Video game aficionados might have to enter a credit card or find another way to verify their age before playing a networked game, thanks to a new push from advocacy groups who say they want to protect minors from in-game advertising messages.
In-game marketing has become so advanced that it "allows advertisers to track game users" and detect if people who are exposed to certain ads eventually use or buy the advertised product, a coalition including the Campaign for a Commercial-Free Childhood, the Center for Digital Democracy, the American Academy of Pediatrics, and U.S. PIRG told federal regulators this week.
They say (PDF) that because "mobile devices, instant messaging, social networks, virtual reality, avatars, interactive games, and online video" have become so pervasive, the Federal Trade Commission must enact new regulations to protect minors from electronic advertisements and other marketing messages. Not only young children are at risk, but the FTC "should seek ways to provide protections to teens," the coalition recommends.
Some of these groups have spent the better part of a decade training their crosshairs on video games. Allen Kanner, founder of the Campaign for a Commercial-Free Childhood, has claimed that "Grand Theft Auto 3 portrays the brutal murder of women, minorities, the elderly, and police officers."
Video games can contribute to "physical and mental-health problems," the American Academy of Pediatrics has warned. Kanner has endorsed laws restricting minors' rights to buy certain video games--which have been uniformly rejected by the courts. (The Supreme Court recently agreed to hear California's appeal in the fall term.)
Common Sense Media, which rates video games on violence and "consumerism" grounds, went even further this week by asking the FTC to change the "basic industry standard" from opt-out to opt-in. What's more, the San Francisco-based advocacy group says, the same federal regulations that currently apply to a 3-year-old toddler should be extended to 17-year-olds as well.
Critics say these proposals raise practical and legal problems: will networked Android games or PlayStation 3 games be required to collect driver's licenses or credit card numbers to screen for minors? And don't 17-year-olds, who might be college freshmen by then, enjoy some First Amendment rights to access information even if their parents say no?
"These suggestions and discussion are totally divorced from practical realities," says Berin Szoka, an attorney with the free-market Progress and Freedom Foundation. "It's a burden on site operators. It's a burden on speech rights, especially when you're talking about teens, to access information without parental consent. Teens do have speech rights."
The U.S. Supreme Court has ruled that older minors do enjoy First Amendment rights of their own. In general, the justices ruled in a 1975 case, speech "cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors."
Free speech advocates--the Electronic Frontier Foundation, the Center for Democracy and Technology, and Szoka's group--have assailed expanding the scope of existing federal regulations that cover minors younger than 13 who use the Internet. That would "raise significant constitutional concerns," the three groups told (PDF) the FTC this week. Instead, they say, "enhanced enforcement" of existing laws is preferable.
Adds Szoka: "If you don't want your kid to access a certain site or service, you can block access to that site or service. What this really comes down to is that people at these groups think that parents are too dumb or lazy to use these tools."
At the center of this political spat is the FTC, which set Wednesday as a deadline to comment on whether the Children's Online Privacy Protection Act, or COPPA, should be expanded or updated to take into account technological changes since it was enacted in 1998. The agency posed (PDF) scores of questions including these:
What are the implications for COPPA enforcement raised by technologies such as mobile communications, interactive television, interactive gaming, or other similar interactive media, consistent with the act's definition of "Internet?" Do operators, including network advertising companies, have the ability to contact a specific (child) using one or more pieces of information collected from children online, such as user or screen names and/or passwords, ZIP code, date of birth, gender, persistent IP addresses, mobile geolocation information, information collected in connection with online behavioral advertising, or other emerging categories of information? Is there data available on the proliferation of credit cards, debit cards, or gift cards among children under 13 years of age?
COPPA says that no Web site that's "directed at" children under 13 or that actually knows a visitor is a young child may "collect personal information from a child" unless it follows specific FTC regulations. Those rules say verifiable parental consent is necessary, which can currently be achieved through an e-mail exchange.
As part of its review of COPPA, however, the FTC is considering stricter methods of obtaining consent. The agency's April 5 notice in the Federal Register asks about "methods for delivering a signed consent form, other than postal mail or facsimile," and mentions as other possibilities "use a credit card," "call a toll-free number," or obtain "a digital certificate that uses public key technology."
While the coalition that includes the Campaign for a Commercial-Free Childhood has not explicitly asked for credit card or similar verification techniques to winnow out minors, it has cited "possible abuses" of the current parental consent mechanism. Common Sense Media goes further and claims that parental consent requirements "must apply to children under the age of 18." (The FTC already requires printed forms, credit cards, or digital signatures to prove parental consent in some types of transactions involving minors under 13.)
"It's time for the FTC to do a better job of protecting the privacy of children online, especially given the dramatic growth of new techniques for tracking and targeting them through mobile phones, video games, and virtual worlds," said Jeff Chester, executive director of the Center for Digital Democracy.
"The types of user information collected by these online gaming consoles overlaps, and sometimes exceeds, the data captured during traditional Web browsing," the coalition told the FTC. "Gamers release personal information when registering their accounts. In addition, behavior is tracked as they play games."
The cable industry's lobby group, the National Cable and Telecommunications Association, has taken the opposite position. It told the FTC this week that no significant changes are necessary and warned against "effectively barring children's access to interactive functionality within emerging technologies and platforms."
To longtime industry watchers, this debate echoes the controversy over the Child Online Protection Act, Congress' second attempt to restrict Internet porn. That law also restricted minors from accessing supposedly harmful materials by "requiring use of a credit card, debit account, adult access code, or adult personal identification number."
In 2004, the Supreme Court drove a stiletto through the heart of that statute, declaring that prodding adults to jump over age verification hurdles was unconstitutional. "To do otherwise would be to do less than the First Amendment commands," the majority said. (The ruling was finalized last year.)
If the FTC takes a similar approach, First Amendment lawyers are likely to attack it as well. Predicts PFF's Szoka: "If they get what they want...this statute that has never been challenged in court will find itself in a very ugly legal challenge. And lose."
Update 11 a.m. PDT: I've posted an e-mail exchange with Jeff Chester of the CDD. I asked him: "Let's say that 20 percent of the players of a new video game are under 13 and the game collects at least some personal information. How will the operator comply with COPPA in that case? How would you want verifiable parental consent to work, if not via a credit card? Which approaches are you suggesting should be on the table and off the table for video games and virtual worlds?" His response: "As we work on further developments, I will keep you informed."