Time to Protect Kid’s Privacy Online

By Ralph E. Stone

February 17, 2012

Privacy has become a major issue in the United States and Congress is paying attention. H.R. 1895, “The Do Not Track Kids Act,” a bi-partisan bill sponsored by U.S. Representatives Ed Markey (D-MA) and Joe Barton (D-TX), is pending in Congress. H.R. 1895 would amend the “Children’s Online Privacy Protection Act” (COPPA) by introducing additional provisions to govern the collection and use of teens’ personal information.

COPPA, effective April 21, 2000, was passed before browser cookies and other tracking technologies were being used, and doesn’t cover teens, who frequently use social networking sites like Facebook and Twitter. COPPA applies to the online collection of personal information from children under 13. COPPA spells out what a website operator must include in a privacy policy, when and how to seek verifiable consent from a parent, and what responsibilities an operator has to protect children’s privacy and safety online. COPPA is enforced by the Federal Trade Commission. The FTC has promulgated regulations to enforce COPPA. (For more information on COPPA, see the FTC’s Frequently Asked Questions about the Children’s Online Privacy Protection Rule).

H.R. 1895 takes COPPA even further by prohibiting Internet companies from collecting personal information from anyone under 13 without parental consent, and from teens without their consent, and prohibits companies from profiling kids and teens for advertising purposes. It also requires websites to have an “eraser button” to allow users to delete  information collected about kids and teens.

H.R. 1895 is motivated by sincere concerns for the collection of children and teens’ personal information online. The Act, however, could result in mandatory age verification and increased collection of personal information from all users, and thus, could infringe the rights of teenagers to access completely appropriate, lawful speech online. One change to COPPA is to the entities covered by COPPA from sites that know they are collecting information “from a [specific] child” to sites that know they collect information “from children” generally. While the amendment from “a child” to “children” seems minor, it could effectively expand COPPA to apply to most general-interest websites, rather than just websites directed at children. Although teens are known to surf the internet and visit general websites as well as those directed at children. These websites would be faced with the choice of risking violations of COPPA, or adopting a more rigorous screening system that would validate the age and identity of every user in order to obtain appropriate parental consent from child users.

Are these requirements too burdensome?

Does H.R. 1895 raise First Amendment concerns by inadvertently blocking material that is constitutionally protected by depriving children of access to information that everybody would agree they should see? Children clearly do not have the same First Amendment rights as adults, but they do have some First Amendment rights. Children’s speech rights are diminished in direct proportion to age — the younger the child, the greater degree of permissible regulation. H.R. 1895 would seem to be permissible regulation.

COPPA should not be confused with the Child Online Protection Act (COPA), enacted on October 23, 1998. COPA sought to prohibit online sites from knowingly making available to minors material deemed “harmful to minors.” Enforcement of this law was immediately subject to legal challenges under the First Amendment. In June 2004, the Supreme Court upheld a lower court injunction against the law, ruling that it was most likely unconstitutional. COPPA and the proposed amendment thereto, on the other hand, strike an appropriate balance of protecting children from marketers and sexual predators online, while allowing children to take advantage of the many benefits of the Internet.

While no privacy protection law will ever be perfect, as kids can enter fake ages when they sign up at websites, and too much protection can limit kids’ access to the good things on the internet – on balance H.R. 1895 is good step toward making kids safer online.

Let your members of Congress know how you feel about H.R. 1895, “The Do Not Track Kids Act.”

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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