Rep. Edward Markey (D-MA) is considering legislation that would require closed captioning and video descriptions for video streamed on the Internet.  The legislation, currently known in draft form as the ""Twenty-First Century Communications and Video Accessibility Act of 2008"" would essentially impose the same closed captioning on major video providers apply to television stations, while at the same time making video descriptions of broadcast television programs mandatory.  The bill is a response to the growing segment of the population that watches video clips on websites such as YouTube or full television programs on sites such as or (the Pew Internet and American Life Project estimates this number to be at about 50 percent of Internet users in the United States).  Some programs and networks caption these Internet streams, but others do not.

While an admirable attempt, the legislation has, in our mind, many flaws.  The first is the obvious constitutional question.  While broadcaster have traditionally been subject to some regulation due to the "scarcity" and "pervasiveness" of the medium, the Internet has been classified by the United States Supreme Court as the perhaps the freest medium of expression in existence – deserving of even more First Amendment protection than even newspapers.  It is hard to conceive of a regulation that mandates

speech in this way surviving constitutional scrutiny.  Another problem raised by several parties is technical in nature.  Again, unlike, broadcast television, there is no single technology by which Internet video is delivered. If a broadcaster finds it is even possible to automatically convert captions from a television program to the Internet stream (not always a guaranteed proposition because many programs are condensed on the Internet, with commercials removed), viewers use different programming formats to receive the stream.  Captions prepared for delivery via Internet Explorer may not be readable in Linux.  Work to solve this problem and create a single format for captioning is ongoing but still some time away.  Finally, there is the further concern that captions would be unreadable on smaller computer screens, let alone iPods, iPhones or other mobile phones to which the law would apply.

Rep. Markey held hearings in the House Subcommittee on Telecommunications and the Internet, of which he is Chair, earlier this month.  No bill has been introduced, nor have further hearings been scheduled but we’ll keep you posted.