Facebook Always Could Serve Ads to Kids

Contextual Advertising Has Always Been Permitted Under COPPA, Even to Children

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Will Facebook start targeting ads to kids? Newly adopted Federal Trade Commission changes to the law protecting children online have some observers suggesting that Facebook could aim contextual ads at kids under 13. The thing is , websites have always been allowed to serve contextual ads -- meaning advertising that 's targeted based on the content on a web page -- to kids.

More important, Facebook officially does not allow children under age 13 to register with the site. Some kids, of course, misrepresent their ages in order to gain access.

The FTC on Wednesday unveiled an update to its 1998 Children Online Privacy Protection Act, in part to modernize the law by requiring that mobile services obtain parental consent when collecting "persistent identifiers" like geo-location or mobile device IDs from children under 13.

The agency stated, however, that parental notice and consent are not required if a persistent identifier is used only for "internal operations, such as contextual advertising, frequency capping, legal compliance, site analysis, and network communications."

"It's not new," said Mamie Kresses, senior attorney for the FTC, and a member of the agency's COPPA team.

The fact is , contextual advertising aimed at kids has always been acceptable under COPPA. "Contextual advertising, which involves serving of advertisements that are relevant to the content the child is looking at...that has always been acceptable without prior notice and consent," she continued. The rule does require that sites provide notice and obtain consent when using persistent identifiers to track kids over time across websites -- for behavioral ad targeting, for instance.

Facebook does not allow children under age 13 to use the site, which requires registration. However, Facebook's privacy staff is paying attention to the rule change. Of particular significance are Facebook's sharing buttons which are strewn across the web and in some cases may be on pages visited by kids.

"While we're still reviewing the FTC's final rule, we are pleased the Commission clarified the limited circumstances under which providers of social plugins would be subject to COPPA when those plugins are displayed on other websites," said Erin Egan, chief privacy officer-policy, for Facebook.

According to the COPPA update, plugins such as Facebook's sharing button are not subject to the data-collection notice and consent rule unless the plugin itself is targeted to children or the plugin operator has actual knowledge that it is present on a kids' site. Ms. Kresses acknowledged that there would be a high burden on the FTC to prove such knowledge.

"The devil will ultimately be in the enforcement details and how the FTC determines whether there was actual knowledge," said Linda Goldstein, partner and chair of the Advertising, Marketing and Media division at Manatt, Phelps and Phillips.

Facebook gathers user data on pages that display its share button, whether or not the user interacts with the button.

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