INFORMATION & TECHNOLOGY LAW

Kids.Us the Newest Digital Divide:
Rules for the Kids Internet Under Development

By Jon M. Garon*
As published in Interface Tech News, October, 2002

On October 26, 2001, the U.S. Commerce Department's National Telecommunications and Information Administration (NTIA) entered into a four-year contract with NeuStar, Inc. for the management of the .us domain space. The .us domain space is the country code top level domain associated with the United States. As part of that contract, NeuStar has agreed to create and manage a second-level domain, designated as "kids.us."

The kids.us agreement with the NTIA sidestepped congressional efforts to require ICANN to create an international .kids top level domain. Instead, the second level domain has been created with governmental blessing, but far less governmental involvement as to its operational details. The NTIA recognizes that this distinction may be critical in avoiding legal entanglements regarding the First Amendment and the free speech rights of minors and adults wishing to provide information to minors. Nonetheless, Congress is presently insistent on playing some role in the kids.us initiative, with the House of Representatives passing H.R. 3833 in May of this year to legislate regarding the actions that the NTIA has already taken. The slightly out-of-date bill has not been enacted and the NTIA/NeuStar development of kids.us is proceeding rapidly, well ahead of Congress.

The key feature of the new, second level domain, is the kid-friendly environment which it will create. As a conceptual matter, this environment makes a great deal of sense. Parents and child advocacy groups continue to struggle with the barrage of sexually explicit content that young Internet users may encounter, so kids.us offers hope of an Internet space free of such abusive, inappropriate content. The proposal set the content benchmark as designated for children under the age of 13, the same as that used for the Children's Online Privacy Protection Act, so the privacy policies and parental approval required under the FTC guidelines will apply to all kids.us websites as well.

Detailed Content Review Required

Beyond the age and privacy guidelines, the NeuStar proposal seeks to create significant, detailed content regulations regarding the material that may be provided to the users of the kids.us domain. NeuStar readily admits that it is not particularly competent to design or implement these regulations, so it calls for the creation of a kids.us Content Managers to review the content of websites posted on the kids.us sites in light of the guidelines it ultimately adopts.

Unfortunately, NeuStar's lack of experience is already showing. Despite its call for a consensus decision regarding the appropriate content made available on this second level domain, NeuStar has already made two significant errors. First, it is attempting to limit the comment period to 30 days. In fact, the initial comment period was to run from August 30, 2002 until September 30, 2002, however, the press release did not go out until late on September 9, 2002, so the comment deadline has been extended to October 11, 2002.

The second mistake is more critical. NeuStar has attempted to cobble together its regulations out of a series of unrelated content guidelines from the Federal Communications Commission, the Children's Advertising Review Unit of the Better Business Bureau, and Supreme Court obscenity opinions. For example, NeuStar seeks to require that each site have "some component of educational and informational content for children on their respective domains." Similar regulations in broadcast television have resulted in shows such as "The Smurf's" being deemed educational because of the life-lessons' taught. Adapting these unworkable regulations should not be the starting point for creating a new regime of children's content.

NeuStar also lists certain categories of content that will be prohibited. Some of these make obvious sense, including sexual contact or sexual acts, lewd exhibitions, illegal gambling, tobacco products, and hate crimes. These may sometimes be difficult to define, but conceptually all these categories of speech are inappropriate for viewers under 13 and should properly be prohibited. Unfortunately, the list also includes far less clear or appropriate speech, including "revealing attire," legal gambling — which may include all free contests, and content that "contemplates alcohol consumption" — which would include all educational information about alcoholism and abuse.

The final paragraph of the draft proposal draws heavily on the Supreme Court's Miller test for obscenity by suggesting that content would be reviewed by the Content Manager(s) on the whole and may be allowed if the material has "serious educational, informational, intellectual, literary, artistic, political, or scientific value for minors." This test has never worked well for the courts and will involve the Content Managers in a morass of value judgments, hearings, and charges of censorship. If valuable, age-appropriate content may still be banned at the discretion of the Content Managers, then the domain will become an embarrassment to the government and its participants. Nor does the continued existence of the .com and other domains solve the problem. If the kids.us domain is even moderately successful, television broadcasters, newspapers, and others will treat the domain as a 'seal of approval' just as the PG film ratings are used by these groups to select among different advertisers and content providers.

Alternative Approaches Required

NeuStar says that it welcomes comments and alternatives, and they are certainly needed. NeuStar invites all interested parties to comment on this paper at KidsDomainComments@NeuStar.us through October 11, 2002. It is also encouraging discussion on the .US ccTLD Public Policy Forum. Learn more about the forum and how to subscribe.

The current proposal fails to meaningfully assist me as a parent or to protect my children's speech interests as viewers. Nonetheless, the kids.us space is sorely needed and some alternatives may make the concept workable.

First, I would propose that the second level domain be regulated not only at the level of the speech but at the level of the speaker. Libraries, museums, public broadcasters, schools, governmental entities, and other educational companies should be able to use the domain and self-regulate the content they provide. My preference would be to limit the domain to nonprofit entities, but this may not be essential to the success of the domain.

Accredited institutions, governmental agencies and other groups that are already subject to regulation should not be regulated by the Content Managers. The Portland, Maine Kid's Page should not be subject to content review by NeuStar. Of course, for private groups that are not otherwise regulated, some content restrictions will be necessary, but these content restrictions should be used only when there is no existing organizational regulation in place.

Second, the Content Managers should not serve as an advertising review board to decide if 45 seconds of a 'love thy neighbor' message is sufficient to let the "Fruity Pebbles" commercial be counted as educational content. If commercial entities are allowed on the domain, then why force them to create nominally valuable content which only blurs the distinction between education and commerce. Users will migrate to the content they value and forcing advertisers to create educational content encourages them to blur the distinction between education and sales.

Third, wholly lacking from the proposed regulations is any meaningful guidance as to the process for review of decisions to ban the offending content. More important than the original regulations will be the rules governing the creation and supervision of the Content Managers. Like the Hayes commission that dominated U.S. filmmaking for nearly half a century, the Content Managers will be the ultimate Big Brother, serving as content czar, banning some messages and promoting others. The lessons from the film industry show that concentration of censorship power has both a pervasive and corrupting influence. Such a structure is problematic at best but without any safeguards, the risks outweigh the benefits. At a minimum, concrete mechanisms and meaningful safeguards are essential to any regulatory scheme.

The creation of a safe environment on the Internet is a necessary idea whose time has nearly arrived. But it is critical that the regulations and structures selected be designed to protect our children, the free ideas, ideals, and institutions we cherish, and the values of open dialogue central to the Internet.

*Jon M. Garon is admitted in New Hampshire and California.

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