Privacy Update: MPA Comments on Supplemental Notice of Proposed Changes to COPPA Rule
November 9, 2012
In August, the Federal Trade Commission (FTC) requested comments on a Supplemental Notice of Proposed Rulemaking (SNPRM) for COPPA, the Children’s Online Privacy Protection Act. Expanding on modifications proposed in the original (September 2011) Notice of Proposed Rulemaking, the supplemental notice, which MPA responded to on September 24, could have a number of significant impacts on magazine publishers.
In the two rulemakings, the Commission attempts to address its concern over the data collection activities of third parties on web sites directed to children through modifications to some of the underlying definitions contained within the COPPA statute. These include the terms “operator,” “personal information,” and “web site or online service directed to children.” Among the concerns MPA highlighted was how the combined effect of the proposed definition changes could significantly expand the reach of COPPA.
In modifications to the term “operator,” the Commission attempts to redefine the relationship between first and third parties by codifying that the activities of a third party are “for the benefit of” a first party. When combined with the proposal to expand the definition of personal information to include “persistent identifiers,” the mere presence of a third party on a web site could mean that a web site where a first party collects no user information could be forced to comply with COPPA. In the comments, MPA noted for the Commission that it is not the experience of MPA members that third party data collection activities are designed for the benefit of first parties, explained the burden this approach would place on first parties and their users, and argued that this approach may actually be less protective of children’s privacy.
The notice also includes a new three pronged definition of “directed to children.” Moving away from its traditional method of evaluating whether a site must comply with COPPA, for web sites that do not knowingly target children under 13, the new definition attempts to pull into COPPA’s purview any web site whose content “is likely to attract an audience that includes a disproportionately large percentage of children under age 13 as compared to the percentage of such children in the general population.” As we chronicled for the Commission, this new standard would likely capture far more sites than currently subject to COPPA. Among the particular concerns we noted for the magazine industry were the limited number of magazine media websites that measure the size of their under age 13 audience, the unreliable sample sizes, the likelihood of instances in which sites that are not targeted to children may temporarily skew younger based on content, and the likelihood that the Commission lacks the statutory authority to broaden the coverage of COPPA in this manner.
Finally, MPA noted the serious First Amendment concerns for both commercial and editorial speech. For example, measures publishers might need to take to avoid the full burden of COPPA compliance, such as age verification of a user before allowing site access, could restrict access to information and the ability for users to communicate online, an unnecessary and undesirable burden on the free flow of information.
MPA remains committed to protecting children’s privacy, and will continue to work with the FTC as they further develop COPPA and undertake other rulemakings and proceedings.