FTC in Ongoing Review of COPPA

As we had first mentioned in April 2010 after our ABA Roundtable on Social Media Law, the FTC is conducting a review of its rules under the Children's Online Privacy Protection Act of 1998 ("COPPA"), to determine whether changes to technology since its adoption warrant changes to the rule. Under COPPA and the FTC's rules, Web sites may not knowingly collect personally identifiable information from children under the age of 13 without verifiable parental consent.

Since the adoption of the FTC's rules, the expansion of communication technologies (to "mobile communications, interactive television, interactive gaming, and similar activities," as the request for comments states) and increased adoption of such technologies by children (many of whom now regularly carry and use smartphones) have raised concerns about whether the COPPA rules give sufficient guidance to both parents and companies seeking to comply with them. The issues include both practical (how to request and receive verifiable parental consent) and technical (is a textwmessage considered a "website"), and the overall concerns about how best to preserve children's privacy while enabling companies to communicate with (and market to) them.

Since issuing the call for comments (which was extended through July 12), the FTC has received at least 70, from various individuals and groups (including the Promotion Marketing Association, the Mobile Marketing Association, and the Direct Marketing Association). It also hosted a COPPA Rule Review Roundtable in June 2010, for which both a Webcast and an official transcript are now available.

For now, it is unclear whether the FTC will take any action to revise its COPPA rules following these comments and discussions. The attorneys in the privacy practice of Olshan will keep you informed of any new developments and requirements that may arise.

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