Facebook claims revisions to children’s online privacy law would violate First Amendment

In a 20-page filing to the Federal Trade Commission, Facebook argued it should be exempt from the Children’s Online Privacy Protection Act on constitutional grounds. 


Fidel Martinez


Published Oct 1, 2012   Updated Jun 2, 2021, 10:14 am CDT

“Won’t someone please think of the children’s constitutional freedoms?”

That’s how South Park would characterize at least one argument Facebook is making in a 20-page filing to the Federal Trade Commission (FTC) that opposes proposed changes to the Children’s Online Privacy Protection Act (COPPA).

Enacted in 1998, COPPA aims to protect the online privacy of children under the age of 13 by restricting how and what type of personal information companies can collect from them. The FTC announced in August a litany of proposed revisions to COPPA to account for the proliferation of mobile devices, as well as various different social media and networking platforms.

Among the changes would be a broader definition of who is an “operator.” The 1998 incarnation of the law only restricted websites from collecting information  and advertising to minors less than 13 years old. The new measures would include applications, games, ad networks, and third-party plugins.

The changes to COPPA would also include a provision that would ban the use of cookies—a type of tracking file used for the development of targeted ads— on children under the age of 13.

Facebook makes the assertion that a Facebook “Like” is akin to putting a political banner on your front lawn—an action protected by the First Amendment. Therefore, if minors aren’t allowed to like pages and products on Facebook, their speech isn’t free.

The company previously employed this rationalization in August of this year, when Facebook wrote an amicus brief in support of Daniel Ray Carter, a deputy sheriff who was fired from his position after liking the page of his employer’s political rival.

In the filing, the social network also suggests that the FTC can circumvent transgressing on the constitutional rights of minors by adding language that would exempt Facebook from the new restrictions, going so far as to draft its own exemption:

“A commercial Web site or online service or a portion therefore, shall not be deemed directed to children solely because it provides technology to a commercial Web site or online service directed to children, unless the Web site or online service providing the technology is itself directed to children.”

Facebook’s suggested revision doesn’t remove any provisions from COPPA that might trample on the First Amendment rights of children under the age of 13. Instead, it simply makes sites like Facebook exempt from COPPA’s jurisdiction.

Facebook has a vested interest in making itself an exception largely because the company is already looking into making its site available to minors who are not older than 13. In June 2012, the social network seriously entertained the notion of removing the age restriction on it’s site.

Photograph via Lars Plougmann/Flickr 

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*First Published: Oct 1, 2012, 5:42 pm CDT