Enforcement Policy Statement Regarding the Applicability of the COPPA Rule to the Collection and Use of Voice Recordings, 58076-58077 [2017-26509]

Agencies

• FEDERAL TRADE COMMISSION

[Federal Register Volume 82, Number 235 (Friday, December 8, 2017)]
[Rules and Regulations]
[Pages 58076-58077]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26509]



[[Page 58075]]

Vol. 82

Friday,

No. 235

December 8, 2017

Part III





 Federal Trade Commission





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16 CFR Part 312





 Enforcement Policy Statement Regarding the Applicability of the COPPA 
Rule to the Collection and Use of Voice Recordings; Policy Statement; 
Rule

Federal Register / Vol. 82, No. 235 / Friday, December 8, 2017 / 
Rules and Regulations

[[Page 58076]]


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FEDERAL TRADE COMMISSION

16 CFR Part 312


Enforcement Policy Statement Regarding the Applicability of the 
COPPA Rule to the Collection and Use of Voice Recordings

AGENCY: Federal Trade Commission.

ACTION: Commission policy statement.

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SUMMARY: The Federal Trade Commission has issued an Enforcement Policy 
Statement regarding the applicability of the Children's Online Privacy 
Protection Act (``COPPA'') Rule to the collection of voice recordings. 
The Statement describes certain circumstances in which the Commission 
will not bring an enforcement action against an operator on the basis 
of the operator having collected an audio file containing a child's 
voice without first obtaining verifiable parental consent.

DATES: The Commission announced the issuance of the Statement on 
October 23, 2017.

FOR FURTHER INFORMATION CONTACT: Kristin Cohen (202-326-2276) and Peder 
Magee (202-326-3538), Bureau of Consumer Protection, 600 Pennsylvania 
Avenue NW., Washington, DC 20580.

SUPPLEMENTARY INFORMATION: 

Enforcement Policy Statement Regarding the Applicability of the COPPA 
Rule to the Collection and Use of Voice Recordings

    On November 3, 1999, the Federal Trade Commission (``FTC'' or 
``Commission'') issued its Children's Online Privacy Protection Rule 
(``COPPA Rule'' or ``Rule''). The Rule implements the Children's Online 
Privacy Protection Act, 15 U.S.C. 6501-6505, and requires, among other 
things, operators of commercial Web sites or online services directed 
to children, and operators with actual knowledge they are collecting 
personal information from children, to provide notice of their 
information practices to parents and to obtain verifiable parental 
consent before collecting a child's personal information. The Rule 
defined ``personal information'' to include data such as name, address, 
and social security number.
    In 2013, the FTC amended the COPPA Rule and added several new types 
of data to the definition of personal information, including a 
photograph, video, or audio file that contains a child's image or 
voice.\1\ Discussing the 2013 amendments, the Commission explained that 
``the very personal nature'' of such files supported the Commission's 
finding that they met the standard for personal information set forth 
in the COPPA statute because they ``permit the physical or online 
contacting of a specific individual.'' 78 FR 3972, 3982 (Jan. 17, 
2013). Therefore, under the amended Rule, a covered operator must 
provide notice and obtain verifiable parental consent before it 
collects any of these types of personal information from a child. The 
Commission's rationale in amending the Rule was to keep pace with 
changes to technology, children's increased use of mobile devices, and 
the development of new business models that did not exist when the 
Commission issued the Rule in 1999.
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    \1\ The prior definition included photographs only when combined 
with additional information that would allow physical or online 
contacting of the child.
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    Since amending the Rule, the Commission has received inquiries from 
a number of companies about whether the practice of collecting audio 
files that contain a child's voice, immediately converting the audio to 
text, and deleting the file containing the voice recording triggers 
COPPA's requirements. In particular, these companies have requested 
that collection of audio files in connection with a search or similar 
function be exempted from COPPA's verifiable parental consent 
requirement when the audio file is briefly maintained in order to 
fulfill the request and then deleted almost instantaneously.
    In relevant part, the Rule defines ``collects or collection'' to 
mean the gathering of any personal information from a child by any 
means, including but not limited to:
     Requesting, prompting, or encouraging a child to submit 
personal information online;
     Enabling a child to make personal information publicly 
available in identifiable form. An operator shall not be considered to 
have collected personal information under this paragraph if it takes 
reasonable steps to delete all or virtually all personal information 
from a child's postings before they are made public and also to delete 
such information from its records.\2\
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    \2\ The third prong of the definition relates to passive 
tracking of a child online and is not relevant to this discussion.
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    The Commission views the collection from a child of an audio file 
when the voice is being used solely as a replacement for written words, 
such as to convert voice to text in order to perform a search, as 
falling into the first prong of the definition of ``collection'' 
because the operator is ``requesting, prompting, or encouraging'' the 
child to submit personal information. Because this practice falls into 
the first category of ``collection,'' the Rule does not provide a 
mechanism for the operator to avoid being deemed to have collected the 
personal information by deleting it. In other words, as soon as the 
operator gathers the audio file, it has collected it for purposes of 
the COPPA Rule regardless of how long the operator maintains possession 
of it. The second prong of the definition is meant to address the 
inadvertent collection of personal information, such as information 
that might be collected incidentally in an open text field, which is 
why the Rule specifically allows an operator to be deemed not to have 
collected the personal information if it takes reasonable measures to 
delete the information.
    Nevertheless, the Commission recognizes the value of using voice as 
a replacement for written words in performing search and other 
functions on internet-connected devices. Verbal commands may be a 
necessity for certain consumers, including children who have not yet 
learned to write, or the disabled. In addition, when the operator only 
uses the audio file as a replacement for written words, such as to 
effectuate an instruction or request, and only maintains the file long 
enough to complete that purpose and then immediately deletes it, there 
is little risk the audio file will be used to contact an individual 
child.
    As such, when a covered operator collects an audio file containing 
a child's voice solely as a replacement for written words, such as to 
perform a search or fulfill a verbal instruction or request, but only 
maintains the file for the brief time necessary for that purpose, the 
FTC would not take an enforcement action against the operator on the 
basis that the operator collected the audio file without first 
obtaining verifiable parental consent. Such an operator, however, must 
provide the notice required by the COPPA Rule, including clear notice 
of its collection and use of audio files and its deletion policy, in 
its privacy policy.
    There are important limitations on this non-enforcement policy. 
First, this non-enforcement policy is not applicable when the operator 
requests information via voice that otherwise would be considered 
personal information under the Rule, such as name, for example. Second, 
as noted above, an operator must provide clear notice of its collection 
and use of the audio files and its deletion policy in its privacy 
policy. Otherwise, parents may have no way to know prior to download or 
purchase whether audio files are

[[Page 58077]]

being collected, and if they later learn that audio files are being 
collected, they would have no reason to know that the files are being 
collected only for a limited purpose and immediately destroyed. Third, 
the operator may not make any other use of the audio file in the brief 
period before the file is destroyed--for example, for behavioral 
targeting or profiling purposes, for identification purposes through 
voice recognition, or for posting, selling, or otherwise sharing the 
file with third parties. Finally, this policy does not affect the 
operator's COPPA compliance requirements in any other respect. For 
example, the operator must provide notice and obtain verifiable 
parental consent if types of personal information other than audio 
files are also collected.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2017-26509 Filed 12-7-17; 8:45 am]
 BILLING CODE 6750-01-P