Saving Online Free Speech

Not since the passage of the Communications Decency Act of 1996 has online freedom of speech been under such intense attack in Washington. Proposals are pending or being considered in the 109th Congress that would impose:

  • Extensive data retention mandates requiring companies to collect information about all of their customers for many months or even years;
  • Mandatory age verification of minors before they’re allowed to go online;
  • Potential regulation of voluntary industry ratings or labeling systems (such as the video game industry’s ratings system);
  • A mandatory new top-level Internet domain designation (“.xxx”) for adult-oriented websites;
  • A ban on social networking sites in schools and libraries;
  • Mandatory labeling for “sexually explicit” websites;
  • Other filtering/labeling requirements.

    The Department of Justice has also pushed some of these ideas and floated its own versions of new regulations.

    Legitimate concerns motivate many of these efforts. Government officials feel that more needs to be done to help parents shield their children from content they find objectionable while also helping to root out more serious threats to child safety online, especially online predators.

    All companies doing business online – broadband providers, ISPs, search providers, web portals, social networking sites, online gamine services, etc. – must show policymakers and the general public that they are serious about addressing these concerns. If companies and trade associations do not step up to the plate and meet this challenge soon – and in a collective fashion – calls will only grow louder for increased government regulation of online speech and activities.

    What is needed is a voluntary code of conduct for companies doing business online. This code of conduct, or set of industry “best practices,” would be based on a straight-forward set of principles and policies that could be universally adopted by the wide variety of operators mentioned above. These principles and policies, which could take the form of a pledge to parents and consumers, must also be workable throughout our new world of converged, cross-platform communications and media.

    For such a code of conduct to gain traction and be taken seriously, it will require the leadership of major online companies, media providers and their trade associations. A commitment by these market leaders will help recruit smaller players while also increasing credibility for the effort with policymakers, the public and the press. Benchmarks will also be needed to evaluate the effectiveness of these efforts over time. Those evaluations can inform potential future adjustments to the voluntary code, especially as new services and technologies come online.

    Two important caveats are in order. First, unlike previous industry “codes” – such as those pushed on the movie and comic book industry by government officials a half century ago – this code would not seek to delimit acceptable forms of speech or expression by those adopting it. Rather, the purpose here is to allow for the maximum amount of legal speech and expression while simultaneously providing users with the information and tools needed to block or curtail the flow of potentially objectionable media content in their lives. Information and education lie at the core of this effort, not censorship.

    Second, the creation of such a code would go a long way toward satisfying one for the leading criticisms of current industry policies of approaches the lack of consistency or standardization. A voluntary code of conduct would have many similar elements and, hopefully, companies and trade associations might even work together to develop a common “look and feel” to their tools and systems. That being said, this code should not be considered a universal ratings or filtering scheme that would replace all other systems. Ample room should remain for experimentation by those adopting such a code, especially for those who wish to provide more stringent controls to their users.

    In conclusion, this process should not be viewed by industry actors as a burden, but rather as an opportunity to highlight the many steps each actor is already taking – or will commit to undertake in the near future – to address concerns about online content and child safety. By making a commitment to parents and consumers to help them get this job done in a unified and comprehensive manner, the online industry will help head off the inevitable push for greater government involvement. That regrettable push would entail rules and regulations posing grave threats to online freedom of speech and expression.

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