The Privacy Lawyer: Kids' Online PrivacyThe Privacy Lawyer: Kids' Online Privacy

Set Clear Collection Practices
If you run a commercial entity with a general-audience Web site, you need to debrief all involved on their collection practices. Even if COPPA doesn't apply to the site, you may still run afoul of the consumer-protection laws if your privacy policy doesn't accurately and completely disclose what personal information you collect from Web-site visitors and what you do with that information.

It's interesting to note that the law in the United States doesn't require that most sites have a privacy policy at all. Yet, those who voluntarily post one face liability for any misrepresentations or inaccuracies. So while it is certainly best practices and responsible consumer protection to post one, you may find yourself facing greater legal liability than if you don't post one at all. (All children's sites, under COPPA, are one of those exceptions and are required to have accurate privacy policies posted throughout the site.)

If you collect a Web-site visitor's age or grade or similar information online (offline collection has different rules), you may have actual knowledge that you're collecting personal information from a "child" and need to comply with the full panoply of COPPA regulations. Even if you don't overtly request that information, you may still be found to have that knowledge if you have monitored chat rooms or discussion boards at which a user may disclose that information. If the site collects any personally identifiable information from its users or provides any means of public disclosure of such information (such as through an E-mail service, chat room, discussion boards, or instant-messenger service), and the site is alerted that a particular user is a statutory "child," then the site must comply with COPPA.

Think you're off the hook, since you're simply an Internet advertiser? Think again! Banner advertisers and network advertising companies are covered by COPPA and its regulations if they advertise at children's sites and collect personal information from children who click through from such sites. They're also covered if they have ownership or control over such information collected directly at the children's sites. Database-management companies have special treatment under the law, but are covered by COPPA and its broad reach as well. Advertisers at general-audience sites may also be covered by COPPA if they collect personal information from people who click through, and that information discloses that the visitor is a child.

Consider What Info You Collect
Many companies are collecting data from their Web-site visitors without knowing why they're collecting it or if they're using it properly. Unless companies are under investigation or have heard of another company under investigation, their legal departments rarely communicate with Web masters. It's a good idea to check and see what you're collecting and how, as part of a regular internal audit. Think carefully about why you're collecting certain information and whether you're really using it. Collecting and storing data when insecure practices subject you to serious legal liability and even more dire public relations, especially when you aren't using it, is costly. Think before you collect. And think again before you store it for any length of time. And make sure the lawyers, the marketing people, the PR crew, and the business and IT group are involved in this decision. Human resources should be included as well, especially if it involves any employee-interfaced collection practices.

Few lawyers, even among experienced cyberspace law practitioners, understand the children's Internet industry and the regulations and safety concerns that apply to it. But the failure to understand what information can be collected from children, how it can be used, and what needs to be accurately disclosed to parents, has cost many companies dearly. With this tough child-protection law on the books, all commercial Web sites must be vigilant in ensuring that the rights of parents to notice and consent are honored. If companies ignore parents' concerns regarding privacy and advertising, they will have to face tough enforcement of government regulations aimed at U.S. advertisers' marketing to children online and child protection, and the even tougher scrutiny of disgruntled parents.

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To find out more about Parry Aftab, please visit her page on the Listening Post.

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