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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 per-sonal 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-ent—
(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. 1815
(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 Direc- tors 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.
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