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June 19, 2012

The (Overly) Social Network? Congressmen Wary of Facebook for Kids

Seller Beware: Consumer Protection Insights for Industry

Facebook's recent announcement that it is considering opening its social networking site to children under the age of 13 has triggered scrutiny from Members of Congress as well as causing concern among privacy advocates. In a letter to Facebook CEO Mark Zuckerberg, Congressmen Edward Markey (D-Mass.) and Joe Barton (R-Texas), co-chairs of the Bi-Partisan Congressional Privacy Caucus, questioned whether the company would have adequate procedures to ensure compliance with the Children's Online Privacy Protection Act (COPPA), which requires companies to obtain "verifiable parental consent" before collecting personal information from children under 13. The letter specifically requests details about Facebook's plans to comply with the law, and asks that Facebook provide that information and responses to a series of related questions by June 25, 2012.

Facebook reportedly has been developing technology to allow children under 13 to use its site with parental supervision, possibly by connecting children's accounts to their parents' and by giving parents control over their children's friends and applications. That would appear to be consistent with COPPA, but the FTC is currently reworking its COPPA regulations and it is unclear that Facebook's planned methodologies would comply with the revised regulations the FTC plans to issue later this year. In September, the FTC proposed changes to the COPPA rules that included expanding the definition of personal information to include IP addresses, photos and videos; broadening the definition of "collection" to include "prompting, or encouraging" children to submit personal information; and eliminating the "email plus" method of obtaining verifiable parental consent.

So Facebook needs to be forward-thinking as it proceeds with its apparent plan to allow children under 13 to use its site. Each step in its implementation of such a plan will likely be watched by policymakers and privacy advocates, as indicated by Congressmen Markey's and Barton's recent letter to Mr. Zuckerberg. Particularly because, as noted in that letter, Facebook only recently settled FTC claims that it had deceived users about its privacy protections, there will be continued skepticism and concern about how trustworthy Facebook's privacy policies can be.

Facebook is certainly not the only target of concern about protection of children's privacy in the context of social media sites, however. As Congresswoman Mary Bono Mack (R-Calif.), chairman of the House subcommittee on online privacy, recently admonished: "Very strict privacy protocols must be in place before younger children are allowed on social networking sites." Indeed, just last November, the FTC entered into a consent decree with Skid-e-kids, a children's social networking site, for alleged COPPA violations. And last May, the FTC reached a $3 million COPPA settlement with Playdom, an operator of online social games, which remains the largest civil penalty assessed for a COPPA violation.

Regulators have also been cracking down on mobile apps directed at children. Last week, the New Jersey Division of Consumer Affairs sued 24x7digital, a developer of educational mobile apps, for violating COPPA by collecting children's names, pictures and device identity numbers and transmitting them to third parties without parental notification and consent. In August, the FTC reached a $50,000 COPPA settlement with mobile app developer w3 Innovations.

In addition to the FTC through its forthcoming revisions to the COPPA regulations, new restrictions are anticipated from Congress. Last May, Congressmen Markey and Barton introduced the "Do Not Track Kids Act of 2011," H.R.1895, which would extend COPPA's coverage to anyone under 18 and prohibit collecting minors' personal data for targeted marketing. Facebook is therefore acting in a climate of evolving and uncertain regulatory action. It will need to be both proactive and prescient in considering the benefits and risks, and in taking steps to mitigate risks, of any methodologies it adopts with respect to use of its site by minors.

© Arnold & Porter Kaye Scholer LLP 2012 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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