Dis-“Like”-ing the Proposed Revisions to Child Privacy Laws

Mark Zuckerberg’s “liked” pages at the moment probably don’t include the Federal Trade Commission. Recently, Facebook sent a twenty-page letter to the Federal Trade Commission objecting to proposed revisions of the Children’s Online Privacy Protection Act (COPPA), applicable to children under 13 years of age. Facebook asserts that it has no control over sites that incorporate social plug-ins, such as a “like” button, and should not be held liable under the child privacy law.

In her letter, Facebook Chief Privacy Officer of Policy Erin M. Egan argues that Facebook cannot be held liable for the sites using social plug-ins because the “like” button is an “off-the-shelf” product over which Facebook no longer has control. Egan also posits that Facebook’s age verification at sign-up should be sufficient as actual knowledge, pursuant to the Administrative Procedure Act, and holding Facebook liable for failure to check a user’s age when a “like” button is clicked from a third-party website is inconsistent with the Act. In support of her argument, Egan points to Congress’s intent in passing COPPA: “to limit COPPA’s obligations to situations in which ‘personal information [is] collected from a child.’” Furthermore, Egan attacks the proposals to COPPA as a First Amendment violation because social plug-ins such as the “like” button constitute free speech.

Facebook’s latest disagreement with COPPA is merely a part of the ongoing dispute over child privacy laws. As mentioned in the letter, Facebook adamantly insists that the Internet is a valuable learning tool for children, and COPPA can only serve to inhibit that benefit. As Facebook argues, these stricter regulations would certainly raise issues for Facebook and the third-party websites using its social plug-ins by adding a burden of age verification procedures for the plug-ins, perhaps chilling such use of the plug-ins.

Facebook’s constitutional argument is interesting to consider. While the current Supreme Court tends to take an expansive view of First Amendment rights, COPPA as it currently stands has not been ruled unconstitutional. The proposed regulations still allow for the free speech of children under 13 years of age as long as certain procedural requirements are met, and minors have long had First Amendment rights somewhat less than those of a full-fledged adult, so at first blush, it does not seem that the Court would find these proposed revisions to COPPA unconstitutional.