FTC seeks comment on proposed changes to COPPA – action steps

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Data Protection, Privacy and Security Alert

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The Federal Trade Commission is seeking public comments on potential changes to the Children's' Online Privacy Protection Act (COPPA) rule, which was adopted in 2000 and revised by the Commission in 2013. The FTC typically puts these rules out for comment every 10 years, which makes the timing of this rulemaking unusual.

The Request for Comments states that it is being issued 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." It explains that "[t]he online environment for children continues to evolve at a rapid pace, including, for example, the significant increase in education technology in the classroom and social media and platforms with third-party content appealing to children." Of particular interest to the FTC – and of concern to many online businesses – is whether the rule's definitions should be broadened to ensure that all "operators" of online services with substantial viewership from children under age 13 are complying with rules and protecting children and providing parents with appropriate levels of control to oversee the activities of their children on line.

The Commission's Request for Public Comments asks whether the 2013 revisions to the rule have resulted in stronger protections for children and more meaningful parental control over the collection of personal information, and whether the revisions have had any negative consequences. It also seeks comments on a long list of specific topics, including:

  • 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 site or online service is directed to kids, or should additional factors be considered? For example, should the Rule be amended to better address sites and services that may not include traditionally child-oriented activities, but have large numbers of users under 13?
  • Do technologies like interactive TV, interactive gaming, or similar technologies have specific implications under COPPA that should be addressed in the rule?
  • Should the Rule's notice requirements be changed to more clearly state that an operator's direct notice should include not just the types of personal information collected, but also how the operator intends to use the personal information that is collected? Should the Rule require the notice to include information about the categories of third parties, such as advertisers, that may make use of the information collected?
  • Should there be an exception to the parental consent requirement for education technology in schools? For example, should the FTC consider a rule allowing schools to provide consent? Further alignment with the FERPA?
  • Should the Rule be modified to encourage general audience platforms to police child-directed content uploaded by third parties?
  • Should general audience platforms with third-party, child-directed content be able to rebut the presumption that all users interacting with that content are children? If allowed to rebut this presumption, operators of general audience platforms could, in certain circumstances, collect personal information from users on their sites that they determine are age 13 or older.

While the FTC has sought general comments in these areas, it has also indicated a willingness to consider all aspects of its current rule. In particular it has inquired whether changes in technologies and other data protection laws have created areas of overlap or conflict between state and federal regulations.

Action steps

Given the upcoming effective date of the California Consumer Privacy Act in January 2020, it may make sense to seek changes to the existing rule to reduce the burdens of compliance that result from complying with inconsistent regulatory schemes.

The FTC will be holding a public workshop about the potential changes on October 7, 2019. Pre-workshop input on proposed topics or panelist requests is due by August 19, 2019. Initial comments are due by October 23, 2019.

If you would like us to make suggestions about workshop topics or participants or would like us to raise any points in comments to the FTC, please contact any of the authors.