The Federal Trade Commission has told the U.S. Court of Appeals for the Ninth District that the Children's Online Privacy Protection Act (COPPA) does not preempt state privacy protections for teenagers' online information.
That came in an amicus filing to the court in a case involving Facebook's Sponsored Stories feature that allegedly "deploys" users' names and images without their consent, which would violate California privacy and unfair competition law, said the FTC.
While Facebook settled the class action suit, which was filed in district court, some of the members of the class objected and challenged the settlement, saying Facebook had not ensured that valid parental consent would be needed for Sponsored Stories. The court rejected that appeal, saying that COPPA "may 'bar any efforts by plaintiffs to use state law to impose a parental consent requirement for minors over the age of 13.' COPPA's online privacy protections only apply to Web sites targeted to kids under 13."
The FTC, which enforces COPPA, disagreed, It said that statement was flat out wrong. "The Federal Trade Commission submits this amicus brief to oppose that view of federal preemption. Nothing in COPPA's language, structure, or legislative history indicates that Congress intended for that law to preempt state law privacy protections for people outside of COPPA's coverage, including teenagers," the commission said, without commenting on how the court should ultimately rule.
The Center for Digital Democracy, Public Citizen and the Children's Advocacy Institute at the University of San Diego, had asked the FTC to weigh in given that it is the expert agency implementing the COPPA protections.
"The Federal Trade Commission's brief in this case is a major development for the protection of teenagers' privacy," said CDD lawyer Hudson Kingston in a statement. "Facebook's attorneys tried to get this settlement through by using a law meant to protect children to block state law protection of teens – now the agency made clear that this is a wrong reading of the law, this settlement clearly harms teenagers by ignoring their rights under state laws. States play a vital role protecting teens from privacy violations. Settlements that are based on illegality cannot stand. While the agency did not officially support either party, its reading of the law undermines one of Facebook’s key arguments that it can get out of this case without first addressing its weak privacy protections for teens. We hope that the Ninth Circuit accepts this authoritative view and throws out the settlement."