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The FTC Issues Clarifications on the Children’s Online Privacy Protection Rule and Voice Recordings

On October 23, 2017, the Federal Trade Commission released a new policy enforcement statement regarding the Children’s Online Privacy Protection Rule (“COPPA”), a rule designed to “strengthen kids’ privacy protections and give parents greater control over the personal information that websites and online services may collect from children under 13.” The FTC’s new policy statement clarifies that the Commission will not require online providers and websites to acquire parental consent for the recording of a child’s voice for the purpose of replacing written words — such as for a command or a search done using a home voice control system. For example, the FTC will not enforce if a home voice control system records a child’s voice when they ask a question or give a request. This clarification is not without limit, as we explain below.

COPPA requires parental consent before a website or online provider can collect “personal information” including geolocation information, photographs, and videos. The rule applies to websites or online providers that are directed to children or websites or online providers that have actual knowledge that they collect information from individuals under the age of 13. The rule also applies when the operator allows an outside service, like an advertiser, to collect personal information. This rule does not apply to companies who collect the information for internal operations. Websites can obtain parental consent through video-conferencing, use of government-identification, payment systems, or email plus — sending a delayed email confirmation to the parent. 

In the new policy statement, the FTC confirmed that the COPPA rule requires parental consent before obtaining a voice recording for most purposes. But, the FTC will not pursue enforcement of the rule when websites or online services providers record voices solely to replace written words, such as when a home voice control system records a child’s voice when they ask a question or give a request. 

There are limitations to this policy statement. First, a website or online provider must only use the recording for the specific purpose for which it was recorded. Second, the Commission requires websites or online providers to only hold the recording for a brief time. Third, a website or online provider must still get consent from the parent if while recording the child’s voice the provider also obtains other personal information such as the child’s name or geolocation. Fourth, a website or online provider must include information regarding how it records and deletes the recording in its privacy policy. 

With the popularity of home voice control systems growing, this clarification from the FTC may ease the minds of many companies. In fact, the FTC’s policy statement seems to weaken its enforcement capabilities, which should allow websites and online providers to operate their technology as intended. However, in order to take advantage of this relaxation of standards, these companies will need to ensure their technology conforms to the FTC’s requirements and will need to update their privacy policies. Nevertheless, a few families may have preferred that the FTC bar children from using those home voice control systems altogether — lest they inadvertently end up with a large bill for this year’s hot new Christmas toy.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.