Thursday, May 8, 2008

How to Regulate Games: A Guide for Legislators

After reading about the latest Congressional attempt to go after the game industry, and given my legal background, I've decided to put together a list of the elements necessary to create a video game law that works. I'm sure you might be thinking, "Why, Mark, Why? Why would you do such a thing to your fellow gamers? You're just helping them." It's fairly simple: I'm not opposed to keeping things out of the hands of kids that their parents don't want them to have. On the other hand, I'm also not opposed to letting the parents make the choices. About the only thing I am opposed to is letting the government decide what I or my eventual kids can play. I am an adult, and I can make those decisions for myself and for my children when I become a parent.

The Nine Points for a Successful Video Game Regulation:

1. Forget the idea that you're only regulating games.
If you want a regulation to stick, targeting one media without credible proof of the difference between that media and all of the other things kids are exposed to isn't going to fly. So, if you want to regulate games, the bill needs to also regulate movies, maybe music, and potentially even books. It needs to be a universal approach to put parents in control. Don't forget the TV shows, which should probably also have their ratings appear on the DVD box sets. Whether the TV-MA is equal to an R rating would likely be the subject of some discussion. Based on the latest statistics from the Federal Trade Commission, M rated games are actually sold to minors less often than R rated movies, both as DVDs and movie tickets, and 'Parental Advisory' music. If anything, video games should be the least of your concerns if you are trying to protect the children.

2. Use the industry's rating systems.
The respective industries each have their own rating system, and each system is pretty well adapted for that industry. Not to say these systems are perfect, but they do the job they are intended for. The only real catch is 'Unrated' movies, which may have to default to an 'R' rating. The only industry without a rating system is the print industry (books, graphic novels, etc.), and I'm not sure any legislator is as worried about them as games, movies, or TV. Requiring in-store information about each rating system is probably reasonable as the systems do differ between products.

3. Forget 'banning' anything.
There are plenty of people out there who seem to favor the ability for games to be banned, as they are in other countries. This is the United States of America, the land of the free and the home of the brave. We have a Constitutional right to free speech. You will never succeed in imposing a ban on the kind of content we see in M rated games, so it would be in your best interest to move on to something that is a realistic goal.

4. Forget basing this on obscenity or harm to children. Use commerce.
If this regulation is going to pass, the idea of 'obscenity' won't do it. In fact, trying to base this on anything other than regulating the instrumentalities and channels of commerce pursuant to the commerce clause will likely fail. In fact, I'm not entirely sure even this bill would succeed based on commerce, but a broad based attempt to just prevent the sale of something rated by the industry as for 'adults' to people under 17 seems more realistic than trying to base it on inconclusive studies or other such justifications.

5. Forget the 'AO' rating for games.
The argument is often made that some games should be rated 'AO.' Forget it. An 'AO' rating is basically banning the game from sale, or classifying it with the most hardcore pornography. Unless the game is some sort of sexual simulation, it shouldn't garner an 'AO' rating. In general, the sexual content in an 'M' game falls short of what is in many R rated movies or even what is on television. Arguing that a game like GTAIV should be AO is just an effort in futility.

6. Enforce it only on products that have to be sold to those over 17.
There's a simple reason that this can only be applied to games rated M or movies rated R: most people under 15 or 16 do not have any sort of ID. If you had to get ID from a 13 year old to buy a T game or PG-13 movie, nothing would ever sell because they don't have ID. What we're mostly concerned about is adults buying content that is suitable for adults, correct? Then that's the limitation that should be in place.

7. Enforce it only on sales to those who can't present ID or present fake ID.
This is pretty simple: The goal is to put parents in control. If a parent decides their 16 year old can have an M rated game and buys it for the teenager, it is not the government's place to tell them otherwise. This is a point of sale or retail resale control only. The government has no place invading the living rooms of every family in America in order to override the judgment of parents on what media their child is allowed to consume.

8. This should be a fine only offense, and only a fine against the store.
It is the requirement of the store to perform their due diligence on each sale. Keeping that in mind, this isn't injecting heroin into the veins of children. The idea that it should be a criminal offense is just silly, and the idea that individual cashiers should be punished is equally inane. If a store has a problematic cashier, then the store should be held accountable and be allowed to deal with the cashier as they see fit.

9. Once it's done, leave it alone.
This isn't a "get one foot in the door so we can ban things later" idea. This is the end all, be all solution. As a legislator, you're passing your 'protect the children' bill that will give you some good publicity. It's the Constitution that won't let you go farther based on an objective look at the facts.

In a nutshell, that is a blueprint for a video game regulation that could actually work. Why hasn't anyone tried this yet? Most of the anti-game zealots are too interested in draconian punishments, outright bans, or overly complex and involved systems to actually explore what could practically work and withstand a legal challenge. Granted, it is a compromise between those who are on either extreme, but it is likely a solution that would allow game retailers and developers to stay in business, allow gamers to keep gaming, and allow many in the anti-game crowd to feel like they've protected the children.

I would rather leave the system be, given that in a gaming context it's actually working pretty well. But as it seems that the issue will never go away, I see having to show ID a pretty small price to pay for leaving the bulk of the rest of the system in place.

[Edit: Corrected the point count, Typos.]


Unknown said...

I still don’t see how this approach could work. Wouldn’t using a given industry’s voluntary rating system be giving a private entity force of law? That’s a no-no from what I understand (unless the gov’t is defining the standards by which the ratings are applied).

Besides, it’s still a content-based restriction that, to me, seems to fly in the face of free speech. I could be wrong but this sounds like a strict scrutiny thing where you’d have to prove there was actually a need to prevent the sale of M-rated games (or movies or whatever) to minors, that preventing the sales would actually keep this stuff from kids, and that it’s the least restrictive means.

Seeing as there is no evidence of harm, purchasing this stuff themselves is the least common method of kids obtaining it, and the fact that voluntary enforcement, parental responsibility, and parental controls (on consoles, PCs, and TVs) are more effective and less restrictive, I don’t see how content based legislation could ever work.

‘Course, I’m not a lawyer or student of law so maybe I’m just looking at this all wrong.

Andrew Eisen

Mark Methenitis said...

Congress is not allowed to delegate certain authority, but this system is basically how TV ratings work. TV ratings are a voluntary system created by the broadcasters and enforced by the FCC.

Unknown said...

Yeah but broadcasters license their spectrum of the airwaves from the FCC and are thus bound to certain content standards, right? How does that apply to a retail store physically handing me a product that I’ve purchased from them?

Andrew Eisen

Mark Methenitis said...

That's the difference, it's a regulation through commerce. This is more like a hybrid between the TV rating system and the franchise regulations.

Congress has the ability to delegate certain authority, but not the authority to delegate the ability to legislate (or have judicial authority or executive power).

Likely, this would have to be run through the FTC, but it would more or less work like the TV arrangement, where private industry can come up with the ratings and the agency can enforce those ratings. The ability to derive this power, though, comes from the ability to regulate commerce (and these games are invariably in interstate commerce) rather than based on the ability to pull a communications license. That's also why it would have to be limited to a point of sale restriction.

Unknown said...

Ah, I gotcha.

Thanks for explaining.

Andrew Eisen

Jabrwock said...

How would that work for appeals, for example if a company wanted a "T" rating (no ID), but got an "M" (ID required) due to content where they dispute that it deserves the rating it got. Would they take it to the ESRB (the ratings issuer), or the FTC (the ratings enforcer)?

In Canada, most regional ratings boards have "adopted" the ESRB ratings, and reserve the right to modify them if the government ratings board deems it necessary (hasn't happened so far), but they allow the ESRB to handle day to day rating decisions until an appeal is needed. That's how we get around our version of the 14th Amendment. We're not technically enforcing a 3rd party set of rules, we're just rubber stamping the "approved by government" onto the commercial system (until there's a complaint). ;)

I've always wondered though about the FCC and it's enforcement ability. Because really it *is* making judgment calls on the morality of certain material and whether it's explicit/obscene.

Dread Lord CyberSkull said...

Reasonable, well thought out, and just plain good advice. It'll never work. ;)

GriceTurrble said...

You draw the parallel to the TV ratings system that is enforced by the FCC, but isn't that enforcement justified solely by the fact that content on television is widely available without a commercial transaction between broadcaster and viewer?

Furthermore, consider that premium cable channels that must be purchased at an additional cost to the consumer are not regulated by the FCC simply because of the transaction that occurs. The same is true of satellite radio.

Games, movies and books must be similarly purchased. How, then, can regulation of those media be enforced by a government agency?

I mean, I'm all for higher levels of compliance with the ESRB and MPAA systems at point-of-sale, but I don't see the connection with the TV ratings system, and thus I can't see how it's legally defensible.

ajr82 said...

With the exception of the Constitutional aspects that are unique to the US system, what you're proposing sounds a lot like the Canadian system, where each province has a film classification board that applies to both movies and games, and only has the power to rate, not to ban.

ajr82 said...

With the exception of the Constitutional aspects that are unique to the US system, what you're proposing sounds a lot like the Canadian system, where each province has a film classification board that applies to both movies and games, and only has the power to rate, not to ban.

Fedule said...

So... I only counted nine points. What happened to number 8?

Mark Methenitis said...

Apparently I can't count. Thanks for the heads up.

yincrash said...

Quick little proofreading things.
(You can edit it then delete my post and pretend it was perfect :D)

"I would just assume leave the system be,"

I'm assuming you mean the idiom which would be, "I would just as soon leave the system be,"

"The only industry without a rating system is the print industry (books, graphic novels, etc.), and I'm not sure any legislator is as worried about them as books, movies, or TV."

The second "books" was supposed to be "games"?

I think your proposal would be acceptable to pass Congress if someone drafted it, however I would prefer the stick the the self-regulation. :D

Mark Methenitis said...

Thanks, I'm not always the best at proof-reading my own work. That's why I have an editor at Joystiq.

Cynicalll said...

This approach seems somewhat similar to the approach we have in the UK, where most (soon all) games are rated using the BBFC film ratings scheme, which is widely understood and recognised, and carries legal weight (rather than being merely advisory).

Using this rating system across the board makes the jobs of parents and shop assistance a lot easier and straightforward concerning underage gamers, especially as it sometimes seemed a little random as to which games received legally binding BBFC ratings and which received "advisory" PEGI ratings(which most parent can and do ignore). For example, Rainbow Six Vegas 2 received an advisory 16+ rating, despite constant F-bombs and bloody violence throughout.

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Johng said...

Pretty sure that you still hit up against 1st Amendment problems even if you try to shroud yourself with commerce. No matter what justification is given, the law will be judging speech based on content and will still have to jump through the same hurdles as one specifically targeting obscenity or harm to children.

illspirit said...

Using movie ratings and explicit lyric stickers on CDs as law has been tried and failed a number of times. I was about to google up some cites, but then found this old opinion by a Tennessee Attorney General.

Granted, the cited cases were resolved in State supreme courts, but a few of them have been cited by Federal judges as good precedent.

GriceTurrble said...
This comment has been removed by the author.
GriceTurrble said...

Saw a recent article on GamePolitics saying that the Minnesota law that would somehow impose a fine on consumers could be heading to the US Supreme Court.

I know it's not really the same thing as the kind of regulation you're thinking of, but this could get very interesting.