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Online Protection for Children: Delaware following California?

Written by Julia Siripurapu, CIPP/US

Delaware state representative Darryl Scott recently introduced the Child Online Protection Act (House Bill 261 or the “Bill”), to the state's House of Representatives. If passed, the Bill would: (1) prohibit the online marketing and advertising of certain products and services to children under the age of 18 (“Minors”) as well as using a Minor’s personally identifiable information (“any information about a person that permits the physical or online identifying or contacting of a person,” such as a home or other physical address, e-mail address, telephone number, social security number (or other government issued ID), geolocation data, DNA or other genetic material) to market or advertise certain products or services to the Minor, (2)  permit individuals to delete or request the deletion of content they posted online (either via a website or mobile application) as Minors, except in certain prescribed circumstances, and (3)  requires online operators to establish an age verification system “that can be reasonably expected to identify the age of the child who is a prospective or registered user.”

The Delaware Bill is modeled after California’s S.B. 568 which goes into effect on January 1, 2015 (“S.B. 568”). Like S.B. 568, the Bill: (1) prohibits operators of online services directed toward Minors (as well as online services not directed toward Minors, if the operator of the service has actual knowledge of a minor using the service and advertisements are specifically directed to that Minor based on information the Minor has provided) from marketing certain products (including alcoholic beverages, firearms, ammunition, spray paint, tobacco products, fireworks, tanning devices, lottery tickets, tattoos, drug paraphernalia and obscene materials) and (2) requires that these types of online services permit Minors to remove or request the removal of content or information posted by that Minor and provide certain specific disclosures regarding deletion of online information. We discuss S.B. 568 in more detail here and provide recommendations for preparing to comply with the S.B. 568 requirements.

The Bill becomes effective 1 year after its enactment into law. Non-compliance with the Child Online Protection Act would be deemed a violation of the Delaware Consumer Fraud Act which is enforced by the Delaware Attorney General and a private right of action is contemplated to the extent allowable by the Delaware Consumer Fraud Act.

Although not generally as restrictive as the Amended COPPA Rule, both S.B. 568 and House Bill 261 apply to minors between the age of 13 and 18 who are not covered by the Amended COPPA Rule. However, as discussed in our prior blog post, if passed, the Do Not Track Kids Act of 2013 (S. 1700 and H.R. 3481) introduced in the House and Senate on November 14, 2013 by Sens. Ed Markey (D-Massachusetts) and Mark Kirk (R-Illinois) and Reps. Joe Barton (R-Texas) and Bobby Rush (D-Illinois) would expand COPPA protections to  minors over the age of 12 and under the age of 16 .

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Cynthia J. Larose

Member / Co-Chair, Privacy & Cybersecurity Practice

Cynthia J. Larose is Chair of the firm's Privacy & Cybersecurity Practice, a Certified Information Privacy Professional-US (CIPP-US), and a Certified Information Privacy Professional-Europe (CIPP-E). She works with clients in various industries to develop comprehensive information security programs on the front end, and provides timely counsel when it becomes necessary to respond to a data breach.