Facebook: Federal online privacy rules would violate free speech rights

Facebook is warning the Federal Trade Commission that its proposed update to children's online privacy rules would infringe constitutionally protected free speech rights.

The company said that because the proposal would restrict the ability of children to "like," comment on or recommend websites, it would violate the First Amendment.

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"The Supreme Court has recognized on numerous occasions that teens are entitled to First Amendment protection," Facebook wrote in a filing with the FTC. "A government regulation that restricts teens’ ability to engage in protected speech—as the proposed COPPA Rule would do—raises issues under the First Amendment."

The FTC is looking to update the Children’s Online Privacy Protection Act (COPPA), which restricts the ability of websites to collect information from children younger than 13.

COPPA was passed by Congress in 1998, before the rise of smartphones and mobile apps. The FTC unveiled a proposal in August that would expand the law to cover not only websites, but also games, apps, ad networks and other online plug-ins.

The proposal would also ban ads on children's websites from installing tracking files, known as cookies, on users' computers. Advertisers install cookies to track users' browsing history and display targeted ads to them.

The update would allow sites that are aimed at children and adults to create a log-in page for users to reveal whether they are older than 13. Users younger than 13 would still be able to access the sites, but the sites would face restrictions on the use of the children's information.

Currently, Facebook is only available to users who identify themselves as older than 13. But the company is testing ways to allow younger children to use the site without violating COPPA.

Some consumer advocacy groups have urged Facebook to not advertise to children at all if it expands access to its website.

But in its filing, Facebook urged the FTC to clarify that websites will still be allowed to advertise directly to children.

The company argued that advertisements controlled directly by a website raise less privacy concerns than ad networks that use cookies to track users across the Web.

"This clarification further supports the balance created between the significant demand for free, advertising-supported services, and the expected tailoring of those services," Facebook wrote.

Facebook said it supports COPPA, but urged the FTC not to expand the law to cover third-party content providers. The company also said the FTC should clarify that sites can still track adults even if they know that some of their users are children.

Google also filed comments with the FTC arguing that the law should not cover third-party content. Google argued that the "practical and technical challenges" created by the proposed revisions, especially the expanded definition of "personal information," will limit "operators’ ability to sustain and develop legitimate children’s offerings."

But Reps. Edward Markey (D-Mass.) and Joe Barton (R-Texas), both hawks on online privacy protection, applauded the FTC's proposal.

Markey said the update is "necessary to adequately protect children" and that it is consistent with the intent of Congress in enacting COPPA.