COPPA Compliance Made Easy: Keep Kids In Mind

September 20th, 2006

By John Tomaszewski

The response in the commercial space to the Xanga.com settlement with the FTC has raised some interesting speculation/interpretation on FTC enforcement of the Children’s Online Privacy Protection Act (COPPA). One assumption is that the FTC doesn’t consider End User License Agreements (EULAs) to be worth the paper they are printed on, from a compliance perspective. If a EULA is going to be a legitimate mechanism to inform consumer consent to be bound by the terms, the FTC is looking for a EULA that a consumer can read and reasonably understand the implications without completing a law degree.

All of these EULAs are non-negotiable (the legal term for this is an adhesion contract). Most of the contracts that I sign are adhesive (my apt. lease, my claim check at a parking lot, my airline tickets, etc). I do have the choice not to do business if the contract is draconian. In the Xanga case, the FTC isn’t saying that EULAs are useless and not enforceable. They recognize EULAs non-negotiability but if they are going to be the mechanism for informing consent, they cannot require the average consumer to go through 10 pages of 8 point type to find that they can’t use the site if they are under the age of 13. If you are going to rely on a EULA for notice you had better make sure you are comfortable with your ten-year-old’s ability to understand the bargain it requires.

The answer to the child protection burden for many general audience Web sites has been simply to avoid collecting birthdates. This may allow these sites a safe harbor of plausible deniability, but it completely skirts the intent of the law, which is to protect children. Children these days are growing up privacy and security aware. Avoiding age collection also misses an opportunity to build trusting relationships with kids and their guardians about their online choices. Companies marketing to children should follow the golden rule to keep their audience in mind whether they are promoting products or providing choices.

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