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Congress revisits online privacy legislation

Representative Ed Markey has introduced a bill that would allow children’s online footprints to be erased.Kris Connor/Getty Images

WASHINGTON — Facebook rode more than enthusiasm to its $100 billion stock offering Friday, children’s advocates say. A crucial propellent was investors’ belief that lawmakers will not ban such social networks from selling troves of excruciatingly private details from the lives of teenagers.

For months, legislative attempts to expand and refine a children’s online protection law have moved at the speed of a dial-up connection. The law — itself a teenager, passed before the advent of Facebook, app-enhanced smartphones, and the vast apparatus of data-collection technologies — demands that firms obtain parental consent before tracking the information and the online movements of children. But it only applies to those ages 12 and under.


Now with data trollers creating huge libraries of digital profiles and teenagers often oblivious to the consequences of sharing their lives online, privacy advocates contend the need to broaden the law is urgent.

“As Facebook goes public, it’s obvious that a lot of its value is dependent on the compromise of the privacy of teenagers,” said US Representative Edward Markey, who authored the Children’s Online Privacy Protection Act in 1998. “We have moved from an era of information keepers to an era of data reapers that can algorithmically gather information and keep detailed profiles, even of 13-year-olds.

“That’s the brave new world in which we live today.”

Much of this data is sold by collection companies to advertisers, who use it to detect trends and micro-­target their ads back to the teens. For example, a teen searching online for ways to lose weight could become enticed by an ad for dietary supplements, fed into their network by tracking cookies.

Other searches or posts are deposited and catalogued permanently into a person’s digital profile, all of which, critics fear, could be accessed by health insurers when that person is seeking coverage, college admissions offices, or prospective employers.


Markey, a Democrat from Malden who chairs the Congressional Bipartisan Privacy Caucus with Representative Joe Barton , wants to extend the privacy law to 15-year-olds. An anti-tracking bill he and the Texas Republican introduced a year ago would also ban Internet companies from sending targeted advertising to children under 16 and give these children and their parents the ability to delete their digital footprint and profile with an “eraser button.”

Such a button is “based on the right to be forgotten,” said Markey. “Youthful indiscretions can be erased or overcome in the offline word — it’s forgive and forget — but in the online world these missteps may never be forgotten.”

The bill has 45 sponsors from both parties.

Last week, Twitter endorsed the legislation, prompting Markey to give it a digital shout out: “@Twitter is tech industry leader w support of #donottrack. Other co’s shld follow, give consumers right 2 say NO 2 info collection,” Markey tweeted.

Senator John Kerry, Democrat of Massachusetts, also took note of Twitter’s announcement, saying that he hopes other companies will follow even without a law that would compel them to exercise “respect for people’s choices on how, when, and where to have their information collected.”

Kerry, along with Senator John McCain, an Arizona Republican, is pushing legislation that would allow all consumers to opt out from sharing identifying information and would require online companies, including Google and Facebook, to be more transparent in how they use personal data.


Yet Kerry’s and Markey’s bills have been slow to advance, partly because the handful of privacy advocates at hearings often face an army of industry lobbyists. Both bills have yet to make it out of committee.

Some action is being taken on the regulatory side. The Federal Trade Commission, which has some authority over the Internet companies, is working to modernize guidelines from the 1998 law.

The agency is finalizing rules that would broaden the definition of personal information: a child’s location, facial recognition, and data collected by cookies used for targeted advertising. And websites would be required to protect the data and only store the information for a reasonable amount of time.

But without new legislation, the agency cannot expand those protections to teenagers.

Some marketers, worried about consumer backlash, are making it easier for consumers to opt out of being tracked, but oppose any mandates to do so.

“We think self-regulation is the way to go,’’ said Jerry ­Cerasale, senior vice president for the Direct Marketing Association. “The privacy regime in our view will stifle innovation and e-commerce, the one shining light in this economy.”

Some of the congressional proposals, particularly Markey’s children’s anti-tracking bill, would be too onerous to implement, Cerasale contends.

“It means that marketers would have to discern whether the Internet surfer is a child or not, and that means the marketer would have to learn even more information to determine if that surfer is a child. In fact, it puts a greater collection obligation on marketers.”


Some online marketers have shown a willingness to police themselves, which Markey rejects as a public relations ploy to stall legislative action.

Some question the current law’s effectiveness, even for children under 13. Instead of obtaining parental consent for young users, as the law requires, Facebook and other websites ban those users from setting up their own sites.

Yet, the firms have limited ability to enforce the rule and children often persuade their parents to bypass the ban and set up the site for them.

About 7.5 million preteens are part of the social network, according to Consumer Reports.

Some parents have even set up a site for the child upon birth, creating the first generation of Americans that could have their entire lives catalogued by data brokers.

“If people actually knew what was happening, I think people would care about it and want to have control,’’ said Maneesha Mithal, the FTC’s associate director for the division of privacy and identity collection.

The FTC has issued recommendations meant to simplify privacy policies and make it easier for website users to navigate those policies. Facebook has said it supports many of these measures.

The agency is also urging companies to consider installing eraser buttons on their own for not only teenagers, but for all users. And it is urging websites to provide different levels of privacy defaults, putting in place more stringent settings for teenagers.

FTC also has some jurisdiction over deceptive and unfair practices by websites.


Last year, Facebook agreed to change its privacy practices after the FTC found that the company deceived users who thought their information would remain private but was nevertheless repeatedly made public. And Google could face millions of dollars in fines for circumventing privacy settings in Apple’s Safari browser.

“It’s pretty clear that we have a data arms race in Silicon Valley right now, and they are gobbling up people’s data, with young children and teenagers in the middle of it,” said James Steyer, the founder of Common Sense Media, a children’s online advocacy group.

“Meanwhile, there’s been slow reaction from Congress on this,” Steyer said. “Some are moving the ball, but I don’t think Congress recognizes the scope of the issue.”

Bobby Caina Calvan can be reached at bobby.calvan@globe.com. Follow him on twitter @GlobeCalvan.