FTC Lawyer Targets Use of Mobile Apps, Social Networks in Selling to Kids

FTC authority under the COPPA “squarely applies to social networks and services” in their collection, use and disclosure of data about children, Marcus said. Disclosure is defined broadly enough to include how children are allowed to display their own information, she said.

A commission workshop in June brought out “pretty strong anecdotal feelings” that companies’ online social networking fan pages have “many, many, many underage participants,” Marcus said. “A marketer should tread very, very carefully” in collecting information without parental consent if a user only “appears to be a child,” she said. Companies should “weed out” and “unfriend” fans that seem to be under 13, the threshold for COPPA’s protection, so social networks aren’t “the Wild West,” Marcus recommended. She called her advice a “best practice” and conceded that “what I'm saying may be a little controversial."

The commission is reviewing its rules under the act, and could make further use of its statutory authority to broaden the scope of information covered, Marcus said. “It is a very broad review,” she said. “We are looking at all aspects.” Marcus wouldn’t say what the effort will produce. “There will be articulation one way or another” of the FTC’s policy conclusions, she said. “We are not too far away.” A published notice will announce proposed rule changes or the commission’s decision not to seek any, Marcus said. The FTC has “an open phone line policy,” she said, inviting calls for guidance on compliance.

Content providers are “certainly attuned to the increased concern” expressed by the FTC about minors’ privacy security and safety, including worries it has “glaringly” raised of late about those 13-17, said Andrea Shandell, senior legal counsel at Gannett. “We heard it,” she stressed. “We're quite aware of it.” The commission’s new emphasis poses new compliance challenges, Shandell said.

Concerning behavioral advertising, Marcus said “people are urging us to reconsider” excluding persistent identifiers by themselves from the definition of protected personal information. There’s also considerable support for including “specifying geolocation information,” and stills and video of children, she said.

The FCC has no formal definition of interactive TV marketing, but it’s generally considered any pitch that seeks viewer interaction, said Holly Saurer, a lawyer in the FCC Media Bureau’s policy division. That would include purchases made by remote control and ads in interactive games, she said. The commission is “speaking to providers” of pay TV about the subject, Josh Gottheimer, an aide to the FCC chairman said. Opt-in requirements “might be a huge bar” to this kind of advertising, Shandell said. But the FCC’s Saurer said that in an open proceeding started in 2004, the commission has heard from children’s advocates as well as business “that opt-in may not be the best way to go."

The FCC has found themes in comments responding to a broad October 2009 notice of inquiry about empowering parents and protecting children in an evolving media landscape, including about a shortage of standardized curricula and other information for what’s called the important mission of increasing media literacy among parents, teachers and caregivers, as well as children, Saurer said. Great concern is expressed in the comments about commercialization including marketing to kids, she said, but experts don’t consider the dangers online greater than those offline and they think that the threats to at-risk kids are equivalent in the two spheres. “We are currently actively reviewing the docket,” Saurer said, without elaborating on planned action.

Location-based services are a “big issue” and the “focus of the latest round of study” on privacy at the FCC, said Gottheimer. “People are being tracked unknowingly” in some cases, and “obviously there’s a dangerous side to that that we want to make sure” young people and parents understand, he said. More broadly a commission task force has sought out discussions with carriers, cable operators, public interest groups and academics so the commission can “learn more in an ever-evolving space,” Gottheimer said.

The FCC is “concerned about children’s infomercials,” such as “a 30-minute cartoon about a product,” Gottheimer said. The commission has a complaint filed by the Campaign for a Commercial-Free Childhood against a long-form cartoon about Skechers. Skechers is also a shoe brand name. “At last count” the FCC had received 1,500 comments “from concerned parents,” Saurer said: “We're looking at it very closely, and I know it’s something the chairman in particular is very concerned about."

Officials called recent cooperation between the FCC and the FTC productive. A joint privacy task force that’s a few months old has created “a good relationship” which has been “fruitful,” Gottheimer said without providing details. The federal OnGuard Online program also has been “a very fruitful development,” he said. And the two commissions have displayed “a really good relationship” in developing recommendations to the White House about childhood obesity and in broader interagency work, Marcus said.