How does the Children’s Online Privacy Protection Act (COPPA) interact with state law privacy protections for teens?

According to amicus briefs filed by both the Federal Trade Commission and California Attorney General Kamala Harris, state law plays an important role in protecting minors aged 13 to 18, and is not preempted by COPPA.

The regulators weighed in on the issue by filing amicus briefs in a class action against Facebook that had reached a settlement. The Facebook suit stemmed from allegations that the social networking site violated the privacy rights of minor users with its “Sponsored Stories” feature, where users’ names and images were allegedly used for advertising purposes without their consent.

Although a federal district court judge signed off on the deal, some class members objected, arguing that the settlement does not bar conduct that allegedly violates various California state laws. The settlement would not ensure compliance with California Civil Code Section 3344, which requires parental consent for the use of images of minors under 18. The district court judge ruled, however, that COPPA “may well” preempt state privacy laws not just for those under age 13 but all minors up to age 18.

The FTC and Harris unequivocally disagreed with the district court’s finding.

The Court of Appeals for the Ninth Circuit is currently reviewing the $20 million settlement agreement between the parties.

“Nothing in COPPA’s language, structure, or legislative history indicates that Congress intended for that law to preempt state law privacy protections for people outside of COPPA’s coverage, including teenagers,” the FTC wrote.

Calling the district court’s interpretation “patently wrong,” the FTC noted that COPPA specifically defines a “child” as “an individual under the age of 13.” Therefore, COPPA’s express preemption provision for state law protections does not address the online activities of teenagers who fall outside the scope of the statute.

“COPPA was enacted in the shadow of state privacy laws – including state protections that are particular to minors – that had existed for nearly a century,” the FTC told the court.

Harris, expressing “concern” about the possible preemption of state law, voiced a similar sentiment.

“Especially when regulating in a field that has already been pervasively occupied by state law, Congress would have spoken far more plainly if it intended any broad displacement of consistent or supplementary state regulation,” she wrote. “Congress’s decision in COPPA to bar only ‘inconsistent’ state law establishes that the federal act’s provisions are intended to provide a floor, not a ceiling.”

Therefore, the court had “no basis” to depart from COPPA’s text, “which preempts only state regulation that is ‘inconsistent’ with federal law,” according to AG Harris’s brief, and “does not bar state enforcement of complementary or supplemental protections such as those provided [by California state law].”

To read the FTC’s amicus brief in Fraley v. Facebook, click here

To read the California AG’s amicus brief, click here.

Why it matters: Notably, neither Harris nor the FTC took a position on the underlying litigation or the merits of the settlement itself. Although the court may permissibly reach a decision on the settlement without addressing preemption, the regulators are concerned that if the court does consider preemption it should not hold or suggest that federal law preempts the state law protections afforded to teens.