FTC Seeks Comments on Additional Proposed Revisions to Children's Online Privacy Protection Rule

The Federal Trade Commission is publishing a Federal Register Notice seeking public comments on additional proposed modifications to the Children's Online Privacy Protection Rule. In updating the Rule to keep current with technology advances, in September 2011, the FTC issued a Notice of Proposed Rulemaking seeking comment on proposed changes to the Commission's COPPA Rule.

The Commission received 350 comments. In response to those comments and informed by its experience in enforcing and administrating the Rule, the FTC now proposes to modify certain definitions to clarify the scope of the Rule and strengthen its protections for the online collection, use, or disclosure of children's personal information. The proposed modifications to the definitions of "operator" and "website or online service directed to children" would allocate and clarify the responsibilities under COPPA when third parties such as advertising networks or downloadable software kits ("plug-ins") collect personal information from users through child-directed websites or services. The Commission proposes to state within the definition of "operator" that personal information is "collected or maintained on behalf of" an operator where it is collected in the interest of, as a representative of, or for the benefit of, the operator. This change would make clear that an operator of a child-directed site or service that chooses to integrate the services of others that collect personal information from its visitors should itself be considered a covered "operator" under the Rule.

The Commission also proposes to modify the definition of "website or online service directed to children" to:

• Clarify that a plug-in or ad network is covered by the Rule when it knows or has reason to know that it is collecting personal information through a child-directed website or online service;
• Address the reality that some websites that contain child-oriented content are appealing to both young children and others, including parents. Under the current Rule, these sites must treat all visitors as under 13 years of age. The proposed definition would allow these mixed audience websites to age-screen all visitors in order to provide COPPA's protections only to users under age 13; and,
• Clarify that those child-directed sites or services that knowingly target children under 13 as their primary audience or whose overall content is likely to attract children under age 13 as their primary audience must still treat all users as children.
• Finally, the Commission proposes to modify the Rule's definition of "personal information" to make clear that a persistent identifier will be considered personal information where it can be used to recognize a user over time, or across different sites or services, where it is used for purposes other than support for internal operations.