Wednesday, January 20, 2010

[RFC] Comment Sought On Notice Of Proposed Rulemaking Regarding The E-Rate Program And Compliance With The Protecting Children In The 21st Century Act

Comment Date: February 18, 2010; Reply Comment Date: March 5, 2010

"On November 5, 2009, the Commission released a notice of proposed rulemaking (NPRM) seeking comment on revising rules regarding the schools and libraries universal service support mechanism, also known as the E-rate program, to comply with the requirements of the Protecting Children in the 21st Century Act. Among other things, section 215 of the Protecting Children in the 21st Century Act, titled Promoting Online Safety in Schools, revised section 254(h)(5)(B) of the Communications Act of 1934, as amended, by adding a new certification requirement for elementary and secondary schools that have computers with Internet access and receive discounts under the E-rate program. The Commission also proposed to revise related Commission rules to reflect existing statutory language more accurately.

"Interested parties may file comments on or before February 18, 2010, and reply comments on or before March 5, 2010. All pleadings are to reference CC Docket No. 02-6. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS) or by filing paper copies. [See original notice for detailed filing instructions and ex parte notice]

"For further information, please contact Anita Cheng or Regina Brown, Telecommunications Access Policy Division, Wireline Competition Bureau at (202) 418-7400 or TTY (202) 418-0484.

"Released: 01/20/2010. Comment Sought On Notice Of Proposed Rulemaking Regarding The E-Rate Program And Compliance With The Protecting Children In The 21st Century Act. (DA No. 10-102). (Dkt No 02-6 ). Comments Due: 02/18/2010. Reply Comments Due: 03/05/2010. WCB . Contact: Anita Cheng or Regina Brown at (202) 418-0792, TTY: (202) 418-0484

Friday, January 08, 2010

[RFC] FTC Seeks Public Comment on Program to Keep Web Site Operators in Compliance With the Children's Online Privacy Protection Rule

The Federal Trade Commission is seeking public comment on proposed guidelines that are designed to help Web site operators comply with the FTC's Children's Online Privacy Protection Rule.

The proposed guidelines were submitted to the FTC by a non-profit organization known as iSAFE, Inc. under a provision aimed at industry self-regulation. This provision allows non-profit groups and companies to request FTC approval of proposed guidelines – known as safe harbor programs – that govern compliance with the Rule.

Web site operators participating in FTC-approved safe harbor programs are subject to the programs' disciplinary procedures. In cases where the FTC is considering legal action against a Web site operator, the agency takes into account the operator's response to safe harbor disciplinary procedures.

The Rule requires operators of Web sites that are directed at children under 13 years old and that collect personal information from them – as well as operators of general-audience Web sites that knowingly collect personal information from children under 13 – to notify parents and obtain their consent before collecting, using, or disclosing any such information. Since the Rule took effect on April 21, 2000, four groups – the Children's Advertising Review Unit of the Council of Better Business Bureaus, the Entertainment Software Rating Board, TrustE and Privo, Inc. – have received Commission approval for their safe harbor programs. In a Federal Register notice to be published shortly, the FTC seeks public comment about the proposed iSAFE guidelines; whether the guidelines provide “the same or greater protections for children” as those contained in the Children's Online Privacy Protection Rule; whether the mechanisms used to assess operators' compliance are effective; whether incentives for operators' compliance with the guidelines are effective; and whether the guidelines provide adequate means for resolving consumer complaints. The comment period will last for 45 days [after fed reg publication] . iSAFE's safe harbor application and the public comments received will be posted on the FTC's Web site at: .

NOTE: Publication of this Federal Register notice does not indicate Commission approval of the safe harbor application. The Commission has 180 days to review proposed self-regulatory guidelines and must set forth its conclusions in writing.

The Federal Trade Commission works for consumers to prevent fraudulent, deceptive, and unfair business practices and to provide information to help spot, stop, and avoid them. To file a complaint in English or Spanish, visit the FTC's online Complaint Assistant or call 1-877-FTC-HELP (1-877-382-4357). The FTC enters complaints into Consumer Sentinel, a secure, online database available to more than 1,700 civil and criminal law enforcement agencies in the U.S. and abroad. The FTC's Web site provides free information on a variety of consumer topics .

For Your Information: 1/6/2010

Office of Public Affairs

STAFF CONTACT: Mamie Kresses or Phyllis Marcus
Bureau of Consumer Protection
202-326-2070 or 202-326-2854

Thursday, January 07, 2010

Virtual Banishment and the First Amendment: Estavillo v. Sony Computer Entertainment of America

I saw this case in the excellent National Association of Attorneys General publication Cyber Crime e-newsletter .

Many of us host or sponsor online communities of one form or another. On occasion, this means we must engage in moderation of the discourse in that community, and, as chance may arise, on occasion, we must give some chap the boot from the community for violating the AUP or the TOS. Inevitable, the booted chap screams “First Amendment Violation,” to which we must respond, “The First Amendment restrains government actors – we are not government actors.”

Apparently, we are correct.

In the case Estavillo v. Sony Computer Entertainment of America, No. C-09-03007 (NDCA Sept. 22, 2009), Plaintiff claimed that Defendant violated Plaintiff’s First Amendment rights when Defendant excused Plaintiff from the Sony Playstation 3 Network (a gaming social network). Defendant filed a Motion to Dismiss for Failure to State a Cause of Action. Defendant is not a government and not, therefore, retrained by the First Amendment. Simple case, right?

But if remember back to 2nd year law school (I do my best not to), there were in fact times when non-government actors might be retrained by the First Amendment. The big case in this space involved “company towns.” These are instances where a company - a mining company for instance - owns all the land, all the buildings, all the stores, and essentially has taken on all day-to-day life functions of a municipality. See Marsh v. Alabama, 326 U.S. 501 (1945). In that case the Supremes held that the company could not arrest a fellow for walking down the company town’s public side walk and handing out religious literature, even though it was against company regulations.

The Court in today’s case rejects the notion that Defendant might be considered a company town.

Sony's Network is not similar to a company town. The Network does not serve a substantial portion of a municipality's functions, but rather serves solely as a forum for people to interact subject to specific contractual terms. Every regulation Sony applies in the Network is confined in scope only to those entertainment services that Sony provides. Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users (Pl.'s Reply in Supp. of Opp'n. to Dismiss 1), these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State." Hudgens, 424 U.S. at 519 (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 568-69 (1972)).

Defendant’s service is an entertainment service. Defendant does not provide roads or sidewalks. Defendant is not coming to put out any fires or arresting any jay walkers. Defendant does not plow the roads when it snows (of course, recently, failure to plow a road during a snow storm by no means disqualifies you from being a municipality).

Amazingly, not everyone is convinced. Prof. Jack Balkin writes (as Rob Heverly summarizes)

Rather, those where the space is created "to form communities or create channels for general public communication" could be subject to the First Amendment's requirements.

Really! Wow, that’s a bad idea. There are lots of communities created all the time. Churches. Youth clubs. Sports clubs. Communities for playing games. In the offline world, the question is quite clear that creating a space to form a community does not turn one into a government; indeed this activity is recognized under the Freedom of Association. And the Freedom of Association includes the freedom not to associate, to say, for example, “I don’t like your speech and I don’t want to associate with you.” It is at the core of the distinction between a restraint on government action and a restraint on private action. Private actors are allow to not-associate based on speech issues; government actors, not so much.

Online communities, much like offline communities, form as tribes around common interests. In order to maintain and pursue the objectives of that community of interest, moderators impose TOS and AUP. Some communities are successful; some are not. The makings of a good community frequently involves the hand of a moderator who can guide discourse without deterioration to Godwin’s Law (as an online discussion becomes protracted and entrenched, it becomes ever more likely that someone implement the rhetoric skill of comparing their opponent to Nazis or Hitler). (See another good article on Speech in Virtual Worlds by Eric Goldman)

This is in praise to good moderators and good discourse. “A single conversation across the table with a wise person is worth a month's study of books” - Chinese Proverb

No wait, this was about that case. The Court dismissed it for failure to state a cause of action; Sony, host of an online community, aint a government actor.

PS: You can learn about Cybertelecom's discussion group here.