will suffer. Thus, COPPA expansion could lead to unnecessary industry consolidation as smaller operators are forced to sell to bigger player who can cover regulatory compliance costs.
- CSM never bothers exploring the potential cost to consumers / parents. Expanding verifiable parental consent requirements will no doubt burden the creators or various sites and services, but those costs will ultimately be borne by the public when they are passed along in the form of a fee for services, many of which were previously free of charge.
- Finally, and perhaps most surprisingly, CSM spends little time focusing on the many beneficial steps being taken by site operators today that make kids safer online. I have said it again and again and again here and elsewhere: If we assume that COPPA is the most important approach to keeping kids safe online, we are making a huge mistake. COPPA is probably one of the least important things that keeps kids safe online. It's what sites do after kids get into their communities that is really important because--guess what!--kids are going to get in to social networking communities and other sites. There are many important steps being taken by countless online sites and communities take to make sure they offer more safe and secure environments for kids. In particular, beyond basic parental controls, moderation and intervention efforts by site operators are increasing within social networking sites, virtual worlds, and many other sites to ensure that they offer such "well lit" neighborhoods. We should be encouraging a lot more of that and working to find new "oversight and intervention" methods to deal with problems when they pop up. Common Sense Media has done a lot of great work on this front and should have focused on how those methods could be improved instead of how the create a more cumbersome, intrusive, expensive, and ultimately unworkable age verification regulatory regime for the Internet.
And there are many, many other issues left unexplored by the CSM filing. They've simply called for expansion of a regulatory regime without any reference to these challenges, costs, and trade-offs. Again, good intentions can't excuse sloppy, half-hearted policy analysis.
I'm really quite troubled by this filing and I hope my friends at Common Sense Media will take the time to take a second look at the paper Berin Szoka and I authored last year ("COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech") as well as the CDT-EFF-PFF joint filing we just submitted to the FTC. Regulation has consequences and in this case those consequences will be quite profound. CSM has utterly failed to acknowledge them in this filing.