In response to reported on-going confusion regarding how to satisfy the “verifiable parental consent” requirements in Children’s Online Privacy Protection Act (“COPPA”) 15 U.S.C. §6501 et. seq. (1998), and its implementing regulations, 12 CFR Part 312 (2000), the Federal Trade Commission (“FTC”) revised its guidance on enforcement of the same. According to the FTC, “The primary goal of COPPA is to place parents in control over what information is collected from their young children online. The Rule was designed to protect children under age 13 while accounting for the dynamic nature of the Internet.” The FTC provides interpretive guidance on COPPA and the regulations promulgated under it via Frequently Asked Questions (“FAQs”) on its business center website. FTC revised these FAQs on July 16, 2014.

The revised FAQs generally affirm the FTC’s longstanding position that its list of acceptable methods to obtain verifiable parental consent is not exhaustive. Instead, web-based and mobile application designers are free to use creative methods of verifying parental consent if such consent can be shown to be a “reasonable effort (taking into consideration available technology) . . . to ensure that a parent of a child receives notice of the operator’s personal information collection, use, and disclosure practices, and authorizes the collection, use, and disclosure, as applicable, of personal information and the subsequent use of that information before that information is collected from that child.” 15 U.S.C. § 6501(9).

So, what’s different under the new guidance?

When Parental Credit Card Data is and is not Sufficient under the Rule

The FTC confirmed and expounded upon its prior position that charging a parental credit card is sufficient to satisfy the rule—the parent will, at the very least, see the charge on their monthly statement and thus have notice of the child’s visit to the site. Merely gathering credit card information from a parent, without charging the card, is insufficient to satisfy the rule, however. That said, credit card information can be combined with other information—such as questions to which only parents would know the answer, or parent contact information—to meet the verifiable parental consent requirement.

Don’t Look at Us, Look at the App Store.

The FTC also clarified its guidance regarding parental consent for mobile applications given via an applications store. Much the same way a charge to a parental credit card is sufficient, so too can an application store account be used as a COPPA-compliant parental consent method. For example, if the application store provides the required noticed and consent verification prior to, or at the time of, the purchase of a mobile app marketed to children under 13, the mobile application developer can rely upon that consent.

Multiple Platform Consents.

The application store can also multi-task when it comes to obtaining COPPA consents. Application stores can now create multiple platform COPPA consent mechanisms. This consent function can satisfy the COPPA consent requirements for multiple mobile application developers. And—enterprising start-ups pay attention—providing this software service solution for mobile application providers does not create liability for the third party application store or software company that builds the solution.

This flexibility for mobile developers is intended to open up space in the mobile application development market while still meeting the FTC’s goal of keeping parents in control of what their under 13 kids are viewing and disclosing on the Internet.

Tags: Children's Online Privacy Protection Act, Federal Trade Commission, FTC
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Photo of Joseph J. Lazzarotti Joseph J. Lazzarotti

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP)…

Joseph J. Lazzarotti is a principal in the Berkeley Heights, New Jersey, office of Jackson Lewis P.C. He founded and currently co-leads the firm’s Privacy, Data and Cybersecurity practice group, edits the firm’s Privacy Blog, and is a Certified Information Privacy Professional (CIPP) with the International Association of Privacy Professionals. Trained as an employee benefits lawyer, focused on compliance, Joe also is a member of the firm’s Employee Benefits practice group.

In short, his practice focuses on the matrix of laws governing the privacy, security, and management of data, as well as the impact and regulation of social media. He also counsels companies on compliance, fiduciary, taxation, and administrative matters with respect to employee benefit plans.

Privacy and cybersecurity experience – Joe counsels multinational, national and regional companies in all industries on the broad array of laws, regulations, best practices, and preventive safeguards. The following are examples of areas of focus in his practice:

  • Advising health care providers, business associates, and group health plan sponsors concerning HIPAA/HITECH compliance, including risk assessments, policies and procedures, incident response plan development, vendor assessment and management programs, and training.
  • Coached hundreds of companies through the investigation, remediation, notification, and overall response to data breaches of all kinds – PHI, PII, payment card, etc.
  • Helping organizations address questions about the application, implementation, and overall compliance with European Union’s General Data Protection Regulation (GDPR) and, in particular, its implications in the U.S., together with preparing for the California Consumer Privacy Act.
  • Working with organizations to develop and implement video, audio, and data-driven monitoring and surveillance programs. For instance, in the transportation and related industries, Joe has worked with numerous clients on fleet management programs involving the use of telematics, dash-cams, event data recorders (EDR), and related technologies. He also has advised many clients in the use of biometrics including with regard to consent, data security, and retention issues under BIPA and other laws.
  • Assisting clients with growing state data security mandates to safeguard personal information, including steering clients through detailed risk assessments and converting those assessments into practical “best practice” risk management solutions, including written information security programs (WISPs). Related work includes compliance advice concerning FTC Act, Regulation S-P, GLBA, and New York Reg. 500.
  • Advising clients about best practices for electronic communications, including in social media, as well as when communicating under a “bring your own device” (BYOD) or “company owned personally enabled device” (COPE) environment.
  • Conducting various levels of privacy and data security training for executives and employees
  • Supports organizations through mergers, acquisitions, and reorganizations with regard to the handling of employee and customer data, and the safeguarding of that data during the transaction.
  • Representing organizations in matters involving inquiries into privacy and data security compliance before federal and state agencies including the HHS Office of Civil Rights, Federal Trade Commission, and various state Attorneys General.

Benefits counseling experience – Joe’s work in the benefits counseling area covers many areas of employee benefits law. Below are some examples of that work:

  • As part of the Firm’s Health Care Reform Team, he advises employers and plan sponsors regarding the establishment, administration and operation of fully insured and self-funded health and welfare plans to comply with ERISA, IRC, ACA/PPACA, HIPAA, COBRA, ADA, GINA, and other related laws.
  • Guiding clients through the selection of plan service providers, along with negotiating service agreements with vendors to address plan compliance and operations, while leveraging data security experience to ensure plan data is safeguarded.
  • Counsels plan sponsors on day-to-day compliance and administrative issues affecting plans.
  • Assists in the design and drafting of benefit plan documents, including severance and fringe benefit plans.
  • Advises plan sponsors concerning employee benefit plan operation, administration and correcting errors in operation.

Joe speaks and writes regularly on current employee benefits and data privacy and cybersecurity topics and his work has been published in leading business and legal journals and media outlets, such as The Washington Post, Inside Counsel, Bloomberg, The National Law Journal, Financial Times, Business Insurance, HR Magazine and NPR, as well as the ABA Journal, The American Lawyer, Law360, Bender’s Labor and Employment Bulletin, the Australian Privacy Law Bulletin and the Privacy, and Data Security Law Journal.

Joe served as a judicial law clerk for the Honorable Laura Denvir Stith on the Missouri Court of Appeals.

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