Attorney Predicts 'Avalanche' of Kids Privacy State Laws
A vast and confusing array of kids privacy laws in the states is likely to keep expanding in the near term, even though many are probably unconstitutional, Sheila Millar, a consumer protection lawyer at Keller & Heckman, said on a Better Business Bureau podcast posted Wednesday.
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Millar predicted “an avalanche of new state laws” related to child online safety over the next one to two years. “States keep adopting laws" and "replicating provisions that have been found to be unconstitutional in lower courts,” she said. “That speaks to some level of frustration by politicians and voters about where we are in today's society of the internet, but without the introspection of” asking who is to blame. “Why are we so dependent on social media as adults and how are we modeling this for children?"
"It's unfortunate that we're not learning from legislative mistakes that have been made and trying to figure out a new path,” Millar added.
Lacking a national, preemptive standard has led to inconsistent requirements and definitions about age, the attorney said. But COPPA includes only narrow preemption, allowing many states to pass laws, including ones that probably conflict with the federal child privacy law, she said.
"This lack of consistency makes compliance so hard" for companies big and small,” Millar said. “When you're trying to keep the lights on in a tough economic environment, that becomes really difficult."
But despite this challenge for businesses, Republicans and Democrats alike care about kids and teenagers, making for "one bipartisan issue that people can align on,” Millar said. Another factor contributing to the avalanche of privacy laws is "regulatory one-upmanship," where states keep trying to outdo each other to make tougher laws, she said.
However, Millar doesn’t believe a social media kids ban like the one in Australia (see 2512120028) will pass muster in the U.S. Here, “broad bans are constitutionally suspect,” she said. “It's one thing if you're talking about" porn, alcohol or other products that can't be sold to minors, "but that's a very different situation than you can't access content, period.”
Businesses of all kinds and sizes must keep their eyes open, said the lawyer, cautioning that even companies that target adults could inadvertently obtain a userbase of children. The first thing companies should do, she said, is map their data.
“If you've improperly collected" kids data, "delete it as soon as possible, but you have to know what you've collected and where it is in order to delete it,” said Millar. "At a practical level, whenever you're talking about privacy, you always have to start with a data map."