June 11, 1999
Mr. Donald S. Clark
Re: Children's Online Privacy Protection Rule -- Comment, P994504
Comments of JuniorNet Corporation
Dear Secretary Clark:
JuniorNet Corporation submits these comments in response to the Notice of Proposed Rulemaking published in the Federal Register on April 27, 1999 (64 Fed. Reg. 22749) ("Notice").
JuniorNet, the first advertisement-free online interactive learning service for children, provides access to content from top brand names in childrens publishing and family entertainment within a bounded environment. Using hybrid CD-ROM/online technology, JuniorNet employs a client-side firewall that acts as a barrier between the JuniorNet network and the Internet. While logged onto JuniorNet, a child is not able to access the World Wide Web, and can receive email only from email addresses pre-approved by his or her parents.
JuniorNets online service is supported by a companion website for parents and other adults, at www.juniornet.com. The website describes the online service and offers corporate information, member support, technical support, frequently asked questions (FAQs), and other content for parents and other adults. There also is a password-protected area for the parent, guardian, or other responsible adult who installs and sets up the online service. Although the website solicits personal information from adults in several different places (such as a "Parents Poll"), it seeks no information from children.
At JuniorNet, our concern for the safety and privacy of children is paramount. We created our new online service in response to parents demands for a safe way for children to get online. We are proud to provide this safe, fun, active environment that encourages learning through exploration and discovery. Our objectives, therefore, are very much aligned with those of the Commission in issuing the proposed rules. However, we are concerned that the proposed rules may reach beyond their intended targets websites and online services directed to children and impose requirements on websites, such as JuniorNets public website at www.juniornet.com, that are directed to parents and other adults. We propose the following: (1) the Commission should weigh all of the factors listed in Section 312.2 of the proposed rules in determining whether a particular site or online service is "directed to children"; and (2) sites that are expressly directed to adults should be excluded from coverage.
1. Meaning of "directed to children"
Section 312.2 of the proposed rules provides that, in determining whether a website is "directed to children" and therefore subject to the rules requirements -- the Commission will consider a list of factors: "its subject matter, visual or audio content, age of models, language or other characteristics of the website or online service, . . . whether advertising promoting or appearing on the website or online service is directed to children . . .[,] competent and reliable empirical evidence regarding audience composition; evidence regarding the intended audience; and whether a site uses animated characters and/or child-oriented activities and incentives."
All of the listed factors should be taken into account. It is unclear from the text of this proposed rule how the Commission will weigh the listed factors. As written, the rule could be applied to cover any number of sites clearly aimed at adults rather than children. For example, if meeting only one of the listed factors automatically means that a site is "directed to children," many sites that as a practical matter plainly are not directed at children will be swept within the rules.
We suggest that the definition of "website or online service directed to children" be amended to reflect that a website that satisfies only one of the listed factors will not automatically be deemed "directed to children." Instead, the rule should state that, in determining whether a website or online service is "directed to children," the Commission will take all of the listed factors into account.
2. Exclusion of sites directed to adults
We are also concerned that this proposed rule could have the unintended effect of imposing requirements on websites specifically directed at parents and other adults, although marketing products for children. Parents considering whether to purchase a product or service for their children are likely to want to preview the product before buying it. Websites marketing childrens products to adults, therefore, often contain material that meets one or more of the factors listed in the proposed rule.
For example, JuniorNets public website introduces parents to "Clik," an animated character that welcomes children when they log onto the online service. It also contains descriptions, including illustrations, of the activities that are available on the online service. None of the websites pages, however, contain an actual game or activity for children. Moreover, in soliciting subscriptions, the website seeks information only from adults, and specifically requests that anyone under 18 ask an adult to sign up. Despite these clear indicators that JuniorNets website is aimed at parents and other adults rather than children, the sites inclusion of samples from its online service may bring it within the proposed definition of a website "directed to children."
Websites that are expressly directed to adults should be excluded from coverage. We suggest that websites that are clearly directed at adults, although marketing products for children, be expressly excluded from the definition of websites "directed to children." Such an exclusion finds support in a similar exclusion that the FCC has made in the broadcast context. See Final Rule, Broadcast and Cable Services; Childrens Television Programming, 56 Fed. Reg. 19,611, 19,611-12 (1991) ("if a station with an all-advertising format directs commercials for childrens products to adult viewers/purchasers, these commercials would not be considered as aired in connection with programs originally produced and broadcast for an audience of children 12 years of age and under.").