|June 10, 1999
Federal Trade Commission
This letter is submitted by Grolier Enterprises Inc. (AGrolier@) in response to the Federal Trade Commission=s invitation for written comment to its proposed Children=s Online Privacy Protection Rule (the ARule@). The Rule has been prepared by the Commission in order to implement the requirements of the Children=s Online Privacy Protection Act of 1998 (the AAct@).
As a children=s book publisher and direct marketer of educational products to children, Grolier supports protections concerning the appropriate means for the online collection, use and disclosure of personally identifiable information concerning children, but we strongly believe that the proposed Rule is overly burdensome and that certain of the restrictions contained therein would cause a severe adverse impact on businesses such as Grolier, to the detriment of available Internet sites, products and activities for children. The comments set forth herein are intended to highlight some of these burdensome restrictions, the adverse impact they would have on children=s content providers, and to recommend revisions to the Rule to avoid this unjust result. Our reply is intended to supplement the DMA=s comments on the Rule.
First and foremost, Grolier would propose that the Rule add an exemption from parental consent for the collection of personal information made by a bona fide children=s publisher of educational materials responding to requests received from a child. The Act contemplates in 1303(b)(2)(c)(ii) that the regulations may allow such contact, taking into consideration the benefits to the child of access to information and services. In developing educational content and learning tools for children, it is our experience that those children who are reluctant readers are often drawn into the positive experience of reading if they have an opportunity to input their own personal details into the media. Complicated and extensive notice and consent procedures would virtually extinguish any initial spark of interest in reading the child began to experience.
In connection with Section 312.5 of the Rule concerning Averifiable parental consent@, the mechanisms noted in the Notice do not appear to present alternatives of effective means to acquire consent. In the case of digital signatures, the technology has not advanced such that this is a viable alternative at this time. Off site parental consent through fax, 800 number, credit card or other means would require too much time and effort on the consumer=s behalf who, in the context of an online environment, expects real time results. In keeping with the statutory mandate that operators must make a reasonable effort to obtain verifiable consent, it is Grolier=s belief that the interpretive approach to the Rule should not be so restrictive as to only allow means to provide this consent which are so unwieldy that neither consumers nor businesses will want to take the time and effort to execute them. Unless a broad interpretation which lists acceptable examples as well as allowing for additional proposed mechanisms is used, the result will be to stifle the industry=s opportunity to educate children and obtain feedback from the children themselves. We would submit that it would be an acceptable mechanism to obtain a general consent from parents when they initially purchase goods or services, their consent, perhaps in the form of a check off box, would agree to their children=s participation in interactive areas on our website, including surveys and the like. Another mechanism which should be acceptable is to obtain parent contact information from the child and thereafter send (whether by e-mail, fax or otherwise) to the parent a notice describing the information to be collected and for what purposes. The notice would state that unless the parent responds otherwise, they will be deemed to have provided their consent to same.
Also with regard to parental consent, an exception should be made for live letters to the editor or other opinion/creative pieces submitted by children, provided that any personally identifiable information is not otherwise used. In the educational and reference industry it would not be unlikely that such creative process on the part of children may be encouraged and it would be contrary to the interests of the children to stifle this activity. Thus an exception should be made for live or creative content submitted by children to an operator who, other than publication of such content, does not utilize or disclose such information.
Further, the Rule=s proposed definition of Acollects or collection@ in Section 312.2 is overly broad in its inclusion of information gathered Aregardless of how that personal information is transmitted to the operator.@ In the event a promotional or other form is printed from a site and thereafter mailed in to a company, it should be treated no differently from any other similar direct mail solicitation also accessible to all ages, e.g. a magazine. Information so obtained is not within the intended scope of the Act, and as such the Rule should not attempt to regulate same.
An exemption from the Rule should be made for sites (or portions thereof) which while clearly directed to goods and services for children, includes requests for information not targeted to children if accompanied by a clear and conspicuous disclosure that the inquiry is intended for adults only. For example, while Grolier=s website promotes its children=s educational products, personally identifiable information is requested from those individuals who would like to receive future promotions. This request for voluntarily submitted information is not intended to be completed by children. In the anonymous arena of the Internet however, at a site containing content geared towards children, the information may inadvertently be completed by a child. Rather than an unwieldy and overly burdensome verifiable consent disclosure section as per the Rule, we believe it would be in keeping with the intention of the Act to provide an exception to the Act=s requirements, and to utilize a disclosure only.
The Rule appears to intend to retroactively apply to information gathered prior to the effective date of the Act. In doing so, an unanticipated operational burden would be imposed on operators, requiring significant technological procedures be established to comply, at a substantial cost in both time and money. We believe that not only would this cause an unfair and inappropriate disadvantage to operators, but that retroactive application would be contrary to the intention of the Act.
In conclusion, Grolier would like to offer its support for the Commissions= efforts at ensuring that the acquisition, dissemination and use of children=s personally identifiable information is conducted in an appropriate fashion. We at Grolier believe it goes hand in hand that a company interested in educating children is interested in their welfare as well, and we are confident our industry will ultimately establish self-imposed guidelines acceptable to the Commission as contemplated in the safe harbor provisions of the Rule. Until that time however, if overly broad and unwieldy restrictions are established under the Rule, the inequitable result would not only fail to serve the intentions of Congress and the Commission, but could adversely impact our children=s access to the Internet=s incredibly rich sources of information. Specifically in the children=s publishing field it may dampen a child=s enthusiasm to participate in online sites designed to encourage reading and worse yet we believe the children most likely to be adversely affected are those reluctant readers who need the encouragement the most.
Grolier therefore respectfully submits that the Commission review and consider the comments made herein, and that the proposed Rule be revised accordingly to adequately address the concerns of both the Commission and the online children=s publishing industry. I would personally welcome the opportunity to testify before you concerning these matters.
Grolier Enterprises Inc.