Industry trade groups have objected to various aspects of proposals by the Federal Trade Commission to make changes to the Children's Online Privacy Protection Act (COPPA) Rule. The Promotional Marketing Association (PMA) filed comments, co-authored by Edwards Wildman's Alan Friel, that among other things argue that the FTC should:

  • revise how it proposes to define and treat “operators” and “website or online service directed to children”,
  • permit mixed audience sites to age screen users and apply the COPPA-mandated protections only to those who self-identify as children under 13, as opposed to all users of the site; however, it should not force that obligation on general audience sites that are not directed to children if they have “child-oriented content appealing to a mixed audience, where children under 13 are likely to be an over-represented group.”
  • modify its proposal to treat persistent identifiers used to recognize a user over time or across sites as personal information,
  • better clarify that the “support for internal operations” exception explicitly excludes from coverage the use of persistent identifiers for internal activities,
  • expand the types of activities to be included in the “support for internal operations” exception, and
  • modify its proposal to treat user names and screen names as personal information only if that identifier is associated with functionality that permits the person to be contacted online.

It also objected to recently filed comments by the Center for Digital Democracy and other advocacy groups that argue the FTC should go further than proposed to regulate children's privacy and advertising. Finally, PMA reinforced its previously filed comments that the PMA urges retention of E-Mail Plus method of obtaining parental verification of consent to collection of personal information for internal purposes only and the one-time use exceptions for prize fulfillment for promotions and for send-to-friend e-card promotions; supports the proposed additional exception to verified parental consent requirements; objects to the proposal to require an online notice to list all operators rather than a single responsible operator; and objects to the proposal to include in the definition of personal information persistent identifiers, geo-location data, screen names, photos, videos and audio files, date of birth, gender and/or ZIP code. A copy of both sets of comments is available here.

Similarly, the Internet Advertising Bureau (IAB) filed comments criticizing the FTC's proposed treatment of persistent identifiers (e.g., IP address and device identifiers) as personal information and to require verified parental consent before collecting such data other than for certain narrow operational uses, which would exclude targeted advertising. The IAB also objected to the FTC's proposal to hold advertising networks and other third parties interacting with web sites and apps and collecting users' persistent identifiers, as is done commonly to effect online and mobile advertising, if they have "reason to know"the site or app targets children.

The Toy Industry Association (TIA) also had numerous criticisms of both the FTC's original and supplemental proposed rule changes. Like the IAB and PMA, it objected to the proposed expansion of the definition of the term operator to include third parties that interact with sites and apps. As did the PMA, the TIA supported the concept of allowing sites that wanted to be treated as mixed audience sites to age gate all users and treat children and adults differently, but objected to imposing the obligation to do so on sites based on some sort of demographic traffic standards. Like the PMA, the ITA urged greater expansion of the definition of the internal operations exception for collection and use of persistent or device identifiers and reiterated objections to the expansion of treatment of screen names, photos and other new information as regulated "personal information" and urged retention of the one time use exception for "send-to-friend" e-mails. The TIA also submitted information suggesting that the FTC's changes would result in an undue and significant financial burden for site and app operators, far in excess of what the FTC has projected. The TIA's comments are available here.

For more information on challenges to web site and app operators, and the online and mobile advertising ecosystem, that the proposed rule changes present, see our prior commentary here and here.