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Creators Want Guidance

FTC’s Phillips: Fair to Say COPPA ‘Lacks Clarity’

It’s “absolutely fair to say” the Children’s Online Privacy Protection Act FTC rule “lacks clarity,” Commissioner Noah Phillips told reporters Monday. The agency is reviewing COPPA for potential changes, which spurred discussion about how the agency defines child-directed content (see 1912120062). “I also think it’s important to ask what the statute requires and then what is the proposed thing you think would add clarity,” Phillips said after a TechFreedom event.

The GOP commissioner said “child-directed” is difficult to define. He suggested a multifaceted test, “however open to judgment,” may be the right approach to provide better clarity. TechFreedom heard from several content creators who said the FTC is lacking clear guidance for how to label their content.

The agency should provide a way for companies to rebut the presumption that viewers of child-directed content are only children, not adults, said Google Public Policy Manager Sarah Holland during Monday's event. A common industry argument is against limiting advertising when viewers are potentially adults. Content directed to children is subject to more limited rules for targeted promotions and comment sections, for instance.

Treating adults as children only gives them more privacy, said Georgetown law professor Angela Campbell. Phillips disagreed, saying, “There is a tendency in the privacy debate to simply say, ‘Privacy, that’s a word, it’s good, I want more of it.’” It’s like saying a person wants more freedom, he added. Applying an actual statute will spur a wide range of opinions, he said.

The agency needs to offer guidance on general audiences, child-directed audiences and family viewers, said Hunton Andrews attorney Phyllis Marcus, ex-FTC advertising practices chief of staff. She noted the FTC sought public input about content directed to adults drawing child audiences.

The biggest assumption policymakers made when passing COPPA was that the tech industry would have automated mechanisms for verifying adults, said TechFreedom General Counsel Jim Dunstan. There are no such mechanisms, which leaves a gaping hole, he said. Phillips urged legislators to limit rulemaking authority they grant to the FTC under a new privacy law. Congress, not the agency, should be making the bigger policy decisions, he said. Congress should be wary of “delegating authority to unelected bureaucrats,” he said.

Privacy is "bubbling" as an issue like never before, Phillips said. He noted it’s important to remember that changes through rulemaking can have a tremendous impact. “When you give rulemaking authority and you don’t cabin that rulemaking authority, there is a lot of room for agencies themselves to understand the policy,” he said. “We get a lot of input from the public, that’s important, but that’s a great deal of power.”

Online data use is “endemic,” Phillips said. The impact of privacy policy decisions are much broader than assumed, he said. The commissioner argued that tens of thousands of companies across the economy will be affected, not just major Silicon Valley companies.