The Future of the Children’s Online Privacy Protection Act
Given the reality of near-constant connectivity through computers, tablets, phones, and other Internet-enabled devices, regulators and legislators are increasingly concerned about the online collection of children’s information.
Recent FTC Enforcement
Following its largest-ever COPPA fine earlier this year—a $5.7 million civil penalty levied against mobile application Musical.ly (now TikTok) for knowingly collecting personal information such as names, email addresses, and phone numbers from children under 13 without obtaining parental consent—the FTC appears poised to announce another COPPA-related settlement after an investigation into YouTube’s privacy practices.
In late July, The Washington Post reported the FTC finalized a settlement with Google regarding COPPA violations related to YouTube and that the settlement is now before the DOJ for review. According to the report, the rumored settlement is split along party lines, with the three Republican commissioners in favor and the two Democrats opposed. The settlement is based on allegations that YouTube appealed to children and allowed children to create accounts or use accounts of others, resulting (according to the allegations) in the collection of children’s personal information such as location, device identifiers, and telephone numbers, which YouTube then used for targeted advertising, without obtaining parental consent.
The amount of the settlement remains unreported but is likely to meet criticism from privacy advocates calling for more stringent enforcement of COPPA and more severe penalties for companies found to have committed violations. The Campaign for a Commercial-Free Childhood and the Center for Digital Democracy, which are represented by the Institute for Public Representation at Georgetown Law, have filed requests to investigate with the FTC. These organizations have called for the FTC to seek a 20-year consent decree with various requirements and to impose the maximum civil penalties ($42,530 per violation – either per child or per day).
Watch this Space
The FTC’s recent COPPA enforcement actions are accompanied by calls for updates to the U.S. regulatory framework for children’s personal information on the Internet.
The last review of COPPA took place six years ago in 2013. Recently, the FTC released a Request for Comment, explaining the commission is “conducting its ten-year review early because of questions that have arisen about the Rule’s application to the educational technology sector, to voice-enabled connected devices, and to general audience platforms that host third-party child-directed content.” The FTC is also soliciting more general comments and will host a public workshop for discussion of the COPPA Rule on October 7, 2019.
Activity in the Senate
On Capitol Hill, senators have proposed various draft bills to supplement or update COPPA. One such draft bill is the Do Not Track Kids Act (S. 2932), which was introduced by Senators Edward Markey (the original drafter of COPPA) and Richard Blumenthal. The bill, which has been introduced in different iterations several times since 2015, is now before the Committee on Commerce, Science, and Transportation. The draft bill would expand COPPA’s coverage from children under 13 to children under 15.
Senator Markey along with Senator Josh Hawley have introduced a bill (S. 748) that would amend COPPA to incentivize operators of websites and online services to adopt a “Digital Marketing Bill of Rights for Minors” consistent with enumerated Fair Information Practices Principles. Yet another draft bill is the Clean Slate for Kids Online Act (S. 783), introduced by Senator Dick Durbin, which would amend COPPA “to give Americans the option to delete personal information collected by internet operators as a result of the person’s internet activity prior to age 13.”
Witnesses Express Concern Over Child Exploitation Online
The draft bills demonstrate a growing concern in the Senate related to children’s online privacy. Indeed, just a few weeks ago on July 9, 2019, the Senate Judiciary Committee held a hearing on “Protecting Innocence in a Digital World.” Witnesses, including the incoming president of the National District Attorneys Association and the president of the National Center for Missing and Exploited Children, expressed concern regarding the targeting and exploitation of children on the Internet.
Some of the witnesses expressed frustration regarding the limitations of COPPA as well as the scope of its enforcement. In her written testimony, Professor Angela J. Campbell of the Communications & Technology Clinic at the Institute for Public Representation noted that COPPA was adopted prior to the advent of YouTube, social media, smartphones, smart speakers, and Internet-connected toys.
Children’s online privacy may yet prove a bipartisan issue in the Senate. Regardless, summer is no time to take a break for those monitoring for COPPA enforcement announcements and watching for the outcome of the COPPA request for comment process.