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]

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.