Before the Federal Trade Commission
June 11, 1999 Comments of Children's Television Workshop Children's Television Workshop submits these comments in response to the Federal Trade Commission's Notice of Proposed Rulemaking ("NPRM") on the Children's Online Privacy Protection Rule. The proposed rules seek to implement the Children's Online Privacy Protection Act of 1998 ("the Act"). I. Introduction A. Who is Children's Television Workshop? Children's Television Workshop ("CTW") is a not-for-profit company whose mission is to use media to educate and delight children and families around the world. Founded in 1968 to experiment with television's capacity to help children learn, CTW continues today to set global standards for excellence in programming for traditional and new media, publishing, product licensing, and community outreach for children from birth to age 12 and for the adults who care for them. Key to CTW's success is a pioneering blend of research, content, and production in every media product. The "CTW Model" is a dynamic, collaborative process in which experts -- educators, researchers, psychologists, child development specialists, and others -- determine curricular goals that reflect children's cultural, social, and educational needs. These goals are then translated by producers, directors, writers, and artists into media that engage and delight as they educate and inform. CTW is about making a difference in the lives of children and families -- a difference that results in improved learning. CTW's educational efficiency is well documented in the more than 1,000 studies on the record of Sesame Street alone. Three of the most recent demonstrate conclusively that the series makes a significant and lasting contribution to children's cognitive and social development. B. CTW's Online Philosophy CTW’s website, called CTW Family Workshop (www.ctw.org), delivers a unique approach to the Internet: using technology to bring families together to learn and have fun. The Internet can be a wonderful place for families to interact, connect and learn together. As more and more families go online, CTW has created an environment just for them. At our site, parents can discover how to get the most out of the Internet while spending quality time with their kids. CTW Family Workshop's original and highly interactive learning opportunities are designed for parents and children to explore together. Our goal is to enrich the time families spend together, both online and off. CTW Family Workshop has something for every member of the family. Perched on a parent's lap, preschoolers can share in the fun and learning. For this age group, there are stories to create, games to play, and interactive adventures to explore -- all accompanied by additional learning suggestions for parents developed by a trusted team of educational specialists. These offline activities, recommended reading, and printable coloring pages ensure that the fun and discovery continue away from the computer. For older kids, we offer Kid City Sticker World, a unique online community where 6 to 14-year-olds can build their own Web pages, play challenging interactive games, and collect and trade virtual stickers. All this occurs within a safe and educational environment. We offer features for parents including tips to help them become as Web-savvy as their kids and practical articles from Sesame Street Parents Magazine on everything from the first day of school, to picky eaters, to discipline dilemmas. Parents will also find trustworthy product reviews, polls, and engaging discussions. II. Balancing Competing Interests CTW supports the purpose of the Children’s Online Privacy Protection Act to protect the privacy of children online. Privacy rights are fundamental rights, and their protection in cyber-space is no less important than their protection in the physical world. We believe that parents and guardians should be imbued with the responsibility and authority to elect, on behalf of their children, whether and under what circumstances, if any, to disclose personal information. At the same time, CTW believes the Internet has enormous potential as an educational medium. The educational potential of the online experience is, in our view, dependent in great part on the Internet’s versatility as a tool to communicate to and hear from the online user. The Internet stimulates the natural curiosity of its users, particularly children, and empowers them to explore and communicate. For the Internet to remain a place of self-expression and educational exploration for children, it must retain its ability to take kids quickly, simply and as directly as possible to the sites and activities where they want to go, and permit them to interact with those sites and services in as natural, open and easy a fashion as possible. The Internet’s potential as an educational tool increases, in our view, with the ability of the service provider to know something about the person, be it an adult or a child, who sits at the distant computer terminal. Knowing some personal information about a child who uses our site is an important tool for determining his or her needs, abilities and preferences. Information such as a user’s age (or grade level), subjects of interest, number and age of siblings, country or region of domicile, whether or not attending preschool, etc. will enable CTW to more directly tailor our educational content for such users. And being able to alert a child through direct online communication that we are offering educational activities that are of special interest to him or her at our site is in our view a particularly effective means of engaging kids in the educational online experience. In addition to customizing online content for children, it is also valuable to personalize it. Children would feel far more welcome and personally connected to our site if they could be addressed directly and personally by name. Young children in particular love even simple forms of personalization such as a welcome greeting or birthday greeting in the child’s name sent to the child’s email address. The challenge, then, for the Commission (as well as for online service providers that value both the educational potential of the Internet and the privacy of children and families), is to implement effective rules to protect children’s privacy without unduly interfering with the educational potential of the Internet. Our comments below attempt to articulate approaches to the Act that appropriately balance these interests. III. Personal Information Collected at Family Sites The Act recognizes that there are online sites and services that are intended to reach both parents and children, and explicitly provides that the Act applies only to the portions of a site aimed at children and not to the portions of a site aimed at adults. Consequently, the Act regulates only a "website or online service directed to children" and defines such a site or service as a "website or online service, or portion thereof, that is targeted to children." The NPRM endorses this distinction, and suggests:
The CTW Family Workshop website contains portions aimed at parents and portions aimed at children. What perhaps distinguishes our site from most other "family" sites is that our site is an integrated family site in that many areas of our site – including the home page and higher level menu pages – are designed to be used by both parents and children interacting together. Our site is designed to use the Internet to help bring families together and to support family interactions. We will collect personal information about parents and their families only from adults and only in the adults’ portions of our site, not in the children’s portions, nor in the portions of our site designed to be used by parents and kids together. Therefore, we believe that under the Act and the Commission’s approach to the regulations quoted above, CTW is entitled to rely (in the absence of any information that would give us reason to suspect otherwise) on the assumption that an online provider of such information is a parent and not a child. We also believe that the multi-factor, flexible test described in the NPRM should be sharpened in focus to provide clearer guidance as to what elements a mixed-use site should employ in order to accept personal information within its parent portions without the need for additional parental verification. Accordingly, we urge the Commission to make clear that a family site gathering personal information in portions of its site dedicated exclusively to adult content should be entitled to assume that the person providing the information is a parent under the following circumstances:
We believe that the presence of these five elements is sufficient to reasonably establish that the provider of the information in the adults’ portion of the site is an adult rather than a child. This presumption will put an integrated family site more on a par with parents-only sites in collecting personal information from parents. Moreover, while the NPRM identified the use of animated characters as indicative of whether a site or portion thereof is intended for children, we believe that the mere presence throughout an integrated family site of well-known trademarks and characters should not disqualify the adult portion of the site from the presumption so long as it otherwise squarely meets the above criteria. Families expect to see familiar characters not only in the children’s portions of our site but in the adults’ portions as well. Indeed, Sesame Street, which has from its inception been designed to be viewed by parents and children together, is one of a number of properties that historically use characters in addressing the entire family, parents and their children. Sesame Street Parents Magazine is a good example of this usage. Accordingly, the use of characters in the adults’ portion of the site should not in itself make unreasonable the assumption that a provider of personal information in the adults’ section is an adult. CTW does agree with the Commission, however, that where characters, games, or child-oriented activities are used in the parents’ portion of the site to entice a child rather than a parent to enter that portion, then it is no longer reasonable for the online service to assume that the person providing personal information online is in fact an adult. This is particularly true if the webpage that solicits personal information is constructed in such a fashion that characters or games are used to actually obtain the information sought (e.g., using an animated character to ask for the information). In such instances, the adults’ portion of the site should be deemed to be targeted to children, and the information provided should require additional verification that in fact an adult has provided it. We urge the Commission to adopt the five elements outlined above to guide online service providers as to what characteristics are important in distinguishing parents’ portions from kids’ portions of integrated family sites or services. It is important that these elements be clear, so that integrated online sites and services may communicate online with parents about their needs and the needs of their families as freely as non-integrated sites and services, which are not covered by the Act at all. IV. Verifiable Consent One of the more difficult issues in the Act is what constitutes "verifiable parental consent" to the disclosure of a child’s personal information. The drafters of the legislation were legitimately concerned that unless implementing regulations adequately dealt with the ease with which children can "impersonate" their parents on the Internet, the entire statutory construct -- namely, that only parents can determine how their children’s privacy rights will be exercised -- would prove unenforceable. At the same time, Congress, at least implicitly, recognized that the imposition of too zealous a regime of parental verification would unduly burden online interactions, impeding the very swiftness and spontaneity that make the Internet such an attractive medium in the first place. For this reason, Congress carefully defined the term "verifiable parental consent" as including "any reasonable effort (taking into consideration available technology)" to ensure genuine parental consent. 15 U.S.C. § 6501(9). The legislative history called for flexibility in interpreting the obligation, particularly in light of prevailing technological means of doing so. Bryan Statement at S. 11657. Mindful of this admonition, the NPRM asked a series of questions designed to elicit comment as to the just how flexibly the verifiable parental consent standard should be. (NPRM, Questions 12 through 22). CTW believes that the standard should indeed be as flexible as possible without undermining the ability of parents to truly retain the authority and discretion to grant or withhold, on behalf of their children, the disclosure of personal information. In question 14 of the NPRM, the Commission asked whether the degree of flexibility in obtaining verification of parental consent should increase if the information is to be retained only by the service provider, and not shared with third parties. We agree with that approach, and go one step further -- we believe that flexibility in verifying parental consent should not only be related to the use for which the information is sought, but to the type of information requested as well. Just as the risk to privacy is reduced where the personal information is retained only by the service provider, so also is the risk to privacy reduced when the personal information sought is narrow, namely a child’s first name and email address (and not a telephone number or home address). Thus, when only a first name and email address is sought to enable the service or site, for example, to communicate with the child in the future and enhance the child’s experience, and the information will not be disclosed to any third party, the burden of parental verification should be more relaxed. If the personal information is to be shared with third parties, the verification obligation should increase, and when information disclosing the child’s first and last name, telephone number or home address is sought, the online site or service should approach verification of parental consent with particular care. If this approach is acceptable, then the Commission should consider promulgating regulations that offer a sliding scale for verification depending on the degree of personal information sought and whether the information will be shared with any third party. We can envision circumstances where the narrowness of the information requested and the limitations on its use could justify online means of verifying parental consent. We look forward to reviewing the submissions of the industry and experts on this issue, and urge the Commission, in addition to the proposed workshop, to entertain formal reply comments on this and other key matters. We also support the requirement of the Act that if any collection, use and/or disclosure of personal information is made that the parent has not previously consented to, it should require additional parental consent. We urge that in the initial consent parents should be free to designate the manner in which they can give any subsequent consent including by email if they so choose. In connection with Question 11 in the NPRM, we believe that re-contacting parents for consent should not be necessary simply because of a merger, joint venture or other change in the corporate entity operating the site; additional consent should be required only if such change will result in personal information being collected, used and/or disclosed in a way not previously consented to by the parent. V. Conclusion In conclusion, we urge the Commission to identify the characteristics that an integrated family site should adopt in order to collect personal information from parents in the parenting portions of the site without additional verification. We also ask the Commission to entertain further discussion on the issue of verifiable parental consent and the concept of employing a sliding scale depending on the degree of personal information sought and whether the information will be shared with any third party. Respectfully submitted, Children’s Television Workshop /s/____________________________________ /s/_____________________________________ June 11, 1999 |