Sen. Amy Klobuchar just released a letter to Facebook demanding the site require "a prominent safety button or link on the profile pages of users under the age of 18"--akin to the so-called "panic button" app launched earlier this week by the UK's Child Exploitation & Online Protection Centre (CEOP). She doesn't seem to realize that this app is available to all Facebook users, not just those in the UK. But her focus on empowerment tools and education is admirable, and it's certainly a fair question to ask what sites like Facebook and MySpace are doing in these areas.

Unfortunately, Klobuchar's letter also engages in blatant fear-mongering:

Recent research has shown that one in four American teenagers have been victims of a cyber predator.  And when teens experience abusive behavior online, only ten percent discuss it with their parents and even fewer report the misconduct to law enforcement.  It's clear that teenagers need to know how to respond to a cyber attack and I believe we need stronger reporting mechanisms to keep our kids safe.

First, to equate child predation with peer bullying is to engage in a dangerous game of defining deviancy down. Predation and bullying are radically different things. The first (sexual abuse) is a clear and heinous crime that can lead to long-term psychological damage. The second might be a crime in certain circumstances, but generally not.  And it is even less likely to be a crime when it occurs among young peers, which research shows constitutes the vast majority of cases. As Adam Thierer and I noted in our Congressional testimony last year, there are legitimate concerns about cyberbullying, but it's something best dealt with by parents and schools rather than prosecutors (like Klobuchar in her pre-Senate career).

Second, a series of official taskforces have concluded that the cyberpredator technopanic is vastly overblown.

Schools these days are confronted with complex questions on whether and how to deal with cyberbullying, an imprecise label for online activities ranging from barrages of teasing texts to sexually harassing group sites.

The reason educational-based approaches are so vital is because they can help teach kids how to behave in--or respond to--a wide variety of situations. Education teaches lessons and builds resiliency, providing skills and strength that can last a lifetime.

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:

"Don't turn COPPA into a sweeping age verification mandate for the Internet!" That was essentially the core message of joint comments (below) Adam Thierer and I today filed with the Center for Democracy & Technology and the Electronic Frontier Foundation on the FTC's Implementation Review of the rules that implement the Children's Online Privacy Protection Act of 1998 (which requires verifiable parental consent for kids under 13 to use most interactive sites and services if those sites are "directed to" them or if the site has "actual knowledge" it might be collecting personal information from such kids or allowing them to share such information through the site).

Specifically, we counsel the Commission against expanding COPPA beyond its original, limited purposes and scope, or calling on Congress to enact an expansion. In a techno-functional sense, COPPA is already "expansive," since it is essentially device- and technology- neutral--essentially applying to any site or service that uses the Internet. That flexibility should allow the FTC to apply the statute in a changing landscape without further legislative changes. But we explain why COPPA is necessarily narrow in its age scope and the "directed to" and "actual knowledge" concepts that actually trigger COPPA's requirements--and why changing any one of these three critical parts would inevitably lead to unconstitutional restrictions on the speech rights of adults, minors, and site operators, while actually reducing online privacy but without enhancing the online safety of children.

We call instead for the agency (i) to use the breadth and flexibility already given to it by Congress in the COPPA statute to enforce the statute in a manner consistent with the rapidly changing technical landscape and (ii) to supplement enforcement of that existing law with increased educational efforts and promotion of parental empowerment solutions.

Adam and I certainly have our differences with CDT and EFF on some issues, but this is not one of them! I'm deeply proud to join with these organizations in pointing out the unintended consequences of expanding regulation in an area where all too many people stop thinking carefully about the effects of regulation because, they seem to think, "We can never do enough for the children!" As we point out in our comments, the trade-offs here aren't just between "The Children" and anyone's narrow economic interests, but run far, far deeper. Adam & I did our best to succinctly capture the true, complex cluster of issues at stake with the title of the paper we released last summer about COPPA expansion: "COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech."

The stakes here for our digital future could hardly be higher, yet more subtle.

• 93% of the time parents are present at the time games are purchased or rented
• 64% of parents believe games are a positive part of their children's lives
• 86% of the time children receive their parents' permission before purchasing or renting a game
• 48% of parents play computer and video games with their children at least weekly
• 97% of parents report always or sometimes monitoring the games their children play
• 76% of parents believe that the parental controls available in all new video game consoles are useful

I spend a lot of time here trying to debunk media "moral panics," "techno-panics," or unfounded hysteria over the impact of commercialism in general on kids. To believe what some politicians and regulatory agitators have to say, today's youth always seem at the precipice of the moral abyss. Our misguided youth are seemingly all going straight to hell and they dragging our culture and society down with them.

Except they're not. It's all the same old tripe we've heard one generation after another. As the late University of North Carolina journalism professor Margaret A. Blanchard once noted: "[P]arents and grandparents who lead the efforts to cleanse today's society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation's adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children." And Thomas Hine, author of The Rise and Fall of the American Teenager, argues that: "We seem to have moved, without skipping a beat, from blaming our parents for the ills of society to blaming our children. We want them to embody virtues we only rarely practice. We want them to eschew habits we've never managed to break."

Anyway, I was reminded of this again today as I was finally reading through a report published last year by the U.K.'s Department for Children, Schools and Families and the Department for Culture, Media and Sport. It's entitled "The Impact of the Commercial World on Children's Wellbeing" and it is very much worth your attention. Several people had recommended I check it out in recent months, but I'm ashamed to say I am only now getting around to it as I prepare an amicus brief for the Supreme Court's review of a California video game law. But this U.K. report is not to be missed. Here are a few of the choice bits from the study:

• The status of industry efforts to promote online safety through educational efforts, parental control technology, blocking and filtering software, age-appropriate labels for content or other technologies or initiatives designed to promote a safe online environment for children;
• The status of industry efforts to promote online safety among providers of electronic communications services and remote computing services by reporting apparent child pornography, including any obstacles to such reporting;
• The practices of electronic communications service providers and remote computing service providers related to record retention in connection with crimes against children; and,
• The development of technologies to help parents shield their children from inappropriate material on the Internet.

Yesterday, the Federal Trade Commission (FTC) hosted an all-day workshop on "Protecting Kids' Privacy Online," which looked into the Children's Online Privacy Protection Act of 1998 (COPPA) and challenges posed to its enforcement by new technological developments. The FTC staff did a nice job bringing together and moderating 5 panels worth of participants, all of whom had plenty of interesting things to say about the future of COPPA. But I was more struck by what was not said yesterday. Namely, there was:

• ZERO explanation of the supposed harms of advertising, marketing, and data collection. Advertising-bashing is an old sport here in Washington, so I guess I should not have been surprised to hear several panelists yesterday engaging in teeth-gnashing and hand-wringing about advertising, marketing, and the data collection methods that make it possible. But this grousing just went on and on without any explanation by the critics of the supposed harms that would result from it.


• ZERO appreciation of the benefits of advertising, marketing, and data collection. Not once yesterday -- NOT ONCE -- did anyone pause to ask what it is that makes all these wonderful online sites, services and content free (or dirt cheap) to consumers. Everyone at this show was guilty of the "manna fallacy" (that all this stuff just falls magically to Earth from the Net Gods above). Well, back here in the real world, something has to pay for all those goodies, and that something is advertising and marketing, which are facilitated by data collection! Or would you like to pay $19.95 a month for each of those currently free sites and services? Yeah, I didn't think so.

On April 29, I testified before the Senate Commerce Committee's Consumer Protection Subcommittee on Examining Children's Privacy: New Technologies and the Children's Online Privacy Protection Act (COPPA). Today, I filed 23 pages of responses to questions for the Congressional Record from Subcommittee Chairman Mark Pryor (D-AR), touching on many of the concerns and issues Adam Thierer and I developed in our May 2009 paper, COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.

At the April hearing, Senators asked whether COPPA could be improved. Today, as in my April oral and written testimony, I again urged lawmakers to "tread carefully" because COPPA, as implemented, basically works. I explained why COPPA's technological neutrality and flexibility should allow the FTC to keep pace with technological convergence and change without the need for legislative changes. But expanding the statute beyond its limited purposes, especially to cover adolescents under 18, could raise serious constitutional questions about the First Amendment rights of adults as well as older teens and site and service operators, and also have unintended consequences for the health of online content and services without necessarily significantly increasing the online privacy and safety of children.

The Committee's follow-up questions also inquired about COPPA's implementation, the subject of today's FTC Roundtable. I noted that COPPA implementation has gone reasonably well, meeting its primary goal of enhancing parental involvement in children's online activities, but that implementation has come at a price, since the costs of obtaining verifiable parental consent and otherwise complying with COPPA have, on the one hand, discouraged site and service operators from allowing children on their sites or offering child-oriented content, and, on the other hand, raised costs for child-oriented sites. The FTC could do more to lower compliance costs for website operators, thus allowing achievement of COPPA's goals at a lower cost for parents and kids in foregone content and services.

Finally, I raised concerns about the FTC's seeming invitation for changes to the COPPA statute itself. As a general matter, regulatory agencies should not be in the business of re-assessing the adequacy of their own powers, since the natural impulse of all bureaucracy is to grow. Though the agency has done a yeoman's job of implementing COPPA, ultimately it is the responsibility of Congress, not the FTC, to make decisions about modifying the statute.