As children's activities on the Internet have expanded, many states and the federal government have enacted legislation to regulate such activities and other "smart" children’s products—products that collect, transmit or store electronic data. One such law, the Children’s Online Privacy Protection Act (COPPA), was enacted by Congress with the goal of giving parents the ability to know about, understand, consent to, and monitor the type of information collected from their children online. Specifically, COPPA prohibits certain operators of websites and online services from collecting, using, or disclosing personal information from children under the age of 13 without first obtaining verifiable parental consent. The Federal Trade Commission (FTC) promulgated regulations, known as the COPPA Rule (the Rule), to implement and enforce the provisions of COPPA.
Recognizing an increase in the number and type of smart children’s products, we previously published guidance on data privacy compliance as it relates to smart children’s products, including an article discussing the interplay of federal and state data privacy laws and smart children’s products and, as relevant to this update, an article exploring the applicability of COPPA to mobile apps.
As we noted in our article regarding the applicability of COPPA to mobile apps, the FTC, through its many enforcement actions and other published guidance, has signaled its commitment to enforcing COPPA and ensuring the protection of children’s data privacy online.
Multiple companies subject to COPPA took notice of the FTC's eye towards enforcement, and in an effort to ensure their compliance with the Rule, requested that the FTC exempt the collection of audio files from COPPA's verifiable parental consent requirement under certain circumstances. In response, the FTC recently published additional guidance to clarify its position on the applicability of COPPA to the collection and use of voice recordings.
COPPA and Voice Recordings
Under COPPA, audio files that contain a child’s voice are considered "personal information," the collection, use and disclosure of which first requires direct notice to and verifiable consent from parents. So long as the information collected is "personal information" as defined by the Rule, operators must provide parents direct notice and obtain consent before collecting such information from children under the age of 13. Except for certain limited exceptions, the Rule does not differentiate among the various purposes for the collection, use or disclosure of personal information. Thus, the collection of an audio file from a child under the age of 13, even when the voice is being used solely as a replacement for written words (e.g., to convert voice to text in order to perform a search), would technically require verifiable parental consent.
The problem noted by many companies, and now recognized by the FTC, is the use of an audio file containing a child's voice may serve valuable functions that would otherwise be limited by strict enforcement of the requirement to obtain verifiable parental consent before collection. For example, verbal commands may be a necessity for certain children who are unable to write or are disabled.
COPPA and Interconnected Apps
In light of the new guidance and the recent VTech enforcement action, companies should make sure that their COPPA compliance program evaluates the purpose, storage and use of collected information. Those evaluations should be used to develop verifiable parental consent mechanisms that apply to all connected technologies that can be used to collect information from children under the age of 13, including websites, mobile apps and toys that use the Internet to collect and transmit information.