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House Subcommittee Vets FTC COPPA Proposals

House Commerce Committee Chairman Mary Bono Mack (R-Calif.) said Wednesday that protecting kids from the Internet's dark side was "one of her top priorities" as a mother and a legislator. That concern appeared to be a unanimous sentiment among the legislators and witnesses at Wednesday's House Commerce subcommittee hearing on "Protecting Children's Privacy in an Electronic World," which dealt specifically the Federal Trade Commission's (FTC) proposed revisions of the  Children's Online Privacy Protection Act (COPPA).

The protection of their kids was a bipartisan theme as legislators talked about their own young children's access to the Web. But there was less agreement about how to protect kids from that dark side and whether teens needed more government protection from tracking and targeting online.

Bono Mack was not ready to extend the age of COPPA's covered kids to teenagers 13-17. The FTC is proposing requiring those collecting data from teenagers to get their permission, rather than their parents. "While some privacy advocates would like to raise the COPPA age threshold because of an increasing use of social networking sites by teenagers, such as Facebook, Twitter and Google+, I believe the FTC showed common-sense restraint in taking a 'go-slow' approach. The last thing we want to do is to inhibit technological advancements and stifle growth of the Internet by moving forward in a new policy area without a really good, smart game plan in place. I look forward to having this particular debate in the months ahead as we continue our broader hearings on privacy."

COPPA prohibits Web sites targeted to kids from collecting the personal information of kids under 13 without their parents permission, and other sites from such collections if "have actual knowledge" that a user is under 13 and they do not have parental consent.  Sites also have to publish notice on the site of what info they are collecting, using or disclosing and provides a safe harbor for for those in compliance with the act.

The FTC has proposed changes in the notice policies on collection, use and sharing, how parental consent is obtained, adding a data retention and deletion element, and changes in oversight of the safe harbor. In its majority memo on the hearing, Republican staffers pointed out that the FTC wants to expand the definition of online contact info from email addresses or similar identifiers to "all identifiers," including instant messages, seen names and video chat user names. It would also expand the definition of personal information to include geolocation information and IP addresses.

Morgan Reed, executive director of the Association for Competitive Technology, representing apps developers, said he had two words for the panel: "We're hiring." He also cited various apps being developed in various legislators' districts, including one that helps grandparents pray for their kids, do random acts of kindness, and ecology awareness. He said these app developers aren't large faceless corporations, but thousands of moms and dads and cautioned against overregulation that could dampen the exposive growth in mobile apps.

Stephen Balkam of the Family Online Safety Institute, said there needs to be a more sophisticated approach to online safety, which he summed up as "tools, rules and schools" that would build a culture of responsibility. He said he supported "balanced" government oversight of self-regulation. Balkam cited a study, commissioned by several of its members, that the majority of parents are aware of online protection tools.

He joined Bono Mack in praising the FTC's retention of the "under 13" standard for parental consent. "No further action on the part of Congress is necessary at this time," he said, with the caveat that he supported Congress boosting funding for online education and research.

Dr. Kathryn Montgomery, director of the Ph.D. Program of American University's School of Communication, who was instrumental in crafting the COPPA law back in 1998, said COPPA has been an effective safeguard for kids under 13. She said it has curtailed some of the more egregious practices that might have evolved, but said it was a new world with new media practices that needed new safeguards.

She said that adding mobile and location devices to the law's protection is appropriate given the potential for marketing abuses. She also said she agreed that the COPPA parental permission regime is not appropriate to teens, but that they should no longer be excluded from the broader privacy conversation given the government's obligation to protect youth. "We can help insure that young people are treated fairly in the digital marketplace," she said, adding her support for the kids do-not-track bill backed by Rep. Joe Barton (R-Tex.) and Ed Markey (D-Mass.), the co-chairs of the bipartisan House Privacy Caucus.

Barton was one of the legislators who said the issue was very personal, citing his own 6-year-old's access to the 'net. He put in a plug for his kids do-not-track bill (HR 1895) and its "eraser button" that would allow parents to delete online info on their kids. The bill would also create a set of fair marketing practices for teens that would explicitly apply to 13-17-year-olds.

Asked why the FTC decided not to raise the age of parental consent for information collection to 17, Mary Koelbel Engle, associate director of the Division of Advertising Practices, for the FTC, thought 13 was the right cut-off for parental consent. She said there were concerns about the constitutional rights of teens, as well as the likelihood that teens would simply lie about their age, which she said was less likely with younger kids. 

Barton asked how teens are protected if the FTC does not explicitly extend protections to them. Engel said that the FTC is considering that in its broader review of online protections, but has not reached conclusions or taken a position. "We are definitely not automatically opposed to extending protections to 13-17-year-olds," she said.

Engel said the FTC believes mobile apps and geolocation are already within its purview, but wants to clarify that by making it explicit in COPPA.

Balkam took issue with the "eraser button" in Barton's bill, telling the Congressman FOSI had serious concerns about parents taking off info of their 17-year-olds. Balkam did not say he opposed "super cookies," but said they deserved future consideration. Barton said he hoped eventually everyone could agree on banning those cookies, which allow tracking even after a Web user has left a site and without their knowledge that the info is being collected.

Another of the FTC's proposed changes is to expand the category of factors it uses to determine whether a site targets kids to include things like music and celebrities. One legislator pointed out that attraction to music and stars applies to adults as well. Engel said that adding the factors was not drawing a "bright line" but instead giving businesses a better sense of what factors went into the "totality of circumstances" test for a child-targeted web site.

Rep. Gregg Harper (R-Miss.) asked how much of the $6 million in civil penalties the FTC has levied in cases of online privacy violations came from the FTC's own review -- rather than, say, activist groups, Engel said most came from the FTC's own investigation. He asked what is wrong with targeting ads to kids based on likes and dislikes so long as that is anonymous. She said that under 13, parents should be responsible for what their kids are exposed to on the Web and who is contacting them.

Engel said the FTC had considered the costs on small businesses of its proposed changes to the COPPA rules, and said it welcomed more input from those businesses.

Rep. Bill Cassidy (R-La.) talked about his 10-year-old daughter and her ability to download apps on his iPhone -- saying he felt unimpowered -- and his concerns about the "subliminal molding" of kids via online games. Reed said he could help provide some of that empowerment. He said all devices had "pretty granular" parental controls. Montgomery shared his concern about marketing through online games, saying that was the reason COPPA should prevent behavioral tracking of kids.

Bono Mack asked whether there wasn't positive targeting. Montgomery said she was not opposed to contextual advertising, but that there still needed to be ways to prevent tracking of kids personal info.

Rep. G.K. Butterfield (D-N.C.), ranking member of the committee, said a lot of the FTC's proposed COPPA revisions should be included in baseline privacy legislation for adults and kids currently being vetted.