Saturday, May 30, 2020

FTC Provides Guidance on COPPA and Voice Recordings

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Richard B. Newmanhttp://www.hinchnewman.com
Richard B. Newman is an Internet Lawyer at Hinch Newman LLP focusing on advertising law, Internet marketing compliance, regulatory defense and digital media matters. His practice involves conducting legal compliance reviews of advertising campaigns across all media channels, regularly representing clients in high-profile investigative proceedings and enforcement actions brought by the Federal Trade Commission and state attorneys general throughout the country, advertising and marketing litigation, advising on email and telemarketing best practice protocol implementation, counseling on eCommerce guidelines and promotional marketing programs, and negotiating and drafting legal agreements.

The Federal Trade Commission is providing additional guidance on how the Children’s Online Privacy Protection Rule applies to the collection of audio voice recordings by organizations covered by the law, which requires certain operators of commercial websites or online services to obtain parental consent before collecting personal information from children under 13.

The FTC updated the COPPA Rule in 2013, adding several new types of data to the definition of personal information, including a photograph, video or audio file that contains a child’s image or voice, to data already covered, such as a name, address or Social Security number.  Naturally, questions have arisen about the application of this requirement when a child’s voice is collected for the sole purpose of instructing a command or request.

In a new policy enforcement statement, the FTC noted that the COPPA rule requires websites and online services directed at children to obtain verifiable parental consent before collecting an audio recording.  The Commission, however, recognizes the value of using voice as a replacement for written words in performing search and other functions on Internet-connected devices.

The FTC has stated that it will not take an enforcement action against an operator for not obtaining parental consent before collecting the audio file with a child’s voice when it is collected solely as a replacement of written words, such as to perform a search or to fulfill a verbal instruction or request – as long as it is held for a brief time and only for that purpose.

The Commission has noted that there are important limitations to this policy.

The policy does not apply when the operator requests information via voice that would otherwise be considered personal information, such as a name.

In addition, an operator must still provide clear notice of its collection and use of audio files and its deletion policy in its privacy policy.

Also, the operator may not make any other use of the audio file before it is destroyed and the policy does not affect the operator’s COPPA compliance requirements in any other respect.

The FTC continues to actively enforce the COPPA Rule, including a settlement reached with a mobile advertiser that was alleged to have deceptively tracked the locations of children without parental consent, and a settlement with two app developers that allegedly allowed third-party advertisers to collect information about children without parental consent.

Consult with an experienced FTC compliance lawyer to avoid becoming the target of a privacy-related investigation or enforcement action.  Follow the author on Twitter @FTCLawDefense.

ADVERTISING MATERIAL. These materials are provided for informational purposes only and are not to be considered legal advice, nor do they create a lawyer-client relationship. No person should act or rely on any information in this article without seeking the advice of an attorney. Information on previous case results does not guarantee a similar future result. Hinch Newman LLP | 40 Wall St., 35thFloor, New York, NY 10005 | (212) 756-8777.

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