Hrrrmmm...

[belleweather]

Does anyone who has been more closely following "SurveyFail" and it's attendant fall out know if the fact that collecting any sort of identifying or demographic information from those who may be under 13 is punishable under COPPA and that there may also be other legal liability based on the fact that minors are potentially being solicited regarding

Comments

[belleweather]

First, most of my COPPA background is in the legislative policy arena -- the ways in which COPPA allows the FTC to regulate the internet, so my understanding of the specifics of the law are a bit iffy. But I am pretty sure that even though it rests on the foundation of the commerce clause that it is not limited to commercial business. I don't see any limiting language in the reg to support the idea that it is -- especially since it's actual 'purpose' was to keep people from perving on kids in chat rooms.

While the survey wasn't aimed at kids, it sure wasn't placed or advertised in any way that made it not open to kids -- especially since it was posted to a lot of communities that aren't age-restricted (since the designers are morons and don't apparently get that all slash is not porn), so there was IMHO pretty ample opportunity for collection of data from minors, which in my reading of the regs means that they should have complied or at least disclaimed.

Which, you know, means absolutely nothing in the real world enforcement-wise, but is interesting to me in theory. Seeing as I'm a gignormous regulatory geek. :)

[rivkat]

15 USC 6501:
(2) Operator
The term “operator”-
(A) means any person who operates a website located on the Internet or an online service and who collects or maintains personal information from or about the users of or visitors to such website or online service, or on whose behalf such information is collected or maintained, where such website or online service is operated for commercial purposes, including any person offering products or services for sale through that website or online service, involving commerce [that Congress can constitutionally regulate]

It's in the statute. And that's not my understanding of the statutory purpose, which was not directed at molesters but at marketers. Personal information is defined so broadly that the anti-pervert interpretation doesn't make sense of the statute, either.

And "not aimed at kids" is enough to take you outside COPPA as long as you also comply with COPPA if/when you acquire actual knowledge that a child has provided personal information.

[belleweather]

My understanding if the legislative history is that the bill began as an outgrowth of some of the many failed attempts to regulate the internet in order to protect the children, and as the bill developed on the floor it ended up applying significantly more to marketing and information collection activities.

And thanks for the info about the use of the term operator. I'm still not sure that you can argue that the purpose here is non-commercial, since the survey it's self existed on a separate non-LJ website which was created and maintained for purposes of the survey which was being used to write the book. I also think there's a factual distinction between gathering material for a possible future book and gathering material very specifically for a book for which you have already been paid a substantial advance.

Since they're asking for age in the survey, it would be fairly easy for them to have actual information that someone >13 is posting. I'm not sure given the design fail in the survey if they could comply if/when they figured that out, even if you read "comply" to only mean removing that data, though. They had a hell of a time removing the data of adult participants who later asked that their data be deleted.

[rivkat]

It's plainly noncommercial in the First Amendment sense, but there might be uncertainty about whether the statute means "commercial" in that sense. For the record, the line that I think makes sense: commercial = selling stuff to visitors or selling visitors to advertisers; noncommercial: not doing that.

Regardless, I don't think there is a factual distinction between "I have an advance" and "I'd like to get paid," any more than there is a factual distinction between "I already have paying subscribers to my site" and "I'd like to have paying subscribers to my site." In the former case, I'd call it noncommercial, and in the latter commercial: it's method of making money, not hope versus reality, that should control.

If the law were about perverts, the commercial limitation--no matter how broadly construed--would make no sense.

We are in agreement, however, that if COPPA applies, they do have to get rid of that under-13 data when someone answers with an age under 13 and provides actual knowledge, no matter how hard it is. As far as I know, COPPA doesn't care how hard it is; you must do it, and if you do it, you're clear.

[rubymiene]

I don't think this would qualify as commercial even under a broad reading. I don't think there was advertising on the site, and they weren't planning on selling the actual responses, but rather the conclusions they were going to draw from the responses. The clause "including any person offering products or services for sale through that website or online service" makes Congressional intent rather clear, and it's aimed at something totally different.

[elfwreck]

It's very possible that "to gather data for our book, which we expect to make us a lot of money" counts as "commercial purposes." It's a bit of hairsplitting, but certainly more tenuous concepts have been upheld in court.

And gathering data about children's sexual activities is high on the list of Acts That Bring Down The Wrath Of Feds. (Not under COPPA, but other laws.)

AFIAK, this quiz didn't even say "You must be 18 or older to take this quiz."

[rivkat]

I'm not aware of any such interpretations in actual enforcement--if you are, I'd be very interested to hear about them. Hairsplitting about speech is often not a position courts want to be in. In IMS Health v. Ayotte, cert pending, the closest analogy I could find in my brief survey, there was a specific definition of "commercial purpose," which was limited to commercial speech, while the brief unlamented COPA did not define "commercial purpose" but did require anyone covered to be in the "business" of offering the services/goods at issue. Under neither definition would the survey be covered.

Likewise, though things like evidence-based sex ed are particularly controversial, and prosecutors regularly do stings for people soliciting sex from minors, I haven't seen "the wrath of the feds" against people collecting data about minors' sexual activities. I agree that it's hard to get funding for that, but people do publish data on sexual activity among minors and generally stay out of jail. See, for example, research cited by the Guttmacher Institute covering minors' reproductive and sexual behavior--these were people asking about minors' sexual activities, and they were barred by no law from doing so.