By way of background: about a year ago, W&L held a symposium entitled Protecting Virtual Playgrounds: Children, Law, and Play Online. Lots of TerraNovans were there. The panelists gave some really great papers, which we turned into an issue of the Washington & Lee Law Review (that issue goes to press this month). And that's a good thing, because the papers were ready when Congress asked the FTC to report on the potential availability of adult materials to kids in virtual worlds. (The FTC's report is due out in early December.) More on my personal paper, which ended up with the title Virtual Parentalism, after the fold.
There are three things I find interesting about what I perceive to be the regulatory approach we're on. The first is that targeting a medium of communication because of some content that is available via that medium feels like a road we've been down before. This really feels like Congress's prior, failed attempts to regulate porn on the internet by arguing that protecting children is a sufficient reason to shut down protected adult-to-adult expression. The Supreme Court has said no repeatedly to this approach. Congress cannot force everyone using a communications medium to limit their expression to that which would be appropriate for children.
The second concern is practical. I really enjoy playing with my kids in virtual worlds, and I think that my presence with them in virtual worlds is the single best guarantor of their safety. I worry that segregating virtual worlds into children's and adults' spaces will not serve goals of child safety. Further, I think that it destroys a lot of what makes virtual worlds fun -- their ability to put communities back together, rather than tear them apart. World of Warcraft is a game I enjoy playing with my kids. There aren't all that many of those. Snakes and ladders, for example, causes me to cry bitter, bitter tears.
The third concern is a mix of practical and legal: I wonder if courts will or can use the reasoning they used in the cases above. What saved the internet from broad censorship was the possibility of private filtering. For lawyers, that's a strange argument -- normally Congress is prohibited from regulating speech if there is a less-restrictive law it could pass instead. The possibility of private action doesn't usually block Congress from regulating. But in these internet cases, the argument that Congress had to facilitate private action by law rather than regulate directly appeared to have some traction. That is, because Congress could have promoted private filtering by law, it was prohibited from direct regulation.
There have got to be some limits to this idea, I'm the first to admit. But my guess is that filtering will be a big part of the debate about regulation of virtual worlds, and my concern is that filtering is not where it needs to be in virtual worlds in order to fend off regulatory efforts. /Ignore is a great start. It is not nearly enough to fend off Congress.
As always, I'm deeply interested in your thoughts and comments either on the short-form thoughts above, or on the paper itself.