The FTC has issued new COPPA regulations to go into effect this summer. If anything, the new rules are worse than the previous, much criticized set on the books. This begs the question, “Is COPPA unnecessarily stringent?”
COPPA is an abbreviation for the Children’s Online Privacy Protection Act of 1998. The law falls into the category of those designed to “protect the poor innocent children” from the horrors of the world.
Don’t get me wrong. There are plenty of horrors out there, and we should protect children from them. The problem is COPPA doesn’t accomplish this goal at all.
The FTC enforces COPPA. The new regulations issued by the Commission include a bevy of restrictions detailing when advertisers must first get permission from parents prior to tracking, accessing or using the data of children’s activities online.
So…we are worried advertisers are going to do what exactly with kids? Molest them? Sell them a car? What?
The First Amendment gives each of us the right to free speech. This constitutional right includes both the right to speak out and the right to access certain information such as books, websites and the like.
COPPA is so onerous that most sites comply with it by doing an interesting thing. They close off their site to kids under 13, the cutoff age for COPPA. Put another way, a government regulation is effectively prohibiting the free speech rights of children. There is no age restriction on the First Amendment, and the government has far overreached its rights with COPPA.
I’m not the only one who thinks this is the case. Facebook has over a billion users. How many of those members do you think are kids under the age of 13? A lot. Does Facebook comply with COPPA? No. It simply includes a statement in its terms and conditions telling users they must be over 13 as if that is going to stop a child from signing up.
Fortune Magazine investigated this issue. In his article for the publication, Michal Lev-Ram reported:
Zuckerberg said he wants younger kids to be allowed on social networking sites like Facebook. Currently, the Children’s Online Privacy Protection Act (COPPA) mandates that websites that collect information about users (like Facebook does) aren’t allowed to sign on anyone under the age of 13. But Zuckerberg is determined to change this.
“That will be a fight we take on at some point,” he said. “My philosophy is that for education you need to start at a really, really young age.”
Facebook has backtracked from this position a bit on occasion. It is my hope and the hope of others that Facebook will challenge the law. Why? The company has the financial deep pockets to take on the government. The process could take years and millions of dollars in legal fees to see through. Facebook has the resources for the battle.
Should we move to protect children online? Yes. Is COPPA the best approach? Not a chance. To understand the foibles of this law, just consider how out of touch the legislation and regulations are with reality.
Let’s assume a new television show aimed at kids from 5 to 10 comes out and becomes insanely popular. The show starts a website. Under COPPA, when a child signs up for the site, the parents of the child must be notified. The parents can then consent to the collection of information by the site or terminate the account.
How does this parental verification occur? There are a number of ways. Let’s look at a standard approach and the weaknesses of it. This method involves requiring the child to provide an email address for their parent when they sign up. The site will then forward a notice regarding the child signing up for the site as well as an authorization form the parent must sign and return with a copy of their driver’s license.
Okay, let’s start with the simplest problem with this approach. If some random site sent you a notice about your child signing up and then asked you to sign an authorization and send a copy of your driver’s license, what would your response be in this age of identity theft? Hell no!
Let’s assume the parent doesn’t approve. What is to stop the child from faking a signature on the form and making a copy of a driver’s license? While a 5-year-old probably isn’t going to do this, how about an 11-year-old?
Small Business Crusher
Then we need to consider the impact COPPA has on small businesses. Yes, Facebook has the money to deal with COPPA whether it be fighting it or complying with it. 99.9 percent of sites facing a COPPA issue are not flush with cash. In fact, most are just starting out. COPPA represents both an enormous administrative and financial burden for these companies and more than a few abandon their business approach given the difficulties associated with COPPA compliance.
This is a positive impact?
COPPA is a disaster. Congress created the law without an understanding of the difficulties business face online. Perhaps worse, the law is enforced by others in the FTC, who seem to either not understand the burden their regulations place on websites or just don’t care. Sadly, COPPA seems here to stay for the time being.
Richard A. Chapo, Esq.
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