Will the World of WiFi Broaden the Applicability of COPPA Requirements?

Posted by Teena Lee

As more neighborhoods offer WiFi capabilities, and as more mobile devices primarily designed for children offer access to WiFi networks, there appears to be a potential slippery slope that will develop over liability under the Children’s Online Privacy Protection Act (“COPPA”).

Effective starting in 2000, COPPA requires operators of commercial websites or online services directed at children under the age of 13 that collects personal information from children to (1) provide notice on its site of what information is collected from children, how that information is used and the operator’s disclosure practices for such information; (2) obtain verifiable parental consent for the collection, use or disclosure of the information collected from children; (3) provide, upon request of a parent whose child provided personal information and upon proper identification of that parent, a description of the specific types of personal information collected from that child and afford the parent the opportunity to refuse the operator’s use or maintenance in retrievable form or future online collection of personal information of that child; and (4) establish and maintain reasonable procedures to protect the confidentiality and security of the personal information collected from children. The operators are further prohibited from conditioning a child’s participation in the site’s offerings or activities on the child disclosing more personal information than is reasonably necessary for participation. COPPA applies not only to those operators of sites primarily direct to children but also to those that have “actual knowledge that [they] are collecting personal information from a child”. The statute in its entirety is available here

Today’s mobile devices now allow children using them to log onto the Internet or connect to a peer-to-peer chat network. For example, Sony’s PlayStation portable system and Microsoft’s upcoming Zune portable media player both enable children to join online networks via built-in WiFi. Thus, children with these devices can potentially access any number of sites and/or the Internet in general outside their parental view and/or control. Furthermore, some of these portable devices offer content, communication software and may advertise downloads to children for purchase.

Businesses are already recognizing the incredible advertising potential these game devices with WiFi capabilities have: McDonald’s teamed up with Nintendo to support Nintendo’s DS device from WiFi hotspots in its restaurants so that children can locate and connect with other children with DS devices while at the restaurant.

With this increased online access to children, while clearly the traditional operators of sites aimed at children remain subject to COPPA regulations, the applicability of COPPA may broaden to the suppliers of the gaming devices that provide WiFi capabilities on either a direct or contributory liability theory. For example, as noted above, some of the portable devices offer content and entice children to purchase downloads – it appears that COPPA regulations may apply to the manufacturers of those devices, assuming that the manufacturers themselves are supplying the content and advertisements. Those manufacturers may also be subject to COPPA on a contributory liability theory on the basis that while they are not provided the content and advertisements themselves, they are providing the technology to do so. Arguably, children may not otherwise have access to such content without the freedom from parental control that WiFi devices provides that traditional PCs or non-WiFi devices do not. On the other hand, those manufacturers may not be subject to any contributory liability based on the same theory established in the Sony Corp. of America v. Universal City Studios, Inc. case, where the manufacturer of VCRs was not found contributorily liable for infringement of copyrights in motion pictures for merely providing the device that allowed users to copy the motion picture without authorization and contributed nothing more to the user’s allegedly infringing behavior. 464 U.S. 417 (1984). The manufacturers of gaming devices with built-in WiFi capability may claim that they are merely providing the device, but if as in the example above, they are specifically targeting children with content and advertisements to be accessed through these devices; do they move outside of the Sony defense? And, what about entities in similar positions as McDonald’s who also provide the environment for online access to children? Or, those companies that provide the software that would allow a child with a Sony PSP to be able to get online?

Indeed, a slippery slope it may be, and only time will tell as technology advances and access is made even more readily available.