“Censorship is telling a man he can’t have a steak, just because a baby can’t chew it.”
Mark Twain
What makes the Internet difficult for lawmakers and regulators is that it is many things at once, some of them contradictory.
The combination of Internet broadband and social media make it the world’s biggest forum for opinions and contributions of any kind. It is also the biggest marketplace — Amazon alone grossed $93 billion in 2018. It is the biggest playroom and theater — networks for massive multiplayer online games (MMO’s) literally span the planet; shows and movies of any length can be live streamed.
But at the same time that Internet and social media users want the freedom and flexibility to contact and interact with practically anything, anywhere, anytime they want, they also demand protection for their privacy. (As they send DNA samples to total strangers like Ancestry.com, and pay for the privilege). Because Internet and social media are also the world’s biggest crime scene.
Another concern, most often voiced by conservative speakers and causes, is that the owners of the giant tech networks like Google and Facebook are shutting out points of view and opinions that differ from theirs.
Little Brother is more dangerous than Big Brother ever thought of being.
And finally, there is the specter of addiction. Regarding Internet and social media, this is a loaded and emotional term, implying that unsuspecting users, especially children (it’s always the children, isn’t it?) are subject to brainwashing and cognitive slavery, exploitation for the benefit of a shadowy upper class.
It is at this point, if you are involved with Internet and interactive gaming, that you should start to be very nervous. Because accusations of addiction and exploitation are time-tested weapons against gaming and gambling, both online and off. If the powers- that-be can go after the likes of Google, Facebook and Instagram, the gaming industry, long identified as bad guys, would be…. um, yeah.
Especially ominous is the fact that the U.S. government, the midwife and longtime protector of the Internet and its openness, is looking like changing sides. One Joshua Hawley, a rookie senator (R-Missouri), has decided that we all need saving from this insidious arrangement. He has introduced the Social Media Addiction Reduction Technology Act. (Oh, lookie! Take the first letter of each word and it spells out SMART. Isn’t that clever? Bet he thought of that all by himself.)
The main premise of this proposed legislation is that Big Tech’s business models are based on exploiting “brain physiology and human psychology,” so much so that the process now” interferes with the free choice of users”.1
Same snake oil, new bottle
This is the same argument that has been advanced again and again, over the years, to “protect” consumers against the wily temptations of supposed oligarchs and future dictators, posing as businesses. They’re out there, waiting. Always. Is there evidence to support this theory? No? Aha, that’s just more proof of their diabolical cleverness!
The proponents of this theory, never seem to understand that this argument is a blow against all our traditions and heritage. Because if you cannot trust average consumers with a few hours of their own time and a few dollars of their own money, if they are all such irredeemable idiots that government intervention is needed to protect them from themselves, then how can you possibly be in favor of letting them vote?
Skipping over such earthbound concerns, Senator Hawley wants to penalize social media companies who use “automatic refill” (essentially tagging along extra content, advertising, etc. without a direct request from the user for such content), the elimination of natural stopping points and autoplay (essentially the same thing). Also, anything like a badge or award for participation that does not “substantially increase access to new or additional services, content, or functionality.” Whatever the hell that is.
It will be illegal to omit a subprogram that will allow players to limit the amount of time they spend on any particular game or app, or provide, on demand, a log of how much any particular player has spent connecting with to it, with a default setting of thirty minutes per day per game or app.
Does that sound pushy? Over the top? Hang on, the Senator is just getting started.
If the app, game, or whatever has a “click through” icon that the customer must push in order to proceed, this law would require a “no thanks” icon, identical in size, shape, (but it doesn’t have to be the same color), available BEFORE the “continue” icon. In any case, no option may be automatic or preselected by the designer or operator.
And at intervals of no more than three years, the FTC would be required to report on “the issue of internet addiction and the processes through which social media companies and other internet companies, by exploiting human psychology and brain physiology, interfere with free choices of individuals on the internet (including with respect to the amount of time individuals spend online.”2
Note the presentation. There is no investigation, no inquiry into whether the Internet or social apps are “addictive.” That is presented as a fact, even though the word addiction” is nowhere defined. So never mind that the American Psychiatric Association has yet to formally identify a disorder called “Internet addiction” or “Internet gaming disorder” (not to be confused with “Internet gambling disorder,” a subspecies of plain-vanilla problem gambling).
The FTC and the U.S. Department of Housing and Human Services are supposed to concoct the regulations that govern all this. But state attorneys general may also institute civil actions for damages, restitution, etc. And in a final kicker, service of process is permitted wherever a defendant can be found. Which would be distinctly interesting if the accused social media operator is located in another country.
Of course, the proposed law is hopelessly overbroad. It could be construed to cover practically any activity on the Internet for social media, that features user generated content. In other respects, it is also hopelessly over-precise. It dictates what presentations and routines can be used for advertising, when they can be deployed, and decree the equivalent of a warning label against, well, everything a social media company does. It is as though the architects of Prohibition in 1919 did not ban alcohol, but instead composed official cocktail recipes; what size glass to use for which drink, how much ice, and whether it should be shaken or stirred. With fines and jail time for anyone who departed from the prescribed norm.
Addiction? Flow?
In any case, the fundamental argument of this and all such laws, is that unless tightly controlled, the activity in question, whether it’s booze or naughty pictures or whatever, will lead to addiction. But addiction is a funny word, and it has many different shades. Advertisers and reviewers of video games, for instance, use “addiction” to signify an enjoyable and exciting game, which customers will return to often. They are not talking about a physical or mental condition that forces the user to keep using or suffer withdrawal symptoms. In fact, the scientific consensus seems to be that so-called ‘‘pathological’’ game playing or social media use is a symptom of mental distress, not a cause of it, and needs no specialized therapy.
Rather they are referring to what game designers call “flow” — a steady, but not too difficult series of challenges that the players and users find attractive and absorbing. This progress — or “flow” from contest to more complicated contest, from conversation two interesting conversation — can lead to a state of extreme concentration. Players are pushing themselves — in fact, moving outside normal parameters of self-consciousness; external distractions are left behind, and some may lose track of time. But above all, they are having fun, experiencing optimistic engagement and heightened function. This phenomenon is by no means exclusive to gaming. This has long been observed in athletics and other forms of competition. And that includes politics. So-called “political junkies,” for instance, turn their obsession with the issues and candidates of the day into well-paid jobs.
The final irony is that this legislation was authored by a Republican — that’s right, the same GOP that supposedly champions limited government and personal autonomy. Notwithstanding, the good Senator wants to put a government leash on social media and the Internet, the better to “protect” us all.
But as the evidence continues to mount, of government malfeasance, intrusion and deceit, particularly as regards digital data it is becoming apparent that we all really need protection from, is our self-proclaimed protectors.
1 This, and all the other particulars quoted from this proposed legislation, can be found at https://www.hawley.senate.gov/sites/default/files/2019-07/Social-Media-Addiction-Reduction-Technology-Act.pdf (July 31, 2019)
2 Ibid, P7 ln 7-11.
Mr. Owens is a California attorney specializing in the law of Internet and interactive gaming since 1998. Co-author of INTERNET GAMING LAW with Professor Nelson Rose, (Mary Ann Liebert Publishers, 2nd ed 2009); Associate Editor, Gaming Law Review & Economics; Contributing Editor, TSN. Comments/inquiries welcome at [email protected].
