Internet Video Regulation: Drip....Drip...Drip....

Regulation doesn't have to happen in a big swooping gesture (see Patriot Act).  More frequently, it happens through little drips -- until suddenly you're standing in three feet of water.

Well, kids, the roof just sprung a leak this afternoon.

The Senate Commerce Committee passed the "Child Safe Viewing Act of 2007" this afternoon.  Some are calling it the V-Chip 2.0 bill.

Senator Mark Pryor (D-AR) is the lead sponsor, and when he introduced the bill back in February, he said:

"Today's technology to protect children from indecency goes above and beyond the capabilities of the V-Chip. And with over 500 channels and video streaming, parents could use a little help. The time for the FCC to act on behalf of our children is now. My legislation will help make sure it happens."

Great intentions.  Really.  And, an approach that focuses on empowering parents, too.  Well done.

Yet, PFF's content regulation expert Adam Thierer says not so fast.  He published a paper this week that knocks the legislation and suggest that it would have many unintended consequences if passed.  You can review them all in Thierer's full report (PDF). 

I want to focus on one here.  It's the regulatory creep toward treating Internet and wirelessly delivered video the same as broadcast content. We've noted many times here that efforts in the name of protecting kids could be the bridge drug toward justifying regulations across platforms.  After all, from the perspective of a regulator who looks and the end and not the means, if "bad" content is getting to kids, why does the delivery system or the type of device they are seeing it on matter?

The Child Safe Viewing Act of 2007's language pretty much spells this out:

"the Federal Communications Commission shall consider advanced blocking technologies that may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms."

Thierer's perspective after the jump...

S. 602 is also problematic because it could potentially expand the focus and scope of the FCC’s authority to meddle with private rating systems and parental control mechanisms. 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 Tech Daily's coverage, the Center for Democracy and Technology's president Leslie Harris agreed:

"The Internet is fundamentally different than broadcast and other traditionally regulated communications.  "The FCC has no experience protecting children online."

Harris said the legislation would create "a study in search of a problem," and the inquiry, if conducted at all, ought to be pursued by "a truly neutral body."

Note that Tech Daily also says that the legislation was "watered down" to:

"make the bill into a 'notice of inquiry' instead of a formal rulemaking in an attempt to comfort some critics. The change could be significant in that 'inquiries' gather data, while rulemakings consider policy changes."

Still, why are my socks getting wet?

(Update:  Ars Technica's take)

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