Politics & Policy

Gaming the System

Feds look to make their move.

Video gamers everywhere get a thrill out of manipulating imaginary characters with their game controllers. Sometimes, though, it seems as if politicians are just as thrilled to get their hands on the video-game industry’s regulatory controls. Since 1993, when the game Mortal Kombat was denounced in Congress by Joe Lieberman, the industry has been subject to repeated political attacks. In the wake of the Virginia Tech shootings, then, it’s hardly surprising that, as pundits and ideologues of all stripes shifted blame to their favorite targets in order to support their pet policy initiatives, video games made the list. On MSNBC’s Hardball recently, longtime video-game opponent Jack Thompson insisted that, despite roommates claiming never to have seen the killer playing games, the killings must have motivated by game playing.

 

But, like an in-game damage meter during a blistering video-game attack, the pressure was already building. Just a few days before the Virginia Tech rampage, the FTC released a report noting that the game industry’s rating system is increasingly effective, but still recommended a universal rating system and more prominent display of ratings information. And at least one congressman already had a bill dealing with game ratings in the works

Earlier this spring, Rep. Fred Upton (R., Mich.) introduced the Video Game Decency Act, a law which would give the FTC the power to oversee privately run video-game ratings systems. The law would make it illegal for video-game companies to mislead private ratings boards — specifically the Entertainment Software Ratings Board (ESRB), which currently rates most major video-game releases — in order to obtain a less restrictive rating. Anyone who’s ever seen a legislator put on his Serious Face and talk about video games before can guess that the underlying reasoning had something to with, yep, “For The Children.” The Children, of course, can’t vote, so “For The Children” usually means “For The Parents,” and in this case, Upton made that explicit. “Parents across the country will be able to breathe a sigh of relief,” he said in a statement, “as this legislation goes hand in hand with the mission of the industry’s own ratings system.”

So how does the industry actually feel about the proposed law? In an e-mailed statement, ESRB president Patricia Vance did not explicitly support or oppose the legislation (and a spokesperson for the group refused to clarify when pressed), but she pointed out that the ESRB ratings system, as it stands, is a “forceful and effective…enforcement mechanism” and that “publishers have no incentive whatsoever to withhold pertinent content from the ESRB, and those that do are subject to an extremely potent and effective enforcement regime.” Why, then, should Congress give a federal agency any additional power?

Upton’s press secretary, Sean Bonyun, says that it’s about “truth in advertising,” and argues that the bill is intended to strengthen the ratings system and “ensure that parents have accurate information,” noting that, “it’s one thing to defy the ESRB and its legal-enforcement processes. It’s another issue to defy federal authorities.”

Maybe so, but it’s also true that attacking the video-game industry has long been a favored sport amongst politicians eager to shore up their credibility with the concerned parent crowd. At the state level, at least ten laws banning the sale of certain video games to minors have been brought to life. In California, Governor Arnold Schwarzenegger, a guy who made his name hacking and slashing his enemies to a bloody pulp on the big screen, apparently didn’t want high schoolers doing digital imitations: He tried to ban the sale of violent games to minors back in 2005. Oregon is currently considering a similar law, and New York Governor Eliot Spitzer recently stated that he intends to pursue one as well. But these laws go down like a final level boss once they hit the courts. To date, not one of the dubious proposals has stood up to a court challenge.

Some lawmakers can’t even be bothered to worry about anything so insignificant as considering whether a law is constitutional. Regarding one video-game ban, Minnesota state legislator Sandy Poppas shrugged off any such responsibility, saying, “Legislators don’t worry too much about what’s constitutional. We just try to do what’s right, and we let the courts figure that out.” The recurrent bashing of the game industry tends to resemble a major league team taking on a troop of t-ballers: Politicians get to knock a couple of balls out of the park in front of parents, but the whole thing is just a show. (To be fair, Upton’s law, which does not ban the sale of any content, appears to be constitutional.)

 

The act comes in response to a recent scandal over Grand Theft Auto: San Andreas from Rockstar Games. When the game’s PC version was released, some gamers found a way to use unapproved, third-party software known as the “Hot Coffee” modification to access a closed-off game-play area which allowed players to engage in virtual sex acts. The usual suspects rose up to accuse the game developer of intentionally deceiving consumers by hiding the content. But no such thing occurred. All access to the content was removed — the official game, as released, contained no way for players to get in; only by making unauthorized modifications to the game using outside software was anyone able to access the content. Undoubtedly, it was a poor decision to remove only access to the content, but there’s no evidence that the developers intended to deceive consumers or the ratings board.

And even still, the ESRB responded by revoking the game’s original rating of Mature (M) — roughly equivalent to an R at the movies — and slapped it with an Adults Only (AO), the video-game equivalent of an NC-17. Additionally, Rockstar agreed to pull the game from shelves and release a new edition with the offending content fully removed.

All this aside, Upton’s law is redundant. The ESRB already legally requires companies to fully disclose content and imposes penalties on those who do not. Moreover, private measures make the law, which expands the FTC’s regulatory authority, unnecessary. In the wake up of the Hot Coffee brouhaha, the group instituted a new top fine of $1 million for “egregious” failure to disclose content.

Industry ratings boards like the ESRB and the MPAA ought to be free to self-police without bureaucratic meddling. And in fact, this is just what they’ve done. On Captivity, a horror film that decided to run a series of graphic ads that the MPAA had refused to approve, the movie-ratings board suspended the ratings process for four weeks — creating a sizable barrier to arranging distribution for the film. The Hot Coffee scandal itself showed that the showed that the ESRB is already effective. In her statement, ESRB president Vance noted that “the severe corrective actions we required of the game’s publisher clearly illustrate how seriously the ESRB takes its responsibility to protect consumers and the integrity of its system.”

And parents have no shortage of methods by which to control what their children see and play. As Adam Thierer of the Progress and Freedom Foundation extensively details in his paper, “Parents Have Many Tools to Combat Objectionable Media Content,” industry groups and other private organizations provide a vast array of methods for parents to block or filter media content. Rep. Upton is a parent himself, and his law is no doubt the product of good intentions. But it is folly all the same — at best, redundant, at worst, an ominous precedent for future federal involvement in privately run content-ratings systems.

Just Can’t Get Enough? Adam Thierer wrote about the Senate’s efforts to regulate video game content. Carrie Lukas wrote about Code Pink’s war on video games and other boy toys, and Jonah Goldberg wrote about blaming entertainment for violent acts.

– Peter Suderman is managing editor of National Review Online.

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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