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Tech Policy | Federal regulators eye update to rules governing kids’ privacy and the Internet
By Tony Romm and Tony Romm Senior tech policy reporter Email Bio Follow
The Federal Trade Commission cited ‘rapid technological changes’ for the effort
regulators this week began considering ways to update and potentially
expand enforcement of the country’s kids online privacy law, questioning
whether swift advances in technology have outpaced rules meant to
protect children under age 13.
The effort by the Federal Trade Commission is in its initial phases, but the agency’s reevaluation of the Children’s Online Privacy Protection Act,
or COPPA, could eventually lead to tougher enforcement of the 1998 law
against apps and websites that illegally collect personal information
from younger users.
“In light of rapid
technological changes that impact the online children’s marketplace, we
must ensure COPPA remains effective,” said FTC Chairman Joe Simons in a
the FTC’s concerns are websites, video games and other services that
aren’t explicitly marketed for children but still attract large numbers
of kids anyway. An FTC investigation into YouTube that’s now underway originated with complaints from consumer groups,
which argued the Google-owned streaming site violates COPPA through its
large number of highly popular channels featuring content for young
children, such as nursery rhymes and simplistic cartoons. YouTube says
the site is not intended for children.
prohibits companies from collecting kids’ data in most circumstances or
targeting them with personalized advertising, but the law applies only
to websites or apps that are directed at children or have “actual
knowledge” that users are under 13. Consumer and privacy groups long
have complained this has allowed YouTube, Instagram, Snapchat, Fortnite
and others to avoid the legal restrictions of COPPA, despite polling and
other evidence showing they are popular with preteens.
response, the FTC is seeking comment on how it might update its rules
for enforcing COPPA to address the potential gap. The commission also
seeks to determine if COPPA sufficiently covers newer technologies,
including smart televisions, educational technologies and interactive
games, which could include such new, massively popular titles such as
Fortnite. The issues count among the 29 questions the agency posed
for public comment in the Federal Register, the first step in what
could be more than a year of work that leads to an update in the was
COPPA is enforced.
The FTC’s five commissioners
— three Republicans and two Democrats — voted unanimously to initiate
the review, which came as a surprise to some consumer advocates but
illustrates that their complaints about the limits of COPPA have
garnered attention at the FTC.
“I can only
speculate that in trying to determine whether companies were violating
COPPA, it became clear that there were many situations where the rules
were ambiguous, did not clearly cover privacy-invasive conduct or were
simply ineffective,” said Angela Campbell, a law professor at Georgetown
University who represents a coalition of consumer advocates and privacy
groups that have filed FTC complaints about alleged COPPA violations by
several technology companies.
Mark Eichorn, an
assistant director at the FTC's Division of Privacy and Identity
Protection, said the commission has heard the "frustration from
[privacy] groups that the statute and the rule don't really account for
those sites that certainly are not directed to kids, they're not
intended to be directed to kids, but they know they have a significant
number of kids on there."
The FTC’s new efforts
to update COPPA come as lawmakers on Capitol Hill continue to push for a
legislative overhaul of the law. Legal experts say that COPPA has
limitations built into the statute that could make meaningful expansion
of its reach difficult without action from Congress.
One bill by Democratic Sen. Ed Markey (Mass.) and Republican Sen. Josh Hawley
(Missouri), for example, would expand it to cover kids up to age 15 and
also broaden the definition of covered companies to include those with
demonstrably large numbers of underaged users — even if there is not
“actual knowledge” about a particular user’s age. In a statement
Thursday, Markey said an FTC update “will not eliminate the dire need
for Congress to pass” the bill.
“But if the
Commission is truly serious about protecting young people online, it
will enforce existing protections, hold violators accountable no matter
how powerful they are, and act as a forceful check against the
ever-increasing appetite for children’s data,” he added.
Simons, the FTC has sought to step up its enforcement of kids privacy
rules. In February, the commission took aim at the social media app
Musical.ly — now known as TikTok — for allegations that it illegally
collected the names, email addresses, pictures and locations of kids
under age 13. The settlement included a $5.7 million financial penalty, a record for a COPPA violation at the FTC. TikTok is also now under investigation in the United Kingdom.
recent enforcement action involving TikTok, which is a rapidly growing
social media product in this country and throughout the world,
demonstrates our focus on new trends we’re seeing and our desire to
protect children consistent with COPPA,” said Noah Phillips, a
Republican FTC commissioner.
"My view is that
we are hearing enough from all sorts of stakeholders, and we're seeing
changes in the market," he added, "and so expedited review of this rule
When COPPA first passed, there
was no YouTube, no Facebook and no iPhone, and the commission has
struggled to keep pace with rapidly advancing technology while applying a
law more than two decades old. The FTC did extensive updating to its
rules regarding COPPA enforcement beginning in 2010, expanding several definitions of personal data to include videos, photos or voice clips.
that the FTC was considering another overhaul to COPPA prompted some
anxiety among consumer and privacy advocates, who expressed worry that
the process could lead to the weakening of enforcement or other
accommodations to technology companies.
biggest problem with COPPA is not the rules – it’s the lack of
enforcement, a problem which could be solved immediately without a
lengthy comment period and proceeding,” said Josh Golin, executive
director of the Campaign for a Commercial Free Childhood, an advocacy
group based in Boston. “In addition, many of the questions the
Commission is asking suggest they are considering loosening the rules to
the benefit of Big Tech.”