Facing State Patchwork, Companies Aim for 'Strictest' Definition of Child
With different definitions of who counts as a child in various states, more companies are treating anyone younger than 18 as a kid, said privacy lawyers and professionals during an Interactive Advertising Bureau webinar Wednesday. Davis+Gilbert attorney Gary Kibel predicted that disagreement on the age issue could become yet another obstacle to passing a national data privacy law.
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Kids privacy laws across the U.S. disagree on whether a child is someone under 13, 16 or 18 years old. As a result, “most companies want to go with a national approach, because it's harder to do a state-by-state approach,” said Kibel. “And it's going to become much, much harder to retarget anybody between the ages of 13 and 17 with advertising due to these different standards."
Allison Fitzpatrick, a Davis+Gilbert lawyer who specializes in online marketing, concurred. “My clients are more inclined to treat all teens as under 18 and not distinguish between 13, 14 [and] 15,” she said. “It's just too much of an effort -- too many resources go into it -- and it's just not worth the risk right now, particularly with all these laws. So they treat … all teens under 18 the same.”
Nur-ul-Haq, kids’ privacy and online safety officer for Paramount, also agreed. “How much value is there in being able to target these particular audiences, versus what the risk is? And if you're looking at some of the fines that the FTC has imposed for getting it wrong, they're pretty significant.” Balancing one’s “risk tolerance, taking a position where you're not going to collect or target under-18 audiences just makes a whole lot of sense.”
Besides, “having to build out all these tools and functionalities in your products to be able to address some of these concerns that are raised by the regulators and these requirements under the laws” is “a lot of work and a lot of labor,” said Haq. “Unless your business is really focused on that target audience in particular, it doesn't necessarily add a lot of value to your product for over-18s, where those … functionalities may not necessarily be necessary or even wanted.”
“Aim for the strictest,” agreed TransUnion Assistant General Counsel Pat Thompson. “Keep it simple, because [companies] all have so many other regulatory things they're trying to satisfy.”
Meanwhile, it seems increasingly unlikely that one U.S. law will replace the current patchwork of state laws, said Kibel. “We all sit here and hope and pray for a national privacy law to solve all of our problems,” but the rising issue of children's online safety could make passing one even harder.
The “two big stumbling blocks” for Congress passing a consumer privacy law used to be deciding whether it should preempt state privacy laws and if it should contain a private right of action, said Kibel. “I think this issue -- minors -- now creates a third stumbling block, because if there was going to be a proposed federal law [that] treats minors as anyone under 16, the states that go to 18 are going to be very upset about it.”