Yesterday, TechFreedom filed comments in response to the Federal Trade Commission’s (FTC) Notice of Proposed Rulemaking (NPRM), which proposes, among other things, to expand the test for defining which sites and services are “directed to children” under the Children’s Online Privacy Protection Act (COPPA). In making that determination, the current COPPA Rule says the FTC will consider a range of characteristics of a site or service, all of which are chosen by its operator, as indications of whether the site “targets” children. The revised rule would include, for the first time, external comparisons to things that do not directly reflect the operator’s intention about which audiences it targets: “user or third-party reviews and the age of users on similar websites or services.”

Alone among regulations aimed at protecting kids online, COPPA has dodged First Amendment challenge because Congress was careful to avoid burdening sites that serve adults, but now the FTC proposes blurring that line in ways that invite litigation on both constitutional and textual grounds,” warned Berin Szóka, President of TechFreedom. “By using the word ‘targeting,’ Congress clearly focused the law on which audience an operator intended to reach. The FTC’s 1999 COPPA rulemaking didn’t analyze the text of the COPPA statute in the way courts now expect. The FTC should do now what it should have done then: explain that an operator’s targeting intentions are paramount, that evidence of audience composition is relevant only indirectly as evidence of that intention, and that an operator’s intention may be assessed objectively through the characteristics of a site or service. That would more clearly ground the existing rule in textualist terms, and also justify some, but not all, of what the FTC now proposes, such as how an operator represents its audience to others, such as advertisers.”

The proposed rule strays too far from the text of COPPA when it proposes factors that are entirely external to a site or service, which may allow only attenuated inferences about the audiences an operator intended to reach,” continued Szóka. “The existing rule already allows the FTC to consider ‘competent and reliable empirical evidence regarding audience composition.’ Conceivably, that might sometimes include the two factors the FTC now proposes to add: ‘user or third-party reviews and the age of users on similar websites or services.’ The FTC hasn’t shown that these are generally reliable measures of an operator’s targeting intention, but it can always do so on a case-by-case basis.” 

“The NPRM doesn’t define what a ‘similar’ website or service is,” Szóka concluded. “Nor does it provide any analytical framework as to how the FTC will decide whether two websites or services are ‘similar.’ As commenters have pointed out, virtually all computer games are built using computer generated graphics, in once sense making LEGO 2k Drive similar to Grand Theft Auto V. Cartoons also run the gamut, from clearly child-directed cartoons such as Dora the Explorer, to adult-directed cartoons such as Family Guy, and South Park. Without further clarification of how the FTC will analyze the similarity between website and services, this standard will become nothing more than ‘I’ll know it when I see it,’ thus leaving websites and developers at the whim of future enforcers.”


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