Letter to Representative Bob Franks regarding H.R. 3508
June 4, 1996
Representative Bob Franks
429 Cannon House Office Building
Washington, DC 20515
Dear Representative Franks:
We are writing to commend your efforts to protect children's privacy. We
are pleased that you have begun a process to put these important issues
at the center of the political debate. We believe, however, that the solutions
recommended in your bill, -- the "Children's Privacy Protection and
Parental Empowerment Act" (HR 3508) -- particularly as they relate
to the exchange of information on the Internet, will not only increase the
collection of information about children in certain circumstances but will
also criminalize behavior in a vast array of unintended situations, thereby
compromising the free flow of information online.
With the rising popularity of the Internet and commercial online services,
concerns regarding the vulnerabilities of unsupervised children's activities
online must be addressed. Indeed, although the Internet offers children
unprecedented and important new educational and recreational opportunities,
the medium also may offer access to inappropriate material, or exposure
to unfair marketing or information collection practices. Solutions to these
problems must be carefully analyzed and should take into account both the
unique nature of the Internet, as well as the multitude of First Amendment
and privacy rights at stake for all who seek to read, communicate, and associate
with others in the online environment. In fact, the Federal Trade Commission
(FTC), whose responsibility it is to police the existence and proliferation
of unfair or deceptive advertising and information practices has scheduled
hearings for June 4 and 5 to look at these very issues as they apply to
the Internet.
Because your bill was drafted to apply to all media we are concerned that
its application in the Internet context may lead to unintended consequences.
We ask that you examine, together with the FTC, the unique qualities of
the Internet and the problems that result from regulating activity at the
information publisher or Web site operator end.
In its application to the Internet, the Children's Privacy Protection and
Parental Empowerment Act is both over-inclusive, covering virtually all
who participate in the Internet, and ineffective, in that it leaves substantial
loopholes for those who engage in the behavior at which the bill is targeted.
The term "personal information," the basic regulatory target of
the bill, is defined in such as way that it may include nothing more than
an electronic mail address which by its nature, gives no indication of the
age or physical location of a user. Furthermore, the term "list broker,"
is drafted to cover any entity which exchanges personal information in the
course of its operation. The vast majority of World Wide Web site operators,
as well as anyone who operates a listserv, mailing list or other information
distribution mechanism, all collect, store, and may well exchange, email
addresses. Then, unless Web site operators obtain parental consent before
collecting information, they risk criminal penalties for violation of section
(a)(4).
The difficulty in compliance is two-fold. First, information providers on
the Internet have no way of distinguishing children from adults. In fact,
compliance with the bill could well lead to an increase in the collection
of information about children and adults, only compounding privacy risks.
Even with the imposition of an unacceptably intrusive national ID system
(a system that none of us support), it would still be essentially impossible
for an information publisher or Web site operator to establish the age of
the user visiting the providers site. Second, the requirement to disclose
the source of personal information about children to parents creates unclear
new obligations on Internet information providers. In fact, many of the
information providers who would be covered by your bill do not keep track
of the source of their information and thus may not have the ability to
comply with the statute. Compliance with this section could well lead to
an increase in the overall collection of personal information about Internet
users, thereby compounding privacy risks.
Imposed identification procedures applied to the World Wide Web under the
threat of criminal penalties would limit all Internet users' ability to
read, speak, receive information and interact online under constitutionally-protected
conditions of anonymity. Further, requiring parental consent in all instances
or requiring providers to disclose information to parents collected from
children fails to acknowledge the distinction between young children and
teenagers and their rights under the Constitution.
Finally, section (a)(6) which criminalizes any distribution or receipt of
personal information where the receiver has knowledge or "reason to
believe that the information will be used to abuse the child or physically
harm the child" is well-intentioned, but potentially so broad as to
cover anyone who receives and discloses personal information about a child.
The bill establishes no clear standard of care or level of knowledge necessary
to meet this requirement, leaving everyone on the Internet in doubt about
whether or not they may be violating this new crime. Schools and organizations
who publish directories as well as newspapers who publish the identity of
a child in a news story could be subject to prosecution because they had
"reason to know" that the information may end up in the possession
of bad actors.
Given all of these difficulties in applying your bill to the Internet, and
given the importance of addressing children's privacy issues, we suggest
that examination of alternatives is in order. Empowering parents to protect
their children's privacy with existing technological tools and fair information
practices by the industry will help ensure that the Internet continues to
grow and thrive for both commercial and noncommercial endeavors. For example,
software already on the market such as Cyberpatrol, as well as industry-standard
technologies such as the Platform for Internet Content Selection (PICS)
enable people -- including parents and their children -- to restrict access
to sites which practice objectionable marketing and information collection
techniques.
At present, PICS technology, along with other innovative products, allows
parents to filter and block-out materials that contain objectionable content
or block access to sites with inappropriate or abusive marketing practices.
Current technology can enable parents to:
- prevent their children from accessing Web sites with inappropriate information
practices -- as defined by the parent or a consumer or privacy organization
of the parent's choice;
- prevent their children from revealing personal information such as name,
address, and e-mail address to others;
- install security measures such as passwords that prevent their child
from changing rules about Web site access or information disclosure, collection
and use that the parent has established.
The Internet community is already considering extensions to the PICS specifications
which will enable individual users and parents to block the transmission
of their personal information to Web sites they visit and to express a preference
about how and to what extent they are willing to have personal information
reused. PICS, Cyberpatrol and other technologies can help eradicate the
deceptive and inappropriate practices your bill seeks to address without
compromising the rights of users or content providers.
Several of us have had the opportunity to talk with you and your staff about
this legislation. We appreciate your willingness to discuss these issues
and look forward to working with you in this important area in the hopes
that technological alternatives combined with better industry practices
and much more narrowly crafted legislation will help protect this nation's
children in the online world, consistent with First Amendment and privacy
principles.
Sincerely,
The Center for Democracy & Technology
The Electronic Frontier Foundation
People For the American Way Action Fund
Voters Telecommunications Watch
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