® BuscaLegis.ccj.ufsc.br
Douglas M. Isenberg
The First Online Privacy Law
SEE ALSO
How to Comply With The Children's Online Privacy Protection Rule
Online Privacy Policies and Practices Under Fire
Facts About Privacy and Cyberspace
In our political leaders' rush to "protect" us from the ills of the
Internet, you won't believe what rules have emerged: As the laws stand today,
children are welcome to view all the free porn they can find online, but they
need to obtain their parents' consent before using some of the fun services
offered by Disney, Nickelodeon and other kid-oriented web sites.
This result highlights the problems with new rules designed to protect
youngsters in cyberspace, but it's not the only flaw in the Children's Online
Privacy Protection Act (COPPA) -- which the Federal Trade Commission (FTC)
recently began enforcing -- or the United States' general approach to privacy
on the Internet.
Since the rise of the World Wide Web, the U.S. government has taken a
relatively hands-off approach to online privacy, maintaining its position that
industry self-regulation is preferable. But privacy has become an issue too hot
for the government to ignore, and the FTC in May declared that "industry
efforts alone have not been sufficient" and the time has come for Congress
to enact legislation that "will ensure adequate protection of consumer
privacy online."
The FTC's motivation is commendable; after all, it is a bit scary to think
about the ease with which databases can be compiled (including accurate and
inaccurate intimate details) and sold in the information age. But as COPPA
underscores, it's very unclear whether new legislation is the answer.
COPPA -- which applies to the operators of certain web sites, including those
"directed to children" -- generally requires site operators to
provide clear notices about the type of information they collect from children
and to obtain "verifiable parental consent" before using or
disclosing the information. As a result of COPPA, a number of web sites altered
their privacy policies and information-collecting practices. Surf Monkey, a
community site for children, reportedly spent $50,000 to $100,000 to comply
with COPPA's numerous legal requirements. While Surf Monkey's efforts may be
praiseworthy, it's astonishing to see what the law hath wrought: a 4,673-word
privacy policy that surely is indecipherable to children under 13 and will
never be read by parents.
More Privacy Laws Coming?
The United States has been criticized for its lack of privacy protection laws,
particularly by European countries that strictly regulate what companies can do
with personal information. Still, despite the lack of U.S. laws, many web sites
have created and posted their own privacy policies to alert users about what
the sites will do with personally identifiable information such as names,
e-mail addresses, mailing addresses, and other vital statistics that users
might provide.
But posting a privacy policy is not in and of itself enough for those who want
greater protection on the Internet. Two additional elements are required:
First, the policy must be protective; that is, a privacy policy in which a
company states that it shares any and all user information with any third party
that asks for it is essentially a useless privacy policy. Second, the policy
must be followed. COPPA represents the government's first real attempt to make
sure these two crucial elements exist. Unfortunately, COPPA may not succeed.
The most obvious flaw is the ease with which the new law can be circumvented. A
child can easily forge his parent's consent by mail, e-mail, fax or phone -- or
get an older friend to do so. Paradoxically, the new law allows for obtaining
consent through use of a credit card, despite the fact that the U.S. Supreme
Court said three years ago in ACLU v. Reno (the Communications Decency Act
case) that "the Government failed to adduce any evidence that these
verification techniques actually preclude minors from posing as adults."
Though COPPA has the teeth of federal enforcement behind it, the new law is
impractical, unworkable and, perhaps, unconstitutional.
The FTC's latest call for privacy legislation is far more reaching than COPPA,
since any new laws presumably would apply to everyone's privacy, not just
children's. If new rules are inevitable, let's hope they'll be better thought-out
-- and less subject to legal challenges -- than the country's first online
privacy law. http://www.gigalaw.com/articles/2000-all/isenberg-2000-07a-all.html
Disponível em: http://www.cbeji.com.br/br/novidades/artigos/index.asp?id=4866
Acesso em: 20 setembro. 05.