COPPA Rule Update’s Age-Screening Provision Could Violate First Amendment, Critics Say
The updated Children’s Online Privacy Protection Act rule could violate the First Amendment, the rule’s critics said. The update (CD Dec 20 p10), scheduled to go into effect July 1, allows a website that is considered directed to children but does “not target children as its primary audience” to screen users for age before any personal information is collected. Websites would then treat those users under 13 in accordance with COPPA. Free speech and privacy advocates are taking issue with the provision that provides age-screening as an option.
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General audience websites may feel the need to age-screen all users, critics said. “Operators in the uncertain gray areas are likely to implement age-screening mechanisms out of an abundance of caution,” Center for Democracy and Technology Policy Counsel Emma Llanso wrote in a blog post (http://bit.ly/VUER5d). “This could lead to many more sites demanding age or date-of-birth information from all users prior to allowing access to their sites,” she wrote, which could lead “to the perverse result of encouraging operators to collect more data about users in order to protect user privacy.” If, as a website operator, “you were at all uncertain” whether the site needed to comply with COPPA, “you would put up an age screen,” TechFreedom President Berin Szoka told us.
The updated rule is too similar to the 1998 Child Online Protection Act (COPA), which spent a decade in court over concerns about its constitutionality, including concerns that it violated the First Amendment by requiring certain sites to age-screen users, critics said. “Government mandates conditioning access to constitutionally protected material on the provision of personal information infringes users’ First Amendment right to access information anonymously,” Llanso wrote, citing COPA litigation as evidence.
Age verification requirements also infringe on the site operator’s rights to free speech, according to Larry Walters, a Florida-based attorney who focuses on First Amendment issues and has often represented porn companies. “The courts found that website operators should not be forced ... to implement age verification devices” on their sites, he said. Provisions like these “force the speaker to self-censor,” he said, by requiring the site operator to “alter the nature and content of its speech,” including the way advertisements interact with users. In addition to free speech concerns, Walters continued, there are “technological concerns about the ability to” screen users for age, he said. “Frankly, those concerns still exist today."
Unlike COPA, the new COPPA rule “does not require [age screening], but allows it,” FTC Senior Attorney Mamie Kresses told us, so the FTC does not think it violates the First Amendment. General audience sites do not have to screen users for age under the new rule, she continued. The age-screening option is for the “limited category” of websites that know they are directed to children under the rule but also have viewers that are not children, she said. Recognizing that “child-directed sites fall on a continuum,” the FTC wanted to provide an option for child-directed sites that also attract older viewers, including older siblings and parents, she said: “This provision should help those sites” by allowing them to be COPPA-compliant for their child users without having to get notice and consent before they collect personal information from all users, which could create “unnecessary costs."
Kresses suggested that any sites that are unsure if they would be considered as “directed to children” look at the criteria in the updated rule for websites that are subject to COPPA and utilize the resources available on the FTC’s website. Additionally, Kresses said, FTC staff members will be doing speaking engagements to help make users and operators aware of the changes and their effects.