This article was published on September 29, 2012

Facebook claims proposed privacy rules for minors violate the First Amendment

Facebook claims proposed privacy rules for minors violate the First Amendment
Alex Wilhelm
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Alex Wilhelm

Alex Wilhelm is a San Francisco-based writer. You can find Alex on Twitter, and on Facebook. You can reach Alex via email at [email protected] Alex Wilhelm is a San Francisco-based writer. You can find Alex on Twitter, and on Facebook. You can reach Alex via email at [email protected]

Facebook has a material interest in keeping its userbase between the ages of 13 and 18 engaged with its service, as they not only constitute a marketable demographic, but also represent its future adult audience; lose the kids, and the site could slowly see its growth decline as its funnel of new users slows.

The Federal Trade Commission (FTC) has proposals in the works to greatly change how online privacy works for minors and other youths, in a bid to protect the privacy of children. A worthy goal, certainly. However, the structure of its proposals have some, Facebook included, worried.

Sweeping changes to what sort of data can be collected, stored, and used could lead to a marked decline in revenue for social networks and advertising platforms and systems that depend on just that form of information.

If you are in the mood for an exceptionally long, and politely worded push-back against what the FTC has proposed, Facebook’s full submitted comment can be read here.

However, in the interest of time, I’ll condense. Component to the FTC’s ideas, direct parental permission would be required for many currently common practices; think cookie tracking and the like. For more detail, the New York Times has a great introductory write up.

Facebook, however, wants to ensure that the age cut-off for any such activity is 13, the minimum age required to join its service. From its comment:

[C]lear statutory language precludes the Commission from regulating the collection, use, or disclosure of personal information from a user who is 13 years of age or older, even if this collection or  disclosure occurs on websites that are directed to children.

The company therefore argues that so long as data collected is from kids over 13, the FTC can’t say a thing about it. How does Facebook itself know that its users are over that threshold?

For registered Facebook users, Facebook has actual knowledge that the user is at least 13 years old because he or she has provided a birthdate during the registration flow indicating an age of 13 years of age or older.

Thus, Facebook’s practices are in the clear, as anyone who could be tracked through its system is over the threshold of ‘leave us the hell alone.’

However, the company has more to say on the matter. Recall before when we stated that Facebook has an incentive to keep its users engaged with its platform? That sort of activity has a cumulative effect, building a dataset over time, deepening a connection to the service. Thus, Facebook wants users as early as possible, allowing them to begin investing their time on the double.

Here’s Facebook on the potential restriction of the ability of those 13 years of age to use its platform [Bold: TNW]:

Because the Commission’s proposal would restrict the ability of users who are 13 years old or older to “Like,” comment on, or recommend the websites or services on which those plugins are integrated, it would infringe upon their constitutionally protected right to engage in protected speech.

As we and others have explained elsewhere, a user’s decision to click on a social plugin is constitutionally protected speech that generates expressive content on the user’s Profile (or Timeline) Page, as well as similar content in the News Feeds of the user’s Friends.

The Supreme Court has recognized on numerous occasions that teens are entitled to First Amendment protection. Furthermore, the Court has held that statutes should be interpreted to avoid raising constitutional problems.

A government regulation that restricts teens’ ability to engage in protected speech—as the proposed COPPA Rule would do—raises issues under the First Amendment.

That’s sharp.

TNW does not claim to be the hub for all things legal. However, despite arguing in its comments against other components of the proposed legal changes, Facebook does argue in a way that protects itself specifically, mounting an argument that its service – almost uniquely – knows that its users are over the age of 13, and that as such, it’s hands off how it manages their data.

Of course, Facebook is in no way to be dinged for playing self defense. However, the rest of its comments contain arguments that will impact other platforms, especially its notes on plugin, and legal responsibility potentially contained herein to such pieces of code.

As the FTC wrests with these issues, TNW will keep you up to date. For now, Facebook has fired the ball back to the government’s court.

Top Image Credit: Cliff

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