A vocal critic of proposed changes to rules implementing a 1998 law aimed at protecting children online warned on Thursday that the Federal Trade Commission could open itself to a legal challenge if it follows through with the regulatory amendments. Others attending a forum on the rules predicted that the modifications could end up curtailing the availability of content aimed at children.
During a forum sponsored by the Information Technology and Innovation Foundation on the Children’s Online Privacy Protection Act, TechFreedom President Berin Szoka predicted that the FTC will face a legal challenge—which his group would support—if the commission moves forward with its proposed changes to the regulations. COPPA bars websites aimed at children from collecting personal information from anyone under age 13 without parental consent.
Last year and again in August, the FTC proposed amendments to its rules for implementing COPPA to reflect changes in technology since the law was passed. The commission has proposed amending the rules to include content available on mobile devices like smartphones, changing the definition of personal information covered by COPPA to include persistent identifiers such as Internet protocol numbers, and expanding who is covered by the law.
“There’s no reason this has to be done before this chairman leaves,” Szoka said, citing the much-rumored expectation that FTC Chairman Jon Leibowitz plans to leave his post after the November election. “The FTC should take the time next year, probably hold a workshop and discuss these things, and issue a revised rule.… If they don’t, they will be sued. And I don’t take delight in saying that.”
Szoka and others cited several issues with the proposed changes including the expansion of the definition of personal information. They argue that the inclusion of persistent identifiers could hamper the functionality and innovation of websites popular with children. At the same time, ITIF Senior Analyst Daniel Castro and others argued that many companies may choose not to target websites to children because they don’t want to try to comply with the stricter COPPA rules.
“There is a risk that if we move too fast, and I’ll use the president’s line here, were going to be saying in a year, ‘The '90s are calling and they want their websites back,’ ” Castro quipped.
Privacy advocates have praised the proposed changes, saying the rule must be updated to reflect the changing ways children access online information though mobile devices such as smartphones or even through gaming systems. Alan Simpson, vice president of policy for Common Sense Media, argued that there’s been a lot of “innovation on collecting kids’ data” and defended the FTC’s call for including IP numbers as personal information, comparing them to Social Security numbers.
“Is COPPA perfect? No, but it is working.… The rules keep parents in charge. That’s crucial and what’s also crucial is keeping COPPA up to date to reflect what’s going on in the online universe,” Simpson said.
But Association for Competitive Technology Executive Director Morgan Reed rejected Simpson’s Social Security number analogy, noting that an IP address is attached to a device and therefore does not change even if someone else uses the same machine. “A persistent identifier does not attach to a person,” he said.
The FTC is evaluating comments it received on the additional changes it proposed to the COPPA rules in August. Stakeholders said they expect the commission will release its final update to the regulations by the end of the year and possibly as soon as next month.