CLO #23 - Children & Privacy (fwd)

Gary Handman (ghandman@library.berkeley.edu)
Fri, 7 Mar 1997 08:49:37 -0800 (PST)

Hellow, all. I'm taking the liberty of forwarding an interesting article
from computer law observer which addresses the issue of kids and online
access. The issues and implications for those of use contemplating video
delivery on the web are obvious...

Cheers!

Gary Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley, CA 94720-6000
510-643-8566
ghandman@library.berkeley.edu

---------- Forwarded message ----------
Date: Wed, 05 Mar 1997 15:50:20 +0100
From: William S. Galkin <wgalkin@lawcircle.com>
To: lawobserver@charm.net
Subject: CLO #23 - Children & Privacy

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Published by
Challenge Communications

=============================================================
February, 1997 Computer Law Observer Issue No. 23
=============================================================
The Computer Law Observer is distributed monthly for free by Challenge
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***Recommended reading***

The following selections were distributed to members of the Computer Law
Observer Pro service and represent what we consider to be leading
current writing in the area of computer and Internet law. Subscription
information for the Computer Law Observer Pro service can be found at
the end of this message and at http://www.lawcircle.com/observer :

(2/17) " Is Software 'Speech'? from the Legal Times (Washington)
(January 27, 1997), by Benjamin Wittes

(2/24) "What Are the Crimes?" (Chapter 2) from Computer Crime: A
Crimefighter's Handbook, by David Icove, Karl Seger, and William
VonStorch, published by O'Reilly & Associates

(3/3)"Dealing With Copyright Aspects Of Computer-Aided Authorship," from
Computer Law Strategist (January, 1997), by Andrew J. Wu

(3/10) - Upcoming - Selections from March issue of the Cyberspace Law
Authorities Reports, published by Legal Authorities Network

++++++++++++++++++++++++++++++++++++++++++++++++++++++
COLLECTING AND USING INFORMATION ABOUT CHILDREN ONLINE
++++++++++++++++++++++++++++++++++++++++++++++++++++++
by William S. Galkin, Esq.
(biography at end)

In certain respects, the Internet resembles the wild west. The laws are
either undefined, or difficult to enforce. There are a lot of places to
hide, a lot of unsuspecting victims, and a lot of would-be information
highway robbers.

The most vulnerable travellers on the Internet are our children.
However, children, in many ways, also play an important role in the
future commercialization of the Internet. One study has found that
children between the ages of 4 and 12 influenced the purchase of $170
billion in products and services in 1995. This number may be increasing
by as much as 20% each year.

On January 6, 1997, the Federal Trade Commission issued a staff report
regarding Consumer Privacy in the Online Marketplace. The Report can be
found at the FTC's website (http://www.ftc.gov ) under "Conferences,
Hearings, and Workshops". This article focuses on the findings of the
Report relating to privacy of information about children gathered on the
Internet.

Protecting Children -

U.S. law provides special protections for children. For example, under
common law, children are permitted to "break" most contracts. Under
federal law, the Telephone Disclosure and Dispute Resolution Act of 1992
expressly prohibits advertising of pay-per-call 900 services to children
under 12, unless they are for educational services. Additionally, the
Children's Television Act of 1990 limits the amount of advertising that
can appear on television programs directed toward children. Furthermore,
the U.S. Supreme Court has recognized a Constitutional basis for the
right of a parent to direct and control the rearing of a child. See
Ginsberg v. New York, 390 U.S. 629, 639 (1968).

Industry groups have also imposed self regulations to protect children.
For example, the major television networks have adopted guidelines
prohibiting high-pressure sales techniques directed at children, such as
using the characters or the host of a show in ads that run during or
adjacent to the show.

Gathering Information -

Companies have long recognized the important role children play in
causing purchases to occur and have gathered information about children
for marketing purposes. Much of this information is gathered directly
from children through contests, collecting and sending in boxtops and
magazine subscriptions. Generally, the collection and use of this
information is not subject to government regulation.

The online collection and use of information about children is of much
more concern than what currently occurs offline. There are several
reasons for this. Much of the offline collection occurs with some
parental intervention and knowledge. For instance, if boxtops are mailed
out, the parent provides a stamp and therefore is aware that a letter is
going to be placed in the mail. However, the transmission of information
by a child online can easily occur without the knowledge of a parent.

Additionally, information can be much more easily elicited from a child
online. For instance, a child visits a child-oriented website where a
lovable cartoon character asks the child to provide personal
information, such as name, address, age, interests, as well as
information regarding the child's family. Information can also be
gathered through completing online guest books, corresponding with
fictional characters, participating in contests, bulletin boards and
chat rooms. The "send" button is pushed and the parent is never aware
that the communication occurred. What is more troublesome is that a
child can develop a relationship with a person online also without a
parent's knowledge. This would be much more difficult to accomplish
offline.

The interactive nature of websites also allow for higher levels of
contact than is available over other media such as television. For
instance, a website can store information about a child's preferences,
which then can be used to present information to a child upon a return
visit that reflects these preferences. This one-to-one contact enhances
the contact substantially above contact achieved through other media.

This interactivity can also provide benefits: content can be customized
to a child's interests which would create more interest, thereby
enhancing educational experiences and provide targeted, useful products
at better prices.

Use Of Information -

There is a range in the ways that information about children can be
used. On one end of the spectrum, there is little concern. This is where
information is gathered in a manner that does not personally identify
any individual child and is used for the purpose of studying how the
site is being used in order to modify and improve the site. On the other
end of the spectrum, sites may gather extensive information about
individual children and their families which is then used to market
directly to the children or to sell to others for marketing purposes.

Primarily, privacy groups would like to see provisions for requiring
parental consent before information is gathered from children online.
However, some of the difficulties in implementing this objective
include: (1) deciding what ages would require parental consent, (2) how
to verify that the age represented by a child online is the correct age,
and (3) how to determine whether the parent has actually consented, or
whether the child pretended to be the parent. Verification can possibly
occur through use of digital signatures, verified certificates or
encrypted identification systems - after these techniques have been
further developed.

Various Approaches -

The desire to grant parents control is generally accepted among both
privacy and commercial groups. The debates heat up when trying to
determine what mechanism to use to achieve this result. The options are
(1) industry self regulation, (2) government regulation and (3)
technological regulation.

Technological regulation is the most appealing because it can be quickly
implemented, reflects individual and consumer choice, spans national
borders and places a barrier between children and lawbreakers. For
instance, filtering technology that is currently being used to block
sites that have objectionable content can also be used to block
transmission by a child of specific information, such as e-mail or home
address or telephone numbers. Additionally, some programs can create an
audit trail which would allow a parent to see where the child has been
on the Internet and what information has been disclosed. However, some
people might be concerned that these methods will actually reduce the
privacy rights that a child should ordinarily enjoy with parents.

Self regulation by industry groups has been criticized as being
ineffective where children are involved. Especially, if the regulation
incorporates the opt-out approach adopted by the direct marketing
industry. "Opt-out" means that personal marketing information can be
used unless an individual takes the necessary steps to opt-out. Children
cannot be expected to take such "opt out" steps. Some suggest a
complete ban on collection of information from children. Others suggest
banning all direct e-mail to children without parental consent.

Two bills were introduced in the last session of Congress that deal with
privacy of information concerning children. One is the Communications
Privacy and Consumer Empowerment Act (H.R. 3685) introduced by
Representative Edward J. Markey (D-MA). This bill would require the
Federal Trade Commission to determine whether parents currently have the
ability to exercise privacy rights regarding their children, and if not,
determine how to provide these rights, by rulemaking or otherwise.

The Children's Privacy Protection and Parental Empowerment Act of 1996
(H.R. 3508) was introduced by Representative Bob Franks (R-NJ). This
bill would prohibit, without the written consent of a parent, the sale
of personal information about children, and use of information,
collected from children through games, contests or other means, to
contact a child except in connection with such game or contest.

Everyone agrees that children need special protection. How to get there
is the question.

ABOUT THE AUTHOR:

Mr. Galkin can be reached for comments or questions
about the topic discussed in this article as follows:

E- MAIL: wgalkin@lawcircle.com
WWW: http://www.lawcircle.com/galkin
TELEPHONE: 410-356-8853/FAX:410-356-8804
MAIL: 10451 Mill Run Circle, Suite 400
Owings Mills, Maryland 21117.

Mr. Galkin is an attorney who represents small startup,
midsized and large companies, across the U.S. and
internationally, dealing with a wide range of legal
issues associated with computers and technology,
such as developing, marketing and protecting
software, purchasing and selling complex computer
systems, launching and operating a variety of online
business ventures, and trademark and copyright
issues. He is a graduate of New York University School
of Law and the adjunct professor of Computer Law at the
University of Maryland School of Law.

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