Initial Thoughts about the Markey-Barton ‘Do Not Track Kids’ Bill

by on May 6, 2011 · 2 comments

Reps. Edward Markey (D-Mass.) and Joe Barton (R-Texas) have released a discussion draft of their forthcoming “Do Not Track Kids Act of 2011.”  I’ve only had a chance to give it a quick read, but the bill, which is intended to help safeguard kids’ privacy online, has two major regulatory provisions of interest:

(1) New regulations aimed at limiting data collection about children and teens, including (a) expansion of the Children’s Online Privacy Protection Act (COPPA) of 1998, which would build upon COPPA’s “verifiable parental consent” model; and (b) a new “Digital Marketing Bill of Rights for Teens;” and (c) limits on collection of geolocation information about both children and teens.

(2) An Internet “Eraser Button” for Kids to help kids wipe out embarrassing facts they have place online but later come to regret.  Specifically, the bill would require online operators “to the extent technologically feasible, to implement mechanisms that permit users of the website, service, or application of the operator to erase or otherwise eliminate content that is publicly available through the website, service, or application and contains or displays personal information of children or minors.” This is loosely modeled on a similar idea currently being considered in the European Union, a so-called “right to be forgotten” online.

Both of these proposals were originally floated by the child safety group Common Sense Media (CSM) in a report released last December.  It’s understandable why some policymakers and child safety advocates like CSM would favor such steps. They fear that there is simply too much information about kids online today or that kids are voluntarily placing far too much personal information online that could come back to haunt them in the future. These are valid concerns, but there are both practical and principled reasons to be worried about the regulatory approach embodied in the Markey-Barton “Do Not Track Kids Act”:

  • It is very hard to imagine how most elements of this new “Do Not Track Kids” regulatory regime would work without requiring mandatory online age verification of all websurfers, which would raise serious constitutional issues. Previous efforts to age-verify websurfers (namely, The Child Online Protection Act or COPA) have been found to violate the First Amendment and also to raise different privacy concerns. By contrast, the Children’s Online Privacy Protection Act (COPPA) partially avoided this problem by limiting its coverage to kids 12 and under and did not mandate strict age verification. The Markey-Barton bill seems to imagine that the COPPA regime can simply be expanded without serious constitutional scrutiny (or economic cost, for that matter). The sponsors are wrong. Their bill puts COPPA on a collision course with COPA because it would necessitate expanded age verification in order to be effective.
  • An Internet “Eraser Button” is similarly challenged by practical realities and principled concerns. It’s unclear how to even enforce such a notion. Moreover, if it could be enforced, it would raise profound free speech issues since it is tantamount to digital censorship and specifically threatens press freedoms. And the economic costs of such a mandate — especially on smaller operators — could be quite significant. See my recent Forbes essay for a discussion of those problems.
  • Although some of the concerns that motivate the “Do Not Track Kids Act” are understandable, there are two very different models for how we might address these problems: ‘Legislate & Regulate’ vs. ‘Educate & Empower.’ The latter is the superior framework for dealing with these concerns in light of the practical and principled problems associated with the former.

I will expand upon these concerns in a follow-up post, but for now I would direct your attention to the 36-page white paper that Berin Szoka and I released two years ago on this topic:”COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.” It explains why this issue is so complicated and raises so many constitutional red flags.


Additional Reading:

on COPA:

on Eraser Button:

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