WASHINGTON — The Federal Trade Commission last week tacitly conceded that industry players may need some more help to figure out how to avoid violating prohibitions on collecting information from children online without their parents’ permission.
The agency will soon provide online advertisers and third parties with more guidance as to what qualifies as “actual knowledge” that a website’s content is aimed at kids, a pair of FTC officials told industry representatives at a TechFreedom event here.
The commission plans to put more “meat on the bone” on the definition of “actual knowledge,” now that third parties are liable for violation of the Children’s Online Privacy Protection Act’s prohibitions on collecting personal information from kids, according to Kandi Parsons, an attorney with the FTC’s Bureau of Consumer Protection, and Maneesha Mithal, associate director of the bureau.
For one thing, Parsons said, being sent a list of child-directed URLs by a watchdog group would not suffice to establish actual knowledge, nor would inconclusive evidence — like a screen shot of a website that merely suggested child-directed content.
Mithal did not have an exact date for the release of the new guidance other than “soon.”
Industry representatives on the panel were pleased to hear about further guidance, but suggested its arrival was a little late in the process. The new rules kicked in July 1, and the FTC officials’ comments were a tacit admission that those regulations were unclear.
Lydia Parnes, an attorney with Wilson Sonsini Goodrich & Rosati and a former FTC official who now counsels clients on COPPA compliance, said that while she applauded the further guidance, there was still a great deal of ambiguity.
Online advertisers and others have argued that the ambiguity — as well as the cost of complying with the new rules — could discourage interactive content directed to kids and raises First Amendment issues about government over-regulating adult speech in an effort to protect minors. American Civil Liberties Union legislative counsel and policy adviser Gabriel Rottman raised that issue at the TechFreedom conference.
But panelist and COPPA advocate Laura Moy, staff attorney at Georgetown University Law Center’s Institute for Public Representation, wasn’t too worried that the new guidance was not out yet.
“It’s simple: if an advertiser is doing behavioral tracking and targeting on a website but doesn’t know that the website is child-directed, that advertiser is not going to be the subject of enforcement,” she told Multichannel News.
One clarification made last week was that third-party advertisers “will be protected from liability if they rely on a website’s own representation of whether or not it is child-directed,” Moy added. “We think that’s a great solution for everyone.”
The FTC will give online advertisers more info on how not to violate new kids privacy protections that have already kicked off.