The U.S. federal government and various states are increasingly seeking new ways to legislate the protection of children online, including through stronger regulation of website operators and expanded protections for children whose images and information are used in online content and who generate income via online activities.
From recent Congressional hearings and federal legislative updates to a flurry of new general privacy laws being passed at the state level, children's online activities are being closely monitored in an effort to minimize the risks associated with such activity.
Updates to COPPA
On December 20, 2023, the FTC announced new proposed revisions to the Children's Online Privacy Protection Act ("COPPA") which are designed to expand the law's scope. Last revised in 2013, COPPA imposes requirements on operators of websites and online services whose content is directed at children under age 13 or who knowingly collect personal information online from a child under age 13.
The public comment period ends on March 11, 2024. According to the FTC, proposed revisions to COPPA include the following provisions:
- Requiring separate opt-in consent for third-party disclosures
- Limiting the "support for internal operations" exception
- Limiting companies' nudging of kids to stay online
- Limiting data retention
- Codifying ed tech guidance
- Increasing accountability for Safe Harbor programs
- Strengthening data security requirements
- Expanding the definition of "personal information" to include biometric identifiers
Although the proposed updates to COPPA are in their initial stages, companies that are subject to COPPA should be prepared for a more robust federal framework which will likely inspire more proposed laws aimed at protecting children's online privacy.
State regulation of website operators
The proposed updates to COPPA aimed at website operators follow the 2022 passage of the California Age Appropriate Design Act, which is currently on hold pursuant to a challenge in federal court.
It is also worth noting that although many states defer to COPPA's threshold age of 13 for regulating online activities involving children, some new state privacy laws are following California's lead in increasing the protection threshold up to age 16 and even 18 (like in Florida).
States expanding Coogan account protections
Companies and organizations that hire child performers are generally familiar with "Coogan" accounts, which are required in California and New York to ensure that child actors receive the income they earn. Per these laws, earnings are placed in a trust account for the child's benefit. However, Coogan account protections do not apply to payments made to child social media influencers who appear in digital content. Newer state laws seek to close this loophole and offer protections for both children's earnings and their online privacy when they are featured in online content.
Last year, Illinois became the first state to legislate child social media content1 by passing Illinois S.B. 1782. Effective January 1, 2024, the law requires that children under age 16 receive a percentage of earnings when individuals or families use a child's name, image, or likeness to create compensated online video content. Earnings are based on how often the child appears in online content and are required to be placed in trust for the child. Additionally, the law permits children over age 18 to take legal action against their parents if they appeared in monetized social media content and were not properly compensated. The California legislature is considering a similar proposal, S.B. 764, the Child Content Creators Act.
Proposals in Washington State ( H.B. 1627) and Maryland (Right to be Forgotten bill) would take these approaches further by not only protecting a child's earnings from social media activities, but also bolstering children's online privacy rights by giving them the right to request the permanent deletion of their names and likeness from any online content in which they appear, after turning 18 years old.
Companies and organizations that engage with children online, such as educational service providers or those that pay for social media content featuring children, such as with child influencers or talent, should pay close attention to these and additional new laws in the United States that are aimed at increasing protections for children and their online privacy.
Footnote
1. Specifically, S.B. 1782 only applies to Vloggers, as defined in 820 ILCS 205/0.5 or the minor engaged in vlogging.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
