As a matter of general legal principle, federal law trumps any state law that covers the same topic. Given this, the federal Children’s Online Privacy Protection Act of 1998 has long been the guiding light for the privacy rights of children online with few states attempting to legislate on the topic. This may be changing with the introduction of the new Privacy Rights for California Minors in the Digital World Law.
The Odd COPPA Age
One of the common criticisms of COPPA is it applies only to individuals who are younger than 13 years old. Are we to believe that a child who turns 13 is suddenly wise to the ways of the world, Internet and predatory individuals? Why is it verboten to create a marketing profile for a 12-year-old without parental consent, but not a 13-year-old? The response to this criticism from legislators and the FTC has mostly been a shrug of the shoulders.
The federal government has shown a striking inability to address privacy issues both for the online and offline environment. With no NSA to protect, California has stepped into the breach and passed more than 10 privacy laws the last three years. Instead of focusing on the collection of personal information from children under 13, the new law focuses on limiting the marketing of certain products to any individual who is under the age of 18. Since COPPA fails to cover this topic and teens between 13 and 18, the new California law is arguably not trumped by COPPA.
The new California privacy law requires online platforms directed at minors under 18 to forgo advertising certain products. As with COPPA, the law also applies where the online operator has actual knowledge of kids under 18 using the site. The list of specifically prohibited items includes:
- Alcoholic beverages.
- Firearms or handguns.
- Ammunition or reloaded ammunition.
- Handgun safety certificates.
- Aerosol container of paint that is capable of defacing property.
- Etching cream that is capable of defacing property.
- Any tobacco, cigarette, or cigarette papers, or blunt wraps, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking or ingestion of tobacco, products prepared from tobacco, or any controlled substance,
- BB device, as referenced in Sections 16250 and 19910 of the Penal Code.
- Dangerous fireworks.
- Tanning in an ultraviolet tanning device.
- Dietary supplement products containing ephedrine group alkaloids.
- Tickets or shares in a lottery game.
- Salvia Divinorum or Salvinorin A, or any substance or material containing Salvia Divinorum or Salvinorin A, as referenced in Section 379 of the Penal Code.
- Body branding.
- Permanent tattoo.
- Drug paraphernalia.
- Electronic cigarettes.
- Obscene matter.
- A less lethal weapon, as referenced in Sections 16780 and 19405 of the Penal Code.
Online platforms frequently use third-party advertising services to generate revenues. If this describes your situation, you should know online operators are only required to notify the advertising service that your platform is directed at minors under 18 or has minors using it to comply with the new law. The advertising service then has a duty to keep advertisements for any of the prohibited items from appearing on the platform in question.
Does the Privacy Rights for California Minors in the Digital World Law constitute an expansion of COPPA? While an age increase is incorporated in the new law, the lack of a parental notification requirement and focus on marketing restrictions makes the answer debatable at best. Regardless, online operators should review their platforms to make sure they are in compliance with COPPA and this new law as it went into effect on January 1, 2015.
Richard A. Chapo, Esq.