CONTENT RATINGS FOR THE INTERNET AND RECREATIONAL SOFTWARE

Submission to National Telecommunications & Information Administration Report On Self Regulation

Introduction

Self-regulation is a tough road. It requires considerable effort, time, resources, good judgment, honesty and fair execution on the parts of all those within an industry who have opted (or have been persuaded) to regulate themselves. It is usually preceded by threats of or actual legislation by government and is often accompanied by a skeptical public who must be won over to the notion that the fox can, indeed, be trusted with the hen house. In this paper, I will outline two examples of self-regulation, one in the field of computer games, the other, harmful material on the internet, both of which illustrate the difficult, though not insurmountable, challenges of an industry policing itself.

Mortal Kombat

Back in the winter of 1993, U.S. Senator Joe Lieberman of Connecticut was made aware of the killing move in the hit computer game, Mortal Kombat, in which the winning player, severs off his opponent's head and pulls out his spinal cord. This, together with similarly gruesome and sexually explicit material in other games, persuaded the Senator that something needed to be done. Children were being increasingly exposed to excessively violent material in what were supposed to be entertainment games. And there was very little that parents, concerned about what their children were being exposed to, could do to discern from the cover of a box what lurked within a cd-rom or Nintendo video game.

Together with Senator Kohl of Wisconsin, Senator Lieberman held a series of hearings where senior executives of the computer and video game industry were called to testify. Legislation in the form of the Video Game Ratings Act of 1994 was drafted and held as a potent threat over the heads of the industry to get their houses in order. As with the recent V-Chip legislation, there was a get-out clause that allowed the industry a one year period to create a self-regulated rating system for computer games and be spared the new law. Otherwise Congress would create and administer a rating system itself.

This challenge was taken up by the Software Publishers Association, the largest trade association in the computer software sector. Together with five other associations, the SPA established a Computer Game Ratings Working Party to address and to meet the elements that Lieberman stated would be benchmarks 'to measure the industry's efforts'. A 'good' rating board would have to: be independent have members who reflect the public, not the industry have the power to penalize wrongdoers be able to keep pace with technological advances advertise the ratings so that they become as well known to purchasers as movie ratings are today

Further, Lieberman laid out the three aspects that were essential for the self-regulated ratings system to be seen as credible: it must be subject to sanctions; it must provide as much information about the reason for the rating as possible; and it must have 'tough, conservative standards'.

Statement of Principles

To its credit, the SPA's Working Party addressed each of these areas in their Statement of Principles (attached). This statement was agreed to by the fifty-plus members of the Working Party and it specifically addressed two key areas: what kind of a rating system was to be developed and, crucially, what kind of organization would oversee it. Of the seven principles listed, two stand out in this current debate. The first reads:

'To ensure credibility amongst consumers, and to build broad participation by all segments of the software industry, the ratings program must be administered by a truly independent body organized outside of any industry trade association.'

The other significant principle states:

'The ratings program should strive to achieve a high degree of objectivity in order to assign consistent ratings independent of industry pressure.'

These ambitious goals were later to be transformed into the non-profit organization, the Recreational Software Advisory Council and the ratings system for computer games (and later for the Internet) developed by Dr. Donald Roberts, Chairman of the Communications Department of Stanford University.

A new kind of rating system

Unlike a motion picture, which averages one and a half hours to view, a typical computer game can take one hundred hours of playing before you have uncovered all the material on a disk. This fact alone posed an enormous challenge to the Working Party when they began to design a rating system for interactive cd-roms. In addition, there was a growing chorus of criticism leveled at the MPAA system familiar to movie goers for being too subjective, secretive in its criteria and decision-making processes, judgmental about who should or should not see a film, lenient on violence and unduly tough on sex. And it was obvious that a full, prior-review system involving a panel of reviewers, interacting with the over 2,000 titles produced each year, was not going to be feasible for this market.

The Working Party turned to Dr. Roberts, an expert on the effect of media violence on children, to devise a content-based, rules-driven, objective, self-rating system that would give detailed, yet easy to understand information about the levels of Violence, Nudity/Sex and Language in a given product. These categories would be rated automatically through an ingenious questionnaire that branched the game maker through a series of highly detailed and carefully defined questions, the answers to which were either 'yes' or 'no'. The internal algorithm allowed for immediate access to the category scores (from 0 to 4) and to descriptors which give further information about what a parent can expect to find in a title. Thus, Doom rated a Violence Level 3, with the descriptor, 'Blood and gore'. The rating score is then displayed on the front cover of the box in a clear and unequivocal way to alert parents of the content of the box, much like the FDA food labels for a can of soup.

To fund the administrative costs of administering and promoting the system, a fee scale was created which took into account the financial status of the software company taking part. Currently these charges are:

$400/title for companies with a gross income in their previous financial year of over $1M $250/title for those between $100,000 and $1M $50/title for those under $100,000

Formation of RSAC

To administer this new system, the Working Party helped to establish the Recreational Software Advisory Council in a way that met with the Senators demands for credibility. Written into the By-laws of the new organization was a requirement that there would always be an inbuilt majority of Board members from outside the industry. And, although not stated in the constitution of RSAC, the Board decided to appoint the Executive Director from a family and social-welfare field. (My previous position was Director of the National Stepfamily Association of Great Britain). Thus from its inception, RSAC would have an arms-length distance from the industry that had helped to create it. It became a vital part of its early success that the organization could be seen to be fair, balanced and not unduly influenced by game makers and their distributors.

Checks, balances and audits

One of the most critical aspects of any self-regulatory regime is the lengths that it goes to ensure that people aren't cheating the system. Software makers using the RSAC self-rating scheme must enter into a legally binding contractual agreement with each game they rate. Section 7 of the contract (attached) states:

'In the event that the Rated Software Title does not meet the standards and specifications of the Assigned Rating, or there is any material misrepresentation or violation of the Ratings Application, RSAC may, after written notice and an opportunity for Applicant to defend the basis for the Assigned Rating, take appropriate action, including but not limited to corrective labeling, consumer and press advisories, product recalls, and/or monetary fines.'

In other words, if the makers of Doom tried to pass the game off as a Violence Level 1, they could face considerable legal action, bad press and a fine of $10,000. Inherent with that threat, would be the even greater threat that if the industry couldn't participate fairly in its own rating system, then Congress would dust off the shelved legislation and institute its own.

In addition to the legal contract, spot checks and audits of a random selection of the rated software titles was begun. A team of auditors was established in the Psychology Department at Yale University under the guidance of Dr. Dorothy Singer. Reviewers were asked to play through all levels of the games and to fill in the questionnaire themselves to see what score they got. (They were assisted by 'cheat guides' and 'god codes' provided by the software publisher to ensure they reached the end.) These scores were then compared with those generated by the game maker and any discrepancies taken up with the game company. In some cases, the RSAC Appeals Committee was set up to adjudicate between what a game publisher thought the game should be rated and the results of the questionnaire and in-built scoring system. (Out of nearly 500 games, only two have been taken to a full Appeals Committee.)

Retailers

Like the movie rating system, RSAC is a voluntary scheme. If you are a film maker, you don't have to rate your movie. If you are a computer game maker, you have a choice to rate or not. If, however, you wish to distribute either your movie or cd-rom, it is more likely that you will feel compelled to rate. In the movie industry, NATO (National Association of Theater Owners) clearly states that its members will not show unrated movies. Retailers of recreational software have shown a similar attitude to unrated computer games. Wal*Mart was the first chain to declare that they would only stock rated games and that they would reserve the right to not carry product which, in their opinion, did not reflect the values of their company. Toys R Us, Sears, and NeoStar have either made similar announcements or made it known to software makers that if they want shelf space, they had better submit their titles for rating.

Again, Senator Lieberman was instrumental in bringing pressure to bear on this part of the industry. He and Senator Kohl wrote to the major retail outlets and held a press conference praising those who conformed, and criticizing those who did not (attached). After nearly three years of entreaties, private and public pressure, drafted legislation and full-scale Senate hearings, virtually all software games that sell at retail have a rating label on them. After some initial resistance from within parts of the industry, rating labels have become so commonplace that it is hardly commented on by software publishers or retailers. Through a process of carrot and stick, the government has ensured that the industry has 'voluntarily' imposed a regulatory rating scheme upon itself without the need of a dedicated government department and all the expenditure required to bring one into place.

Content ratings for the internet

If Senators Lieberman and Kohl used a combination of carrot and stick on the software industry, the government has used nothing but stick on the internet industry. From the hopelessly ill-informed Senate Judiciary hearings in the summer of 1995 to the crude (and possibly unconstitutional) elements of the Communications Decency Act, Congress has badly managed the issue of how or even whether to regulate the Net. As this is being written, the CDA remains in legal limbo awaiting a Supreme Court ruling. The very mixed message given by government has created an anxious waiting period as content providers, civil libertarian groups, ISPs and the major telecom companies all look to the Court for clarification. In the meantime, groups such as Enough is Enough are promising some kind of 'Son of CDA' if the current law is overruled on constitutional grounds. Nevertheless, there are some positive signs that, once again, an industry will get behind a self-regulatory scheme: this time in the area of content filtering and parental controls on the internet.

RSACi - RSAC on the Internet

In August 1995, Senator Grassley chaired a Senate Judiciary Hearing into the issue of pornography on the internet. These hearings were held in an atmosphere of near hysteria following the cover article in Time magazine on the Rimm report suggesting that filth pedlars roamed the net unchecked and that merely switching on your computer would expose you and your children to an avalanche of smut, porn and bestiality.

In my testimony to these hearings (http://www.rsac.org/press/950724.html), I argued for restraint on the part of would-be government regulators and, instead, suggested that the industry be encouraged to get behind a self-regulatory scheme. I committed the organization at that time, to adapt and convert our highly regarded rating system for use on the web.

We had to move quickly. The Exxon amendment was gaining momentum (and not a little notoriety). Fortunately for us, an important initiative was being formed at the World Wide Web Consortium (W3C) at MIT. This became known as PICS (Platform for Internet Content Selection). PICS is a protocol or computer language that enables rating systems to be read and understood by browsers, web masters and search engines. It is the HTML of rating systems.

RSACi Working Party

During the fall of 1995, we formed the RSACi Working Party to convert the rating and selection process from the physical world of software boxes and retail shelves to cyberspace. We had participation from Microsoft, Bell Atlantic, Time Warner, MIT, Stanford University and George Washington University. We decided early on that the system would have to be fully web-based with no paper transactions at any stage. It was agreed that it would be a free system to both content providers and to users (parents, teachers, etc.). And we would incorporate an element that became known as 'granularity' or the ability for a content provider to rate their website with one rating, or to separate out various branches, directories, even individual pages with separate ratings. Thus the Playboy site could rate their Jimmy Carter interview of 1976 differently than the January Playmate of the Month.

Financing RSACi

Unlike the computer game ratings, RSACi was planned to be a free service. The Working Party wanted to ensure that there were as few inhibitors to using the voluntary scheme as possible, and cost was a big one. In addition, there was an issue of how secure cash transactions would be over the net and the resulting administrative headache of chasing non or late payers.

Instead, the group opted for a sponsorship scheme to help raise the necessary financing to run the new ratings service. Three levels of sponsors were created:
Corporate Partner - $100,000
Corporate Sponsor - $50,000
Corporate Donor - $10,000

and a category known as an RSACi Licensee for companies that wished to use the system for a particular application within their own product.

For their sponsorship, companies were promised a considerable PR and media blitz to announce their generous support. In addition, there would be a prominent link from the RSAC home page back to their web site and a place on the newly formed RSACi Advisory Committee. Sponsorship of RSACi was promoted as a way of showing leadership and corporate responsibility in this highly contentious and political issue.

A business plan was produced and sent out to many of the top internet companies with appeals for their support. A sum of $350,000 would have to be raised in the first year to get the system up and running. And herein lies a major problem area for all self-regulatory schemes - Who pays? In the case of a homogenized and coherent industry such as the movie or computer game industry, it is very clear that fees should be levied against the producers of the material to be rated. On the internet, it is less clear who makes up the industry and, therefore, who should be responsible for supporting such a scheme.

Of course, one of the greatest weapons in the arsenal of a self-regulatory body is the threat (real or imagined) of further or worse government legislation if the industry concerned doesn't get its act together and participate. This, however, can back-fire particularly in the arena of free speech and expression on the internet. News sites and civil libertarian groups can (and some have) argued that should further legislation come down the line, they will be at the forefront of challenging it on constitutional grounds.

Launch of RSACi

By mid-April all of the elements were in place. Sponsorship from Microsoft, the Software Publishers Association and Dell Computers was announced (later to be joined by CompuServe, US Web and UltraNet) and the service began at the RSAC home page. Every major newspaper in the United States covered the story and the resulting interest was impressive. Since the launch over 11,000 sites have rated at a rate of over 100 sites per day. The RSACi system has been incorporated into the Microsoft browser, Internet Explorer 3.0 and into the leading software blocking device, CyberPatrol. Netscape has publicly announced that they will incorporate PICS into a later version of their browser, but have been unspecific about when.

Checks, audits and contractual arrangements

Similar to the computer game rating system, RSACi incorporates a number of checks and balances to ensure fair play. Every site that is rated is checked to ensure that the rating labels are correctly placed within the header of the rated site. In addition, a random selection of sites are chosen each day for thorough evaluation to ensure the rating tags accurately reflect the content on the site. Further, a web crawler is being developed that will visit every RSACi tag on the web and check it against the RSACi database of registered users. There is also a proposal to incorporate digital signatures that will give further security and reliability to the labels.

A further inhibitor to cheating the system is the contractual agreement entered into when using the RSACi system. This appears at the beginning of the ratings process and alerts the content provider that they are entering into a legally-binding agreement with RSAC that they have not willfully misrepresented themselves in the ratings process. Lastly, we depend on the citizens of the net to alert us to sites that they have come across that they feel have been wrongly labeled. (To date, only three sites have been brought to our attention in this way. Two of them had misunderstood the process, and the third decided to unrate.)

International dimension

What began as a response to threatened legislation in the U.S. has, unwittingly, become a major factor in the discussions regarding content on the internet within governments around the world. In addition, our system is widely used, as it is currently structured, by sites throughout Europe (over 1,000 sites rated in the UK alone), the Far East and Australia. And in virtually every case, governments are struggling with the issue of whether to wade in with draft legislation, or to encourage, or even coerce, the internet industry to regulate itself.

In Britain, the association of internet service providers have backed PICS and called upon all of their users to rate with RSACi by the end of the year. In the European Union, the Commission dealing with telecom issues, DGXIII, have backed the notion of self-regulation and commended RSACi (with some reservations) in their official report. The Chairman of the Australian Broadcasting Authority, Peter Webb, recently backed both PICS and RSACi in a public address in Sydney. And interest has emerged from Norway, Canada, Spain, Singapore and China.

We are currently in discussions with a number of major ISPs in some of the countries listed above, to mirror the RSAC site in their country to allow for easier access for local users. Also, the system itself would be localized to ensure that the terms and questions were literally and culturally translated while still preserving the inherent logic of the rating scales. By its very nature, the internet is an international phenomenon, albeit with a heavy American accent. Any effectual self-regulatory scheme will have to encompass the interests and concerns of a wide range of countries and cultures.

The V-Chip and television ratings

Running alongside the development of a self-regulatory scheme for both computer games and the internet, has been the equally political debate over content on television. Congressman Markey and Senator Conrad successfully steered the V-Chip amendment through Congress during the Telecom Bill passage and a steering group headed by Jack Valenti have deliberated for the past year on what kind of rating system should be developed for TV. We have been a part of that discussion and made a presentation to the Working Party in the summer of this year. We have offered our experiences in the self-regulatory field of content rating and proposed a modified version of the RSAC system could be used with the V-Chip. We also recommended that an independent body oversee the ratings process with representation from outside the industry to include child experts, psychologists and children advocates.

Unfortunately, the Valenti group appear to taking a very different stand. From all indications, the ratings process will be completely controlled by the industry with no outside involvement whatsoever (similar to the MPAA movie ratings system). Also, the concerted call from virtually all interested parties for detailed content advisories for violence, sex and language seems to have gone unheeded. It remains to be seen if the FCC will even approve the scheme as it now stands. If it is rejected, there are already signs that the TV industry will take the whole issue to the Supreme Court citing the First Amendment. It is possible that this example of (coerced) voluntary self-regulation will die a dramatic death or re-emerge in a federally mandated way. It would be a great pity indeed, if this historic opportunity for the television industry to redeem itself after decades of criticism, was lost in a Supreme Court standoff. Only time will tell if self-regulation can work in this highly politicized industry.

Reflections on self-regulation and the role of government

In some ways successful self-regulation comes down to carrot and stick. What are the positive incentives that will motivate an industry to regulate itself and how far can the government go to threaten, cajole or plead with an industry to get its house in order? And at what point does a legislature simply force legislation onto a reluctant and recalcitrant sector?

From my experiences in two different, though related industries - software and the internet, and my involvement with a third, television, I would say that it is very rare for a group of companies to voluntarily (in the true sense of the word) and without prompting, decide to set up a rigorous, self-policing system that will cost its members time and money to set up, administer, promote and develop. Further, it could be argued that to do this would run counter to the mission of most trade associations unless there was a very real and potent threat of similar if not worse legislation coming from central government. Only then can an industry association legitimately spend its member dues on rallying behind a self-regulatory regime.

In my view, it is the role of government to reflect the legitimate concerns of the public and to bring these issues to a wider audience through hearings, press briefings and, eventually, draft legislation. If this means that legislators embarrass, criticize or even humiliate an industry into recognizing its shortcomings (take the tobacco industry for example), then so be it. If it means that through legitimate pressure, Congress can persuade an industry to take action itself or suffer the consequences, then that seems like a perfectly reasonable role for them to take. And if, after months (and often years) of making their point, the government still cannot bring an industry group to act, then it is very much in the public's interest to legislate. It is then up to the courts to decide if the regulator scheme created through central government legislation is constitutional.

I am a great believer in good self-regulation and in good government. With the right framework, checks and balances, oversight and controls, self-regulation is by far a more attractive route to take then central government mandate. But self-regulation is a tough road and it takes time, money and resources to make it work. It also requires a healthy partnership between industry, government and the general public for it to succeed.

Stephen Balkam
Executive Director
Recreational Software Advisory Council