Singularity Law

On September 15, 2011, the FTC announced that it is seeking public comment on proposed amendments to the Children’s Online Privacy Protection Rule, which govern the collection and use of personal information from children under the Children’s Online Privacy Protection Act (COPPA). The law was enacted in 1998 and the Rule was originally promulgated in 2000 – in the early days of the Internet.

The FTC previously reviewed the COPPA Rule in 2005 and retained it without change. In light of rapidly evolving technology and changes in the way children use and access the Internet, in 2010 the FTC initiated another review of the Rule on an accelerated schedule. On April 5, 2010, the FTC sought public comment on every aspect of the COPPA Rule, posing numerous questions for the public’s consideration. In addition, the FTC held a public roundtable and reviewed 70 comments received from industry representatives, advocacy groups, academics, technologists, and individual members of the public.

The Internet has clearly changed considerably since 2000 and it is clear that an updated Rule (if done properly) would be of enormous benefit both to parents (whose children are increasingly interacting with Internet on a daily basis) and website operators (who still seem to be unclear on how to comply with COPPA).

One of the most troublesome areas in complying with COPPA is the “verifiable parental consent” requirement. I am pleased to see that this is one area that the FTC is specifically looking at. Unfortunately, the FTC proposals appear to be increasing the burden on websites, not streamlining them as the proposal claims. The promulgation of the original Rule, with its “verifiable parental consent” requirement resulted in many child-oriented sites moving away from efforts by sites to “customize” the experience for each child-visitor, since the information required to do so fell within the strictures of COPPA. Instead, sites changed to provide the same “experience” to every child that came to them, which turned off a lot of kids.

As the number of interactive child-oriented sites decreased, many children starting exploring more adult-oriented sites that did not need to get “verifiable parental consent” as long as the site was not directed to children and the site operator did not ask for the age of the visitor. Under many lawyers’ reading of the COPPA, a Disney-sponsored site would be required to get consent to gather information from an eight year-old, but playboy.com would not. Certainly a perverse result!!

It will be interesting to see whether changes are actually made this time to the Rule, and whether those changes help or hurt websites that are directed at children.