Be Your Kids’ Safety Net on the Internet

COPPA

In most cases, COPPA and the Rule require operators to get verifiable parental consent before collecting personal information from children under 13.

Certain, limited exceptions, sometimes referred to as the Rule’s “email exceptions,” let operators collect a child’s, and sometimes a parent’s, online contact information before obtaining parental consent. 16 C.F.R. § 312.5(c). These exceptions include:

(1) collecting the name or online contact information of a parent or child for the sole purpose of providing direct notice and obtaining parental consent. If consent has not been obtained after a reasonable time from the date the child’s information was collected, the website operator must delete the child’s personal information from its records. See § 312.5(c)(1);

(2) collecting a child’s online contact information to respond once to a specific request from the child, as long as the information provided by the child is not used to re-contact the child and is deleted immediately after responding to the one-time only specific request. See §312.5(c)(2);

(3) collecting a child’s and a parent’s online contact information to respond more than once to a specific request from the child (for example, if the child requests to be subscribed to an online newsletter or site updates). Under this exception, once the operator has provided notice to the parent of its information collection practices, the operator is not required to obtain the parent’s affirmative consent, and the parent must contact the operator to discontinue repeated communications. Of course, the parent may contact the operator at any time and request that the information be deleted and the contact halted. A website operator may avail itself of this multiple-contact exception only if, immediately after the first communication to the child, the website operator sends the required direct notice to the parent (for example, by use of the parent’s email address, or by postal mail, but not by using the child’s own online contact information) in order to provide the parent with an opportunity to opt-out of any further use of the child’s online contact information and to order its deletion. See §§ 312.3(c) and 312.6(a)(2);

(4) collecting a child’s name and online contact information where necessary to protect the safety of a child participating on the site or online service and the operator uses reasonable efforts to provide a parent with notice as described in § 312.5(c) of the Rule. The notice to a parent must state that the operator has collected the child’s name and online contact information to protect the safety of the child, that the parent may refuse to permit the use of the information and require its deletion, and that if the parent fails to respond, the operator may use the information for the purpose stated in the notice. Note also that a website operator who collects a child’s name and online contact information under this “safety of a child” exception may only use the child’s information for the sole purpose of protecting the child’s safety, may not use the information to re-contact the child or for any other purpose, and may not disclose the child’s information on its website or online service.

(5) collecting a child’s name and online contact information for the sole purpose of protecting the security or integrity of the site, to take precautions against liability, to respond to judicial process, or to provide information to law enforcement agencies or for an investigation on a matter related to public safety.

The requirements for each of these exceptions are set forth in Section 312.5(c) of the Rule.


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