The Law on Games

In the Long Run, a Federal Crime?

The most significant legislative proposal yet is one championed by US Senators Clinton and Lieberman, called the Family Entertainment Protection Act (FEPA). If passed, this national bill would federally adopt the ESRB rating system and prohibit the sales of M, AO and Rating Pending titles to those under 17. Penalties would include fines ($1,000 and $5,000) and community service.

More crucially, FEPA would establish an independent review to guard against "ratings creep." The review would evaluate ESRB ratings over time in an attempt to ensure they were consistently applied. Finally, FEPA would provide authority for the Federal Trade Commission to evaluate games containing "embedded content" inconsistent with the published rating. In other words, Grand Theft Auto: San Andreas and "Hot Coffee." Penalties for embedded, inconsistent code would fall under the authority to regulate "deceptive acts or practices in or affecting commerce" as specified in the Federal Trade Commission Act.

As it turns out, Grand Theft Auto and publishers Rockstar and Take-Two got off easy this week when the FTC allowed what amounts to a slap on the wrist to go forward; Take-Two will not be fined for the "Hot Coffee" embedded code. FEPA would make such an outcome unlikely in the future.

Editors of newspapers and the games press claim that all efforts seen thus far amount to little more than posturing. Newspaper editorials in Louisiana and Oregon have castigated legislation efforts as futile and self-glorifying. In a Shreveport Times op-ed, psychiatrist Dr. Jerald Block called video game laws "sheer lunacy." They cite data suggesting the negative impact of violent media is countered by figures proclaiming a significant drop in youth crime since the mid-'90s.

Mark Shurtleff Border Patrol

Through blogs and interviews, the games industry has also spoken out against legislation. The excellent GamePolitics Web site maintains a running account of each state's efforts, and Ted Price, CEO of Insomniac Games (Ratchet and Clank) has filed affidavits in Louisiana and Minnesota in support of the industry.

Seeking to avoid new laws, editors and some politicians have fallen back on a more practical line of advice: parents must be more attentive to their children's' entertainment. Mark Shurtleff, Attorney General for the state of Utah, agrees. He's begun a campaign with the ESRB to promote parental awareness and involvement, primarily though a series of televised PSAs.

When asked if legislation is simply an easy answer for lawmakers eager to respond positively to parent concerns, Shurtleff was succinct. "Legislation is a popular thing to do, and an easy answer, even if the legislation is bound to fail under judicial scrutiny. We can tell them we'll be in litigation for three years, and they say they don't care."

Furthermore, amid every discussion of video game legislation to date, there's an elephant in the room: enforcement. That's been a sticking point of every similar movement to regulate entertainment such as comic books and movies. If the money spent in enacting legislation is to be spent well, enforcement is key. What shape would enforcement take? To date, no viable solutions have been proposed.

When queried on that end of the law, AG Shurtleff replied, "Enforcement becomes very difficult; we currently spend large amounts of money trying to enforce laws controlling youth access to alcohol, and to add another layer to those efforts and that spending would be very complicated."