In this public interest comment to the Federal Trade Commission, Adam Thierer addresses how the Children’s Online Privacy Protection Act (COPPA) affects online content and digital innovation. It goes without saying that COPPA is a complicated law and rule. When considering the rule and proposals to amend it, it is easy to get lost in the weeds and ignore the bigger picture. That would be a mistake. There are broader, more important questions that need to be asked as part of the Federal Trade Commission’s effort to expand this regulatory regime.
These questions involve not only the costs of increased regulation for online-business interests, but the impact of expanded regulation on market structure, competition, and innovation. More importantly, these questions cut to the core of whether the public (including children) will be served with more and better digital innovations in the future. There is no free lunch. Regulation—even well-intentioned regulation like COPPA—is not a costless exercise. There are profound trade-offs for online content and culture that must always be considered.
Whatever one thinks about the effectiveness or sensibility of the COPPA regulatory model for the Web 1.0 world, it is clear that the regime is being strained by the unforeseen realities of the Web 2.0 world of hyper-ubiquitous connectivity and user-generated content creation and sharing. The digital genie cannot be put back in the bottle. While COPPA may continue to have a marginal role to play in this rapidly evolving world, that role will likely be increasingly limited by the inherent realities of the information age.