FTC Seeks Comments on COPPA

In light of continued rapid changes in technology, the FTC CID attorneys recently announced that it is actively seeking comments on the effectiveness of the amendments the FTC made to the Children’s Online Privacy Protection Rule in 2013 and whether additional changes are needed.

The revised Children’s Online Privacy Protection Rule gives parents greater control over the online collection of their children’s personal information. The revised COPPA rule addresses changes in the way children use and access the Internet, including the increased use of mobile devices and social networking. The modified rule, approved by the Commission in December 2012, widened the definition of children’s personal information to include persistent identifiers such as cookies that track a child’s activity online, as well as geolocation information, photos, videos and audio recordings.

The COPPA rule was mandated when Congress passed the Children’s Online Privacy Protection Act of 1998.

It requires that operators of websites or online services that are either directed to children under 13 or have actual knowledge that they are collecting personal information from children under 13 give notice to parents and get their verifiable consent before collecting, using, or disclosing such personal information, and keep secure the information they collect from children.

To coincide with the amended COPPA rule taking effect, FTC attorneys also continued five “safe harbor” programs, whose guidelines reflect the modified rule. Under COPPA, safe harbor status allows certain organizations to create comprehensive self-compliance programs for their members. Companies that participate in a COPPA safe harbor program are generally subject to the review and disciplinary procedures provided in the safe harbor’s guidelines in lieu of formal FTC investigation and law enforcement.

The FTC’s compliance plan for businesses contains a six-step process for companies to determine if they are covered by COPPA, and what steps they are required to take to protect children’s privacy.

In a notice to be published shortly in the Federal Register, the FTC is seeking comment on a wide range of issues related to the COPPA Rule. In addition, the FTC will hold a public workshop on October 7, 2019 to examine the COPPA Rule.

“In light of rapid technological changes that impact the online children’s marketplace, we must ensure COPPA remains effective,” said FTC Chairman Joe Simons. “We’re committed to strong COPPA enforcement, as well as industry outreach and a COPPA business hotline to foster a high level of COPPA compliance. But we also need to regularly revisit and, if warranted, update the Rule.”

The FTC typically reviews its rules every 10 years. Rapid changes in technology, including the expanded use of education technology, reinforce the need to re-examine the COPPA Rule at this time. In addition to standard questions about the effectiveness of the COPPA Rule and whether it should be retained or modified, the FTC is seeking comment on all major provisions of the COPPA Rule, including its definitions, notice and parental consent requirements, exceptions to verifiable parental consent, and safe harbor provision.

The Commission is also seeking comment on whether the 2013 revisions to the Rule have resulted in stronger protections for children and greater parental control over the collection of personal information from children, as well as whether these changes have had any negative consequences.

Specific questions on which the FTC is seeking comment include:

  • Has the Rule affected the availability of websites or online services directed to children?
  • Does the Rule correctly articulate the factors to consider in determining whether a website or online service is directed to children, or should additional factors be considered? For example, should the Rule be amended to better address websites and online services that may not include traditionally child-oriented activities, but have large numbers of child users?
  • What are the implications for COPPA enforcement raised by technologies such as interactive television, interactive gaming, or other similar interactive media?
  • Should the Commission consider a specific exception to parental consent for the use of education technology in schools?
  • Should the Commission modify the Rule to encourage general audience platforms to identify and police child-directed content uploaded by third parties?

Comments on the Commission’s review of the COPPA Rule will be welcomed for 90 days after the notice is published in the Federal Register.

Contact experienced FTC CID attorneys if you are the subject of a government agency investigation or enforcement action.

Richard B. Newman is an industry leading FTC attorneys at Hinch Newman LLP. Follow FTC attorneys on Twitter or at FTCDefenseLawyer.com.

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