Cheat Sheet: Children’s privacy law update adds pressure against Facebook’s Instagram for kids plan

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Facebook has provided few details about its mission to introduce a kids-aimed version of Instagram, but the company is under fresh scrutiny as a prominent critic of that plan, Sen. Ed Markey, a Massachusetts Democrat, unveiled a bipartisan bill on Tuesday that would update the United States’ children’s privacy law.

The proposed legislation would expand the age range of children covered under the law and strengthen federal oversight of internet services aimed at kids. It also comes on the heels of a call on May 10 for Facebook to end its kids’ Instagram project from attorneys general of more than 40 U.S. states, among other recent pushback against the plan from lawmakers and child safety advocates. 

Below is an overview of the bill updating the Children’s Online Privacy Protection Act (COPPA) and why Markey and other lawmakers and regulators are pushing back on Instagram for kids. 

First, here’s what the bill would do:

  • New bipartisan legislation — cosponsored by Markey along with Sen. Bill Cassidy, a Louisiana Republican — would update COPPA by prohibiting internet firms from collecting personal information from anyone aged 13 to 15 without the person’s consent and establishing a so-called Digital Marketing Bill of Rights for Minors that would limit the collection of personal information from teens.
  • If adopted, the law would ban targeted advertising directed at children.
  • Notably, it also would create a Youth Privacy and Marketing Division at the Federal Trade Commission to address children’s privacy and the marketing aimed at them. Additionally, it would require the FTC to deliver a report on whether apps aimed at kids follow the updated COPPA rules.
  • The bill would also require companies to allow young people and their parents to eliminate personal information supplied by children.

Markey already wants answers on data usage in Instagram for kids

Markey, a longtime advocate for stronger federal privacy protections, has joined other lawmakers in criticizing Facebook’s plans for a version of Instagram for children under age 13. “Facebook has an obligation to ensure that any new platforms or projects targeting children put those users’ welfare first, and we are skeptical that Facebook is prepared to fulfill this obligation,” Markey, and three other Congress members, wrote in an April 5 letter to Facebook CEO Mark Zuckerberg.

The legislators spotlighted the potential for privacy infringements associated with data use and sharing that might be provided by kids or generated through their use of a new version of Instagram, including for marketing purposes. Arguing that kids “are a uniquely vulnerable population online, and images of kids are highly sensitive data,” they asked Facebook to supply details on potential data collection and use by the future kids-aimed Instagram. They also questioned the potential for marketers to use the forthcoming service for influencer marketing and other ad messages immersed in the content itself that children would have difficulty deciphering as marketing messages. 

Why states are piling on to fight Facebook’s plans to launch a kids-aimed Instagram

Attorneys general from states — including Facebook’s home state of California in addition to Guam, Puerto Rico and Washington, D.C. — argued Facebook should “abandon” plans for an Instagram for kids because they believe it would harm children’s physical, emotional and mental well-being. In a May 10 letter sent to Zuckerberg, the AGs reiterated concerns reflected by others advocating against Instagram for kids, noting it would exploit kids’ fear of missing out and desire for peer approval while perpetuating problems associated with device addiction and body-image dissatisfaction.

AGs say kids don’t understand data sharing and privacy

The letter from the AG collective approached privacy concerns through the lens of children themselves. “Children do not have a developed understanding of privacy. Specifically, they may not fully appreciate what content is appropriate for them to share with others, the permanency of content they post on an online platform, and who has access to what they share online,” the AGs wrote.

While the Markey bill could help ensure that kids and their guardians can remove content that might be detrimental down the road, the AG letter highlighted how children’s lack of understanding regarding data sharing could hurt them while they’re still young. In particular, it cited data from U.K. charity the National Society for the Prevention of Cruelty to Children, which found that “UK police reports documented more cases of sexual grooming on Instagram than any other platform.” The letter also noted a report from the group showing “an increase of 200% in recorded instances in the use of Instagram to target and abuse children over a six-month period in 2018.”

Markey and the AGs say Facebook has a bad track record on protecting kids

Facebook’s version of Messenger for kids was criticized in 2019 when a bug exposed children to chats with uninvited — therefore potentially dangerous — people. The company still operates Messenger Kids despite calls by child advocates to take it down. “This episode illustrated the privacy threats to children online and evidenced Facebook’s inability to protect the kids the company actively invited onto this platform,” Markey and other legislators stated in their April letter. The letter from the AGs also pointed to the Messenger Kids app’s “design flaw,” calling it an example of Facebook’s “record of failing to protect” kids’ safety.  

Facebook has a variety of reasons why Instagram for kids is a good idea

A Facebook spokesperson in April told Digiday the company wants to build a separate place in the Instagram universe for kids to “find practical solutions to the ongoing industry problem of kids lying about their age to access apps.” In response to the AGs’ letter this week, the company focused its justifications more on parental control. 

“As every parent knows, kids are already online. We want to improve this situation by delivering experiences that give parents visibility and control over what their kids are doing. We are developing these experiences in consultation with experts in child development, child safety and mental health, and privacy advocates. We also look forward to working with legislators and regulators, including the nation’s attorneys general,” the company wrote in another statement sent to Digiday.

YouTube Kids might have inspired Facebook to rule out ads on Instagram for kids

Facebook has said it will not offer advertising on the kids-aimed version of Instagram. Not only would strict privacy rules guiding kids’ data use — such as the COPPA here in the U.S. and Europe’s General Data Protection Regulation — pose significant restrictions to ad targeting, but YouTube’s experience in allowing ads on its YouTube Kids platform may also serve as a warning.

The FTC fined Google $170 million in 2019 for violating COPPA by collecting persistent identifiers reflecting children, then using them to track kids across the web without parental notification or consent. And lawmakers are still criticizing YouTube about the platform. A letter sent in April to YouTube CEO Susan Wojcicki by Rep. Raja Krishnamoorthi (D-IL), chair of the House Subcommittee on Economic and Consumer Policy, suggested that advertisers are burying marketing messages in content uploaded on the platform and asked the company to provide details on its policies and procedures for reviewing ads and content.

Why regulators care now
There’s no way to separate the general anti-big tech attitudes among legislators on both sides of the aisle from increased scrutiny of Google’s and Facebook’s kids-aimed services. Amid federal and state-led antitrust lawsuits against Google, antitrust legislation targeting Facebook’s Instagram and WhatsApp acquisitions and the FTC’s current investigation of Facebook, we can expect any controversial moves by both companies to attract negative attention from regulators going forward.

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