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FTC Proposes Major Amendments to COPPA Regulations Comments due November 28,
2011
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The Federal Trade
Commission recently proposed several significant amendments to regulations
implementing the Children’s Online Privacy Protection Act of 1998 (COPPA)
that may impact radio, television and other media companies. COPPA
generally prohibits the online collection of personal information from
children under the age of 13 without verifiable parental consent. The
FTC’s regulations also impose requirements on website or online services
directed to children under the age of 13, and on operators of general
audience websites or services that have actual knowledge that they are
collecting personal information from children. The proposed amendments
are a result of the FTC’s review of its COPPA rules, which recognized
advances in technology, the proliferation of internet-based mobile devices,
and the increased use of Facebook and other social networking platforms by
children. The proposed amendments
affirm that COPPA applies to websites, online services, and internet-based
mobile applications and devices. Several of the proposed changes, if
adopted, will affect the development and use of mobile applications and
services, as well as the implementation of online targeted or behavioral
advertising. For example, the FTC proposes to modify the definition of
“personal information” subject to COPPA to include persistent identifiers
such as an Internet Protocol address, cookies, a processor or device serial
number, unique device IDs, and any “identifier that links the activities of a
child across different websites or online services.” These would be
considered stand-alone categories of personal information, even though not
linked to other identifying or contact information such as a name or email
address, unless used solely for the maintenance of website or online service
technical functionality. The FTC is concerned that such information
could be used to contact the child associated with it. Additional
proposed stand-alone categories of personal information that could be used to
identify or contact a child include a user’s screen name (unless solely used
for internal operations) and geolocation information. Most smartphone
devices and apps have geolocation tracking capacity as part of the operating
technology. Photographs, video, or
audio files of a child’s image or voice are currently defined as personal
information only when they are combined with other information that permits
physical or online contacting of a child, such as an email or postal
address. However, the FTC recognized that photos may contain embedded
geolocation data and that recent online technology allows for facial
recognition in photos and videos, thus creating increased privacy risks for
minors. Therefore, the FTC has proposed to expand the definition of
personal information to also encompass photos, video, and audio files posted
by a child that include a child’s image or voice. Expanding the
definition in this manner would have ramifications for a radio or TV
station’s website or social networking platform such as Facebook, and could affect
station contests or promotions that are targeted to children and involve the
posting of photos and videos. In addition, the FTC has
proposed to expand the definition of “collects or collection” to cover the
online collection of personal information not only when an operator expressly
requests such information, but also when the operator merely prompts or
encourages a child’s submission of such information. The proposed
amendments also expand the definition of websites or online services “directed
to children” to include musical content, child celebrities, and celebrities
who appeal to children among the various indicia of child-directed
content. The current definition is based on a “totality of
circumstances” test, which also includes factors such as audience
composition, the presence of animated characters, or prizes that appeal to
children. The FTC also proposes new
mechanisms for securing verifiable parental consent and the elimination of
one current form of securing consent from a parent prior to the collection of
any information from a child. At present, parental consent is
verifiable on a sliding scale subject to how a website operator or online
service provider will use information collected, and whether the child’s
information is disclosed to the public or a third party. The FTC
proposes to eliminate the “email plus” form of consent, in which a parent
receives an email notice from the operator (plus an additional verification
step, such as a follow-up email) seeking consent to collect the child’s personal
information for internal purposes only. The FTC found that email plus
has become less reliable in verifying a parent’s identity. The proposed
new forms of verifiable consent include scanned versions of signed parental
consent forms, the use of video conferencing, and the collection of some form
of government-issued identification (such as driver’s license number or the
last four digits of a parent’s social security number), with adequate
security measures. If you would like to file
comments with respect to the proposed amendments by the November 28,
2011 deadline, or have any other questions about the amendments or compliance
with COPPA in general, please contact S. Jenell Trigg at strigg@lermansenter.com, or
202.416.1090, or any other attorney in our office. October 31,
2011 |
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This memorandum is intended only as a general discussion of these issues and should not be regarded as legal advice. We would be pleased to provide additional details or advice about specific situations if desired. Copyright © 2011, Lerman Senter PLLC 2000 K Street NW,
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