Keypoint: Bill would expand COPPA to protect 13 to 15 year olds.

On May 11, Senators Edward J. Markey (D-Mass) and Bill Cassidy (R-La) introduced the Children and Teens’ Online Privacy Protection Act. The legislation seeks to amend the Children’s Online Privacy Protection Act (COPPA), 15 U.S.C. §§ 6501-6505, to “strengthen protections relating to the online collection, use, and disclosure of personal information of children and minors.”

Congress enacted COPPA over twenty years ago in 1998. The Federal Trade Commission published regulations in April 2000 and amended regulations in January 2013. In July 2020, the FTC published updated FAQs, but the FTC stated that the FAQs were only intended to declutter and reorganize the existing FAQs.

In a press release accompanying the release of the bill, Senators Markey and Cassidy emphasized that the amendments were needed because of the increased amount of time children and teens spend online coupled with technology companies’ tracking of these activities.

As we recently discussed, Senators introduced the “Clean Slate for Kids Online Act of 2021” at the end of April. The Act seeks to add a right to deletion to COPPA. The Markey/Cassidy bill provides a similar right in addition to many other amendments.

Below is an analysis of the proposed amendments.

Expanded Age for Consent

The bill expands COPPA’s scope by providing that online operators are prohibited from collecting personal information from “minors” without prior consent. The bill defines minors as users between the ages of 13 and 15. This expansion would not eliminate COPPA’s requirements that operators gain verifiable parental consent prior to collecting personal information from children under 13. In other words, the bill creates a new category of “minors” (13 to 15) in addition to the existing category of “children” (under 13).

Targeted Marketing

The bill prohibits targeted marketing that is directed at children under 13. The bill allows for targeted marketing directed at minors if the operator has obtained verifiable consent from the minor.

            Constructive Knowledge

COPPA applies to operators of websites or online services that are directed at children under 13 or operators of websites or online services that have “actual knowledge” that they are collecting, using, or disclosing personal information from children under 13. The bill revises the “actual knowledge” standard to a “constructive knowledge” standard. The lower standard requires operators that should reasonably know that children or minors are accessing their websites to receive verifiable parental consent for children or verifiable consent from minors prior to the collection of personal information. The bill also provides a description of situations in which a website or online services would have constructive knowledge.

Digital Marketing Bill of Rights for Minors

The bill directs the FTC to create the “Digital Marketing Bill of Rights for Minors” legislation through future rulemaking. The bill prohibits companies from collecting personal information from minors, unless the company adopts and complies with the “Digital Marketing Bill of Rights for Minors.” The bill provides that the Digital Marketing Bill should be consistent with the bill’s Fair Information Practices Principles. The bill includes the following principles: collection limitation, data quality, purpose specification, retention limitation, data disposal, security safeguards, openness, individual participation, and racial and socioeconomic profiling.

Eraser Button

The bill requires operators to implement a mechanism that allows parents and minors to erase or eliminate personal information that the website or online service collects.

Privacy Dashboard

The bill requires manufacturers of connected devices directed to children or minors to display on the packaging of the connected devices a “privacy dashboard.” The privacy dashboard must detail how personal information is collected, used, transmitted, retained, and protected.

Youth Privacy and Marketing Division at the FTC

The bill establishes the “Youth Privacy and Marketing Division” within the FTC and outlines the division’s duties. The Division is responsible for addressing the privacy of children and minors and marketing directed at children and minors.

Senators previously introduced similar legislation, but the bills died in committee.