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Children's
Online Privacy Protection Act of 1998
TITLE XIII-CHILDREN'S ONLINE PRIVACY PROTECTION
SEC. 1301. SHORT TITLE.
This title may be cited as the "Children's Online Privacy Protection Act of
1998".
SEC. 1302. DEFINITIONS.
In this title:
(1) CHILD.—The term "child" means an individual under the age of 13.
(2) OPERATOR.—The term "operator"—
(A) means any person who operates a website located on the Internet or an online
service and who collects or maintains personal information from or about the users of or
visitors to such website or online service, or on whose behalf such information is
collected or maintained, where such website or online service is operated for commercial
purposes, including any person offering products or services for sale through that website
or online service, involving commerce—
(i) among the several States or with 1 or more foreign nations;
(ii) in any territory of the United States or in the District of Columbia, or between
any such territory and—
(I) another such territory; or
(II) any State or foreign nation; or
(iii) between the District of Columbia and any State, territory, or foreign nation; but
(B) does not include any nonprofit entity that would otherwise be exempt from coverage
under section 5 of the Federal Trade Commission Act (15 U.S.C. 45).
(3) COMMISSION.—The term "Commission" means the Federal Trade
Commission.
(4) DISCLOSURE.—The term "disclosure" means, with respect to personal
information—
(A) the release of personal information collected from a child in identifiable form by
an operator for any purpose, except where such information is provided to a person other
than the operator who provides support for the internal operations of the website and does
not disclose or use that information for any other purpose; and
(B) making personal information collected from a child by a website or online service
directed to children or with actual knowledge that such information was collected from a
child, publicly available in identifiable form, by any means including by a public
posting, through the Internet, or through—
(i) a home page of a website;
(ii) a pen pal service;
(iii) an electronic mail service;
(iv) a message board; or
(v) a chat room.
(5) FEDERAL AGENCY.—The term "Federal agency" means an agency, as that
term is defined in section 551(1) of title 5, United States Code.
(6) INTERNET.—The term "Internet" means collectively the myriad of
computer and telecommunications facilities, including equipment and operating software,
which comprise the interconnected world-wide network of networks that employ the
Transmission Control Protocol/ Internet Protocol, or any predecessor or successor
protocols to such protocol, to communicate information of all kinds by wire or radio.
(7) PARENT.—The term "parent" includes a legal guardian.
(8) PERSONAL INFORMATION.—The term "personal information" means
individually identifiable information about an individual collected online,
including—
(A) a first and last name;
(B) a home or other physical address including street name and name of a city or town;
(C) an e-mail address;
(D) a telephone number;
(E) a Social Security number;
(F) any other identifier that the Commission determines permits the physical or online
contacting of a specific individual; or
(G) information concerning the child or the parents of that child that the website
collects online from the child and combines with an identifier described in this
paragraph.
(9) VERIFIABLE PARENTAL CONSENT.—The term "verifiable parental consent"
means any reasonable effort (taking into consideration available technology), including a
request for authorization for future collection, use, and disclosure described in the
notice, to ensure that a parent of a child receives notice of the operator's personal
information collection, use, and disclosure practices, and authorizes the collection, use,
and disclosure, as applicable, of personal information and the subsequent use of that
information before that information is collected from that child.
(10) WEBSITE OR ONLINE SERVICE DIRECTED TO CHILDREN.—
(A) IN GENERAL.—The term "website or online service directed to
children" means—
(i) a commercial website or online service that is targeted to children; or
(ii) that portion of a commercial website or online service that is targeted to
children.
(B) LIMITATION.—A commercial website or online service, or a portion of a
commercial website or online service, shall not be deemed directed to children solely for
referring or linking to a commercial website or online service directed to children by
using information location tools, including a directory, index, reference, pointer, or
hypertext link.
(11) PERSON.—The term "person" means any individual, partnership,
corporation, trust, estate, cooperative, association, or other entity.
(12) ONLINE CONTACT INFORMATION.—The term "online contact information"
means an e-mail address or an-other substantially similar identifier that permits direct
contact with a person online.
SEC. 1303. REGULATION OF UNFAIR AND DECEPTIVE ACTS AND PRACTICES IN CONNECTION WITH
THE COLLECTION AND USE OF PERSONAL INFORMATION FROM AND ABOUT CHILDREN ON THE INTERNET.
(a) ACTS PROHIBITED.—
(1) IN GENERAL.—It is unlawful for an operator of a website or online service
directed to children, or any operator that has actual knowledge that it is collecting
personal information from a child, to collect personal information from a child in a
manner that violates the regulations prescribed under subsection (b).
(2) DISCLOSURE TO PARENT PROTECTED.—Notwithstanding paragraph (1), neither an
operator of such a website or online service nor the operator's agent shall be held to be
liable under any Federal or State law for any disclosure made in good faith and following
reasonable procedures in responding to a request for disclosure of personal information
under subsection (b)(1)(B)(iii) to the parent of a child.
(b) REGULATIONS.—
(1) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act,
the Commission shall promulgate under section 553 of title 5, United States Code,
regulations that—
(A) require the operator of any website or online service directed to children that
collects personal information from children or the operator of a website or online service
that has actual knowledge that it is collecting personal information from a child—
(i) to provide notice on the website of what information is collected from children by
the operator, how the operator uses such information, and the operator's disclosure
practices for such information; and
(ii) to obtain verifiable parental consent for the collection, use, or disclosure of
personal information from children;
(B) require the operator to provide, upon request of a parent under this subparagraph
whose child has provided personal information to that website or online service, upon
proper identification of that parent, to such par-net—
(i) a description of the specific types of personal information collected from the
child by that operator;
(ii) the opportunity at any time to refuse to permit the operator's further use or
maintenance in retrievable form, or future online collection, of personal information from
that child; and
(iii) notwithstanding any other provision of law, a means that is reasonable under the
circumstances for the parent to obtain any personal information collected from that child;
(C) prohibit conditioning a child's participation in a game, the offering of a prize,
or another activity on the child disclosing more personal information than is reasonably
necessary to participate in such activity; and
(D) require the operator of such a website or online service to establish and maintain
reasonable procedures to protect the confidentiality, security, and integrity of personal
information collected from children.
(2) WHEN CONSENT NOT REQUIRED.—The regulations shall provide that verifiable
parental consent under paragraph (1)(A)(ii) is not required in the case of—
(A) online contact information collected from a child that is used only to respond
directly on a one-time basis to a specific request from the child and is not used to
recontact the child and is not maintained in retrievable form by the operator;
(B) a request for the name or online contact information of a parent or child that is
used for the sole purpose of obtaining parental consent or providing notice under this
section and where such information is not maintained in retrievable form by the operator
if parental consent is not obtained after a reasonable time;
(C) online contact information collected from a child that is used only to respond more
than once directly to a specific request from the child and is not used to recontact the
child beyond the scope of that request—
(i) if, before any additional response after the initial response to the child, the
operator uses reasonable efforts to provide a parent notice of the online contact
information collected from the child, the purposes for which it is to be used, and an
opportunity for the parent to request that the operator make no further use of the
information and that it not be maintained in retrievable form; or
(ii) without notice to the parent in such circumstances as the Commission may determine
are appropriate, taking into consideration the benefits to the child of access to
information and services, and risks to the security and privacy of the child, in
regulations promulgated under this subsection;
(D) the name of the child and online contact information (to the extent reasonably
necessary to protect the safety of a child participant on the site)—
(i) used only for the purpose of protecting such safety;
(ii) not used to recontact the child or for any other purpose; and
(iii) not disclosed on the site, if the operator uses reasonable efforts to provide a
parent notice of the name and online contact information collected from the child, the
purposes for which it is to be used, and an opportunity for the parent to request that the
operator make no further use of the information and that it not be maintained in
retrievable form; or
(E) the collection, use, or dissemination of such information by the operator of such a
website or online service necessary—
(i) to protect the security or integrity of its website;
(ii) to take precautions against liability;
(iii) to respond to judicial process; or
(iv) to the extent permitted under other provisions of law, to provide information to
law enforcement agencies or for an investigation on a matter related to public safety.
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(3) TERMINATION OF SERVICE.—The regulations shall permit the operator of a website
or an online service to terminate service provided to a child whose parent has refused,
under the regulations prescribed under paragraph (1)(B)(ii), to permit the operator's
further use or maintenance in retrievable form, or future online collection, of personal
information from that child.
(c) ENFORCEMENT.—Subject to sections 1304 and 1306, a violation of a regulation
prescribed under subsection (a) shall be treated as a violation of a rule defining an
unfair or deceptive act or practice prescribed under section 18(a)(1)(B) of the Federal
Trade Commission Act (15 U.S.C. 57a(a)(1)(B)).
(d) INCONSISTENT STATE LAW.—No State or local government may impose any liability
for commercial activities or actions by operators in interstate or foreign commerce in
connection with an activity or action described in this title that is inconsistent with
the treatment of those activities or actions under this section.
SEC. 1304. SAFE HARBORS.
(a) GUIDELINES.—An operator may satisfy the requirements of regulations issued
under section 1303(b) by following a set of self-regulatory guidelines, issued by
representatives of the marketing or online industries, or by other persons, approved under
subsection (b).
(b) INCENTIVES.—
(1) SELF-REGULATORY INCENTIVES.—In prescribing regulations under section 1303, the
Commission shall provide incentives for self-regulation by operators to implement the
protections afforded children under the regulatory requirements described in subsection
(b) of that section.
(2) DEEMED COMPLIANCE.—Such incentives shall include provisions for ensuring that
a person will be deemed to be in compliance with the requirements of the regulations under
section 1303 if that person complies with guidelines that, after notice and comment, are
approved by the Commission upon making a determination that the guidelines meet the
requirements of the regulations issued under section 1303.
(3) EXPEDITED RESPONSE TO REQUESTS.—The Commission shall act upon requests for
safe harbor treatment within 180 days of the filing of the request, and shall set forth in
writing its conclusions with regard to such requests.
(c) APPEALS.—Final action by the Commission on a request for approval of
guidelines, or the failure to act within 180 days on a request for approval of guidelines,
submitted under subsection (b) may be appealed to a district court of the United States of
appropriate jurisdiction as provided for in section 706 of title 5, United States Code.
SEC. 1305. ACTIONS BY STATES.
(a) IN GENERAL.—
(1) CIVIL ACTIONS.—In any case in which the attorney general of a State has reason
to believe that an interest of the residents of that State has been or is threatened or
adversely affected by the engagement of any person in a practice that violates any
regulation of the Commission prescribed under section 1303(b), the State, as parens
patriae, may bring a civil action on behalf of the residents of the State in a district
court of the United States of appropriate jurisdiction to—
(A) enjoin that practice;
(B) enforce compliance with the regulation;
(C) obtain damage, restitution, or other compensation on behalf of residents of the
State; or
(D) obtain such other relief as the court may consider to be appropriate.
(2) NOTICE.—
(A) IN GENERAL.—Before filing an action under paragraph (1), the attorney general
of the State involved shall provide to the Commission—
(i) written notice of that action; and
(ii) a copy of the complaint for that action.
(B) EXEMPTION.—
(i) IN GENERAL.—Subparagraph (A) shall not apply with respect to the filing of an
action by an attorney general of a State under this subsection, if the attorney general
determines that it is not feasible to provide the notice described in that subparagraph
before the filing of the action.
(ii) NOTIFICATION.—In an action described in clause (i), the attorney general of a
State shall provide notice and a copy of the complaint to the Commission at the same time
as the attorney general files the action.
(b) INTERVENTION.—
(1) IN GENERAL.—On receiving notice under subsection (a)(2), the Commission shall
have the right to intervene in the action that is the subject of the notice.
(2) EFFECT OF INTERVENTION.—If the Commission intervenes in an action under
subsection (a), it shall have the right—
(A) to be heard with respect to any matter that arises in that action; and
(B) to file a petition for appeal.
(3) AMICUS CURIAE.—Upon application to the court, a person whose self-regulatory
guidelines have been approved by the Commission and are relied upon as a defense by any
defendant to a proceeding under this section may file amicus curiae in that proceeding.
(c) CONSTRUCTION.—For purposes of bringing any civil action under subsection (a),
nothing in this title shall be construed to prevent an attorney general of a State from
exercising the powers conferred on the attorney general by the laws of that State to—
(1) conduct investigations;
(2) administer oaths or affirmations; or
(3) compel the attendance of witnesses or the production of documentary and other
evidence.
(d) ACTIONS BY THE COMMISSION.—In any case in which an action is instituted by or
on behalf of the Commission for violation of any regulation prescribed under section 1303,
no State may, during the pendency of that action, institute an action under subsection (a)
against any defendant named in the complaint in that action for violation of that
regulation.
(e) VENUE; SERVICE OF PROCESS.—
(1) VENUE.—Any action brought under subsection (a) may be brought in the district
court of the United States that meets applicable requirements relating to venue under
section 1391 of title 28, United States Code.
(2) SERVICE OF PROCESS.—In an action brought under subsection (a), process may be
served in any district in which the defendant—
(A) is an inhabitant; or
(B) may be found.
SEC. 1306. ADMINISTRATION AND APPLICABILITY OF ACT.
(a) IN GENERAL.—Except as otherwise provided, this title shall be enforced by the
Commission under the Federal Trade Commission Act (15 U.S.C. 41 et seq.).
(b) PROVISIONS.—Compliance with the requirements imposed under this title shall be
enforced under—(1) section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818),
in the case of—
(A) national banks, and Federal branches and Federal agencies of foreign banks, by the
Office of the Comptroller of the Currency;
(B) member banks of the Federal Reserve System (other than national banks), branches
and agencies of foreign banks (other than Federal branches, Federal agencies, and insured
State branches of foreign banks), commercial lending companies owned or controlled by
foreign banks, and organizations operating under section 25 or 25(a) of the Federal
Reserve Act (12 U.S.C. 601 et seq. and 611 et seq.), by the Board; and
(C) banks insured by the Federal Deposit Insurance Corporation (other than members of
the Federal Reserve System) and insured State branches of foreign banks, by the Board of
Directors of the Federal Deposit Insurance Corporation;
(2) section 8 of the Federal Deposit Insurance Act (12 U.S.C. 1818), by the Director of
the Office of Thrift Supervision, in the case of a savings association the deposits of
which are insured by the Federal Deposit Insurance Corporation;
(3) the Federal Credit Union Act (12 U.S.C. 1751 et seq.) by the National Credit Union
Administration Board with respect to any Federal credit union;
(4) part A of subtitle VII of title 49, United States Code, by the Secretary of
Transportation with respect to any air carrier or foreign air carrier subject to that
part;
(5) the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq.) (except as provided in
section 406 of that Act (7 U.S.C. 226, 227)), by the Secretary of Agriculture with respect
to any activities subject to that Act; and
(6) the Farm Credit Act of 1971 (12 U.S.C. 2001 et seq.) by the Farm Credit
Administration with respect to any Federal land bank, Federal land bank association,
Federal intermediate credit bank, or production credit association.
(c) EXERCISE OF CERTAIN POWERS.—For the purpose of the exercise by any agency
referred to in subsection (a) of its powers under any Act referred to in that subsection,
a violation of any requirement imposed under this title shall be deemed to be a violation
of a requirement imposed under that Act. In addition to its powers under any provision of
law specifically referred to in subsection (a), each of the agencies referred to in that
subsection may exercise, for the purpose of enforcing compliance with any requirement
imposed under this title, any other authority conferred on it by law.
(d) ACTIONS BY THE COMMISSION.—The Commission shall prevent any person from
violating a rule of the Commission under section 1303 in the same manner, by the same
means, and with the same jurisdiction, powers, and duties as though all applicable terms
and provisions of the Federal Trade Commission Act (15 U.S.C. 41 et seq.) were
incorporated into and made a part of this title. Any entity that violates such rule shall
be subject to the penalties and entitled to the privileges and immunities provided in the
Federal Trade Commission Act in the same manner, by the same means, and with the same
jurisdiction, power, and duties as though all applicable terms and provisions of the
Federal Trade Commission Act were incorporated into and made a part of this title.
(e) EFFECT ON OTHER LAWS.—Nothing contained in the Act shall be construed to limit
the authority of the Commission under any other provisions of law.
SEC. 1307. REVIEW.
Not later than 5 years after the effective date of the regulations initially issued
under section 1303, the Commission shall—
(1) review the implementation of this title, including the effect of the implementation
of this title on practices relating to the collection and disclosure of information
relating to children, children's ability to obtain access to information of their choice
online, and on the availability of websites directed to children; and
(2) prepare and submit to Congress a report on the results of the review under
paragraph (1).
SEC. 1308. EFFECTIVE DATE. Sections 1303(a), 1305, and 1306 of this title take
effect on the later of—
(1) the date that is 18 months after the date of enactment of this Act; or
(2) the date on which the Commission rules on the first application filed for safe
harbor treatment under section 1304 if the Commission does not rule on the first such
application within one year after the date of enactment of this Act, but in no case later
than the date that is 30 months after the date of enactment of this Act.
19528 Ventura Blvd. Suite #115
Tarzana, CA 91356
1-818-935-5340
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