As Technology Rapidly Advances, How Do We Keep the Online Privacy of Children Protected? - Fordham Intellectual Property, Media & Entertainment Law Journal
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As Technology Rapidly Advances, How Do We Keep the Online Privacy of Children Protected?

As Technology Rapidly Advances, How Do We Keep the Online Privacy of Children Protected?

Smart phones, social media and technology in general have all advanced immensely in recent years, and with this forward movement expectations about data privacy and the law regulating it, have been left behind. The controversy came to a head after pressure mounted on the Federal Trade Commission to update the Children’s Online Privacy Protection Acts of 1998 (COPPA); such proposed updates were revealed onDecember 19, 2012.

A prior proposed update to COPPA in August attempted to expand the reach of the law beyond websites to cover apps, games, and other such advertising vehicles. The newest proposed expansions are expected to go beyond that to cover photos, videos, and location data, in an attempt to assuage consumer’s concerns over protection of their private information.

These proposals are in response to action taken by legislators and regulators to allow for better mobile privacy in this new technological age. While the heart of the argument stems from concern about the privacy of children (hence the relation to COPPA) a broader privacy concern is inherently linked. People do not want to feel as if their online actions are being followed while using Instagram, Facebook, Twitter or any other favorite social media site, so that the advertisements they see are specifically targeted at them. It feels like an invasion into our minds when what we supposedly “like” is being handed to us so that marketers can make money off of our use of a free website. In general, people seem to think such information is private and should not be exploited.

The question then becomes is it even possible for the federal government to police such online action when the mobile and technological world is ever changing?

Advertising and marketing groups believe that a privacy notification that allows the consumer to opt out is the farthest the government should be able to go in regulating this. They contend that anything more destroys the entire point of the Internet – to empower “the free flow of information.”  Their argument is that the free access to information and videos we are so used to would never exist without the revenue those websites gain from advertisements. Their more convincing point, at least in my opinion, is that it is not actually such a bad thing for consumers to only be bombarded with advertisements they presumably are more interested in based on their web browsing history. That being said, this tracking to figure out the consumer’s preference is not always accurate and it is certainly in the most literal sense, an invasion of a form of privacy most people expect when using their own computer.

While advertisers and marketers push for continued self-regulation, the lame attempts that have been made thus far just are not cutting it for the general public, and through them their legislators. A prime example of how self-regulation in the mobile app and Internet world has failed can be seen with the recent attempt by Instagram to change their terms of service. The photo sharing mobile app “lay[s] the groundwork for the company to begin generating advertising revenue by giving marketers the right to display profile pictures and other personal information such as who users follow in advertisements.” The backlash has been enormous with celebrities who used to support the app using other social networking sites like Twitter to denounce their use of Instagram based on the new terms, and the general public feeling outraged that they have been given an ultimatum to cease use of their app or allow their private information to be used publicly for advertisements. It seems that Instagram did not realize how much of an impact their policy change would have because after all of the complaints they remanded their changed policy on the use of personal photos for advertising.

While celebrities may have the power to persuade a change in policy that they find distasteful, the more acute concern for legislators and regulators is protecting those who do not have such power, or in some cases even the understanding of what is going on – children.  Around sixty interest groups have voiced their desire to protect children by “banning marketers from sending behaviorally targeted ads to children.” This concern is not only based on location tracking data, but extends to facial recognition software and “persistent identifiers” that give advertisers and marketers the tools they need to identify children online and on their mobile phones.  The Federal Trade Commission has the power to specify the details of what COPPA extends to, and they have proposed, “broadening the definition of personal information to include unique identifiers…including certain types of cookies…serial numbers, and in some cases, IP addresses,” as well as allowing COPPA to encompass third parties collecting such data for the advertisers and marketers.

The big names like Facebook, Apple, Google, Microsoft, and Twitter are generally against such expansions, because under the current law their industry has blossomed.  California, a state extremely involved in intellectual property related business, has been working towards better protections for children via better-displayed privacy agreements. More than this improved display may be necessary, as children are extremely vulnerable. While the Federal Trade Commission has proposed a change to the stipulation regarding consent of a parent under COPPA to provide that such consent must now be “verifiable,” the question then becomes how can we tell? Figuring out what kind of proof will meet this criterion seems to be just as much of a conundrum.

The recent trouble over “SpongeBob Diner Dash” provides a good example to see just how stringent the opposition to COPPA as it stands wants these changes to be. The Center for Digital Democracy complained that this app was violating COPPA by collecting personal information from children, when asking for e-mail addresses in order to download the free app via “push notifications,” without asking for parental permission. Nickelodeon has removed the app from iTunes temporarily while the Federal Trade Commission looks into the issue. This was an extremely popular game for children, and its removal shows just one way that interest groups and legislators are getting involved to crack down in this area of privacy.

Figuring out how expansive the law in this are should be seems overwhelmingly complicated, and it likely will take some time to truly figure out an acceptable standard that maintains the Internet and mobile app world as we know it while reconciling the strong push for better safety and security for children to enjoy this technology.


Sara Goldschmidt

Sara Goldschmidt is a second year student at Fordham Law and is a staff member on IPLJ. She holds a degree in Political Science and Criminal Justice from George Washington University. Her interest in intellectual property law stems from her failure to have any actual talent in the entertainment, sports, and media world – this is her way in!