What’s the News?
The Federal Trade Commission (FTC) recently clarified that its jurisdiction under the Children’s Online Privacy Protection Act (COPPA) does not extend to information collected by state governments or most nonprofits in connection with online educational testing. The FTC reiterated that the primary goal of COPPA is to protect children’s privacy with respect to the online collection of personal information by commercial entities.
Under COPPA, websites and online services that are “directed” to children under the age of 13, as well as general interest websites that have actual knowledge that they are collecting personal information from children under the age of 13, must provide notice of their data collection practices and obtain verifiable parental consent before collecting, using, or disclosing the personal information of children.
There has frequently been confusion regarding how COPPA applies in the academic setting. Generally speaking, schools do not fall within the legal definition of COPPA because they are usually part of the local government and are not commercial “operators.” Confusion can arise, however, when schools require students to use sites and services that are covered by COPPA and which must also provide notice and obtain verifiable parental consent. To make it easier on schools, the FTC has long held that schools may act as intermediaries between covered website operators and parents in the notice and consent process. Thus, a school may authorize a covered commercial website operator to collect the personal information of its students, so long as a) the school has obtained permission from parents to act in their stead; and b) the website operator has otherwise complied with COPPA.
The Recent Clarification
Recently, two consortia of state educational agencies submitted questions to the FTC regarding whether COPPA covers providers of online tests. The consortia consist of nonprofit entities that are developing online educational testing. Because the groups are nonprofits and are comprised primarily of state educational agencies, the FTC noted that the groups — as well as the development and administration of their tests — would not be covered by COPPA. In reaching that conclusion, the FTC noted that, in many cases, schools administer testing because they are obligated to comply with legal mandates. Such activity would not fall under the scope of COPPA.
The recent announcement by the FTC sheds further light on the impact of COPPA in the educational setting and could provide helpful clarification for for-profit entities that create content for the academic setting. Arent Fox will continue to monitor issues related to COPPA. Please contact Sarah L. Bruno, Eva J. Pulliam, or Daniel B. Jasnow with questions.