Published by Challenge Communications
The most vulnerable travellers on the Internet are our children. However, children, in many ways, also play an important role in the future commercialization of the Internet. One study has found that children between the ages of 4 and 12 influenced the purchase of $170 billion in products and services in 1995. This number may be increasing by as much as 20% each year.
On January 6, 1997, the Federal Trade Commission issued a staff report regarding Consumer Privacy in the Online Marketplace. The Report can be found at the FTC's website (http://www.ftc.gov ) under "Conferences, Hearings, and Workshops". This article focuses on the findings of the Report relating to privacy of information about children gathered on the Internet.
Protecting Children -
U.S. law provides special protections for children. For example, under common law, children are permitted to "break" most contracts. Under federal law, the Telephone Disclosure and Dispute Resolution Act of 1992 expressly prohibits advertising of pay-per-call 900 services to children under 12, unless they are for educational services. Additionally, the Children's Television Act of 1990 limits the amount of advertising that can appear on television programs directed toward children. Furthermore, the U.S. Supreme Court has recognized a Constitutional basis for the right of a parent to direct and control the rearing of a child. See Ginsberg v. New York, 390 U.S. 629, 639 (1968).
Industry groups have also imposed self regulations to protect children. For example, the major television networks have adopted guidelines prohibiting high-pressure sales techniques directed at children, such as using the characters or the host of a show in ads that run during or adjacent to the show.
Companies have long recognized the important role children play in causing purchases to occur and have gathered information about children for marketing purposes. Much of this information is gathered directly from children through contests, collecting and sending in boxtops and magazine subscriptions. Generally, the collection and use of this information is not subject to government regulation.
The online collection and use of information about children is of much more concern than what currently occurs offline. There are several reasons for this. Much of the offline collection occurs with some parental intervention and knowledge. For instance, if boxtops are mailed out, the parent provides a stamp and therefore is aware that a letter is going to be placed in the mail. However, the transmission of information by a child online can easily occur without the knowledge of a parent.
Additionally, information can be much more easily elicited from a child online. For instance, a child visits a child-oriented website where a lovable cartoon character asks the child to provide personal information, such as name, address, age, interests, as well as information regarding the child's family. Information can also be gathered through completing online guest books, corresponding with fictional characters, participating in contests, bulletin boards and chat rooms. The "send" button is pushed and the parent is never aware that the communication occurred. What is more troublesome is that a child can develop a relationship with a person online also without a parent's knowledge. This would be much more difficult to accomplish offline.
The interactive nature of websites also allow for higher levels of contact than is available over other media such as television. For instance, a website can store information about a child's preferences, which then can be used to present information to a child upon a return visit that reflects these preferences. This one-to-one contact enhances the contact substantially above contact achieved through other media.
This interactivity can also provide benefits: content can be customized to a child's interests which would create more interest, thereby enhancing educational experiences and provide targeted, useful products at better prices.
There is a range in the ways that information about children can be used. On one end of the spectrum, there is little concern. This is where information is gathered in a manner that does not personally identify any individual child and is used for the purpose of studying how the site is being used in order to modify and improve the site. On the other end of the spectrum, sites may gather extensive information about individual children and their families which is then used to market directly to the children or to sell to others for marketing purposes.
Primarily, privacy groups would like to see provisions for requiring parental consent before information is gathered from children online. However, some of the difficulties in implementing this objective include: (1) deciding what ages would require parental consent, (2) how to verify that the age represented by a child online is the correct age, and (3) how to determine whether the parent has actually consented, or whether the child pretended to be the parent. Verification can possibly occur through use of digital signatures, verified certificates or encrypted identification systems - after these techniques have been further developed.
The desire to grant parents control is generally accepted among both privacy and commercial groups. The debates heat up when trying to determine what mechanism to use to achieve this result. The options are (1) industry self regulation, (2) government regulation and (3) technological regulation.
Technological regulation is the most appealing because it can be quickly implemented, reflects individual and consumer choice, spans national borders and places a barrier between children and lawbreakers. For instance, filtering technology that is currently being used to block sites that have objectionable content can also be used to block transmission by a child of specific information, such as e-mail or home address or telephone numbers. Additionally, some programs can create an audit trail which would allow a parent to see where the child has been on the Internet and what information has been disclosed. However, some people might be concerned that these methods will actually reduce the privacy rights that a child should ordinarily enjoy with parents.
Self regulation by industry groups has been criticized as being ineffective where children are involved. Especially, if the regulation incorporates the opt-out approach adopted by the direct marketing industry. "Opt-out" means that personal marketing information can be used unless an individual takes the necessary steps to opt-out. Children cannot be expected to take such "opt out" steps. Some suggest a complete ban on collection of information from children. Others suggest banning all direct e-mail to children without parental consent.
Two bills were introduced in the last session of Congress that deal with privacy of information concerning children. One is the Communications Privacy and Consumer Empowerment Act (H.R. 3685) introduced by Representative Edward J. Markey (D-MA). This bill would require the Federal Trade Commission to determine whether parents currently have the ability to exercise privacy rights regarding their children, and if not, determine how to provide these rights, by rulemaking or otherwise.
The Children's Privacy Protection and Parental Empowerment Act of 1996 (H.R. 3508) was introduced by Representative Bob Franks (R-NJ). This bill would prohibit, without the written consent of a parent, the sale of personal information about children, and use of information, collected from children through games, contests or other means, to contact a child except in connection with such game or contest.
Everyone agrees that children need special protection. How to get there is the question.
Mr. Galkin can be reached for comments or questions about the topic discussed in this article as follows:
E- MAIL: wgalkin@lawcircle.com WWW: http://www.lawcircle.com/galkin TELEPHONE: 410-356-8853/FAX:410-356-8804 MAIL: 10451 Mill Run Circle, Suite 400 Owings Mills, Maryland 21117. Mr. Galkin is an attorney who represents small startup, midsized and large companies, across the U.S. and internationally, dealing with a wide range of legal issues associated with computers and technology, such as developing, marketing and protecting software, purchasing and selling complex computer systems, launching and operating a variety of online business ventures, and trademark and copyright issues. He is a graduate of New York University School of Law and the adjunct professor of Computer Law at the University of Maryland School of Law.
The Computer Law Observer Pro service distributes weekly to subscribers selected articles discussing legal issues relating to computers, the Internet and technology. Articles selected represent what we consider to be the best current writing on these topics. Articles are gathered from legal newspapers, newsletters, magazines and other sources, and all necessary rights for these distributions are acquired from the copyright holders.
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The Computer Law Observer is distributed monthly for free by Challenge Communications (ChallComm@aol.com or (410)356-1238). To subscribe, send an e-mail message to lawobserver-request@charm.net with the word "subscribe" typed in the message area (leaving out the quotation marks). To unsubscribe, follow the same instructions substituting the word "unsubscribe". Back issues can be found at http://www.lawcircle.com/observer. Copyright 1997 by Challenge Communications.
The following selections were distributed to members of the Computer Law Observer Pro service and represent what we consider to be leading current writing in the area of computer and Internet law. Subscription information for the Computer Law Observer Pro service can be found at the end of this message and at http://www.lawcircle.com/observer :
(2/17) " Is Software 'Speech'? from the Legal Times (Washington) (January 27, 1997), by Benjamin Wittes
(2/24) "What Are the Crimes?" (Chapter 2) from Computer Crime: A Crimefighter's Handbook, by David Icove, Karl Seger, and William VonStorch, published by O'Reilly & Associates
(3/3)"Dealing With Copyright Aspects Of Computer-Aided Authorship," from Computer Law Strategist (January, 1997), by Andrew J. Wu
(3/10) - Upcoming - Selections from March issue of the Cyberspace Law Authorities Reports, published by Legal Authorities Network
Last updated 97/03/07