Belleweather ([info]belleweather) wrote in [info]fandom_lawyers,
2009-09-02 20:37:00

Hrrrmmm...

Does anyone who has been more closely following "SurveyFail" and it's attendant fall out know if the fact that collecting any sort of identifying or demographic information from those who may be under 13 is punishable under COPPA and that there may also be other legal liability based on the fact that minors are potentially being solicited regarding their sexual feelings and habits.

Just curious. I've seen a ton of discussion re: IRB approval and other norms and standards for sociological research, but I haven't seen any discussion of possible legal ramifications -- either for Livejournal as a host or for the researchers and their publisher.

ETA:

For those who may want to play along at home here's a link to the final FTC COPPA rules.

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[info]rivkat

September 3 2009, 01:56:04 UTC 2 years ago

Without diving deeply into this, COPPA is not designed for survey instruments but for commercial endeavors; the hope of publishing a book that might make money is highly unlikely to count as commercial for these purposes. Many sites not technically subject to COPPA comply with it anyway out of an abundance of caution, but even assuming this was a commercial endeavor, it wasn't directed at children.

I can't speak to non-COPPA stuff, and of course this is not legal advice.

[info]belleweather

September 3 2009, 02:26:40 UTC 2 years ago

First, most of my COPPA background is in the legislative policy arena -- the ways in which COPPA allows the FTC to regulate the internet, so my understanding of the specifics of the law are a bit iffy. But I am pretty sure that even though it rests on the foundation of the commerce clause that it is not limited to commercial business. I don't see any limiting language in the reg to support the idea that it is -- especially since it's actual 'purpose' was to keep people from perving on kids in chat rooms.

While the survey wasn't aimed at kids, it sure wasn't placed or advertised in any way that made it not open to kids -- especially since it was posted to a lot of communities that aren't age-restricted (since the designers are morons and don't apparently get that all slash is not porn), so there was IMHO pretty ample opportunity for collection of data from minors, which in my reading of the regs means that they should have complied or at least disclaimed.

Which, you know, means absolutely nothing in the real world enforcement-wise, but is interesting to me in theory. Seeing as I'm a gignormous regulatory geek. :)

[info]rivkat

September 3 2009, 03:14:27 UTC 2 years ago

15 USC 6501:
(2) Operator
The term “operator”—
(A) means any person who operates a website located on the Internet or an online service and who collects or maintains personal information from or about the users of or visitors to such website or online service, or on whose behalf such information is collected or maintained, where such website or online service is operated for commercial purposes, including any person offering products or services for sale through that website or online service, involving commerce [that Congress can constitutionally regulate]

It's in the statute. And that's not my understanding of the statutory purpose, which was not directed at molesters but at marketers. Personal information is defined so broadly that the anti-pervert interpretation doesn't make sense of the statute, either.

And "not aimed at kids" is enough to take you outside COPPA as long as you also comply with COPPA if/when you acquire actual knowledge that a child has provided personal information.

[info]belleweather

September 3 2009, 03:28:34 UTC 2 years ago

My understanding if the legislative history is that the bill began as an outgrowth of some of the many failed attempts to regulate the internet in order to protect the children, and as the bill developed on the floor it ended up applying significantly more to marketing and information collection activities.

And thanks for the info about the use of the term operator. I'm still not sure that you can argue that the purpose here is non-commercial, since the survey it's self existed on a separate non-LJ website which was created and maintained for purposes of the survey which was being used to write the book. I also think there's a factual distinction between gathering material for a possible future book and gathering material very specifically for a book for which you have already been paid a substantial advance.

Since they're asking for age in the survey, it would be fairly easy for them to have actual information that someone >13 is posting. I'm not sure given the design fail in the survey if they could comply if/when they figured that out, even if you read "comply" to only mean removing that data, though. They had a hell of a time removing the data of adult participants who later asked that their data be deleted.

[info]rivkat

September 3 2009, 03:36:40 UTC 2 years ago

It's plainly noncommercial in the First Amendment sense, but there might be uncertainty about whether the statute means "commercial" in that sense. For the record, the line that I think makes sense: commercial = selling stuff to visitors or selling visitors to advertisers; noncommercial: not doing that.

Regardless, I don't think there is a factual distinction between "I have an advance" and "I'd like to get paid," any more than there is a factual distinction between "I already have paying subscribers to my site" and "I'd like to have paying subscribers to my site." In the former case, I'd call it noncommercial, and in the latter commercial: it's method of making money, not hope versus reality, that should control.

If the law were about perverts, the commercial limitation--no matter how broadly construed--would make no sense.

We are in agreement, however, that if COPPA applies, they do have to get rid of that under-13 data when someone answers with an age under 13 and provides actual knowledge, no matter how hard it is. As far as I know, COPPA doesn't care how hard it is; you must do it, and if you do it, you're clear.

[info]rubymiene

September 3 2009, 12:38:05 UTC 2 years ago

I don't think this would qualify as commercial even under a broad reading. I don't think there was advertising on the site, and they weren't planning on selling the actual responses, but rather the conclusions they were going to draw from the responses. The clause "including any person offering products or services for sale through that website or online service" makes Congressional intent rather clear, and it's aimed at something totally different.

[info]elfwreck

September 4 2009, 01:20:09 UTC 2 years ago

It's very possible that "to gather data for our book, which we expect to make us a lot of money" counts as "commercial purposes." It's a bit of hairsplitting, but certainly more tenuous concepts have been upheld in court.

And gathering data about children's sexual activities is high on the list of Acts That Bring Down The Wrath Of Feds. (Not under COPPA, but other laws.)

AFIAK, this quiz didn't even say "You must be 18 or older to take this quiz."

[info]rivkat

September 4 2009, 02:37:39 UTC 2 years ago

I'm not aware of any such interpretations in actual enforcement--if you are, I'd be very interested to hear about them. Hairsplitting about speech is often not a position courts want to be in. In IMS Health v. Ayotte, cert pending, the closest analogy I could find in my brief survey, there was a specific definition of "commercial purpose," which was limited to commercial speech, while the brief unlamented COPA did not define "commercial purpose" but did require anyone covered to be in the "business" of offering the services/goods at issue. Under neither definition would the survey be covered.

Likewise, though things like evidence-based sex ed are particularly controversial, and prosecutors regularly do stings for people soliciting sex from minors, I haven't seen "the wrath of the feds" against people collecting data about minors' sexual activities. I agree that it's hard to get funding for that, but people do publish data on sexual activity among minors and generally stay out of jail. See, for example, research cited by the Guttmacher Institute covering minors' reproductive and sexual behavior--these were people asking about minors' sexual activities, and they were barred by no law from doing so.

[info]nicocoer

September 3 2009, 02:30:14 UTC 2 years ago

I think there are laws about research conducted on minors? That might be more applicable.

[info]belleweather

September 3 2009, 02:32:05 UTC 2 years ago

There may be, I'm not sure. But I think maybe what you're thinking about are the regulations about academic research? Those totally weren't followed, but since this research is commercial and not academic, they apparently don't have to be.

[info]nicocoer

September 3 2009, 02:37:50 UTC 2 years ago

It either has to follow one or the other. And I think maybe there are standards on research regardless?

Any journalism folks know what the standards are for researching a story, if we aren't classifying it under either Academic or Commercial? These guys were BILLING it as Academic research, even if it wasn't, and as An earlier commenter noted they may not fall under the commercial guidelines. Alternatively, If they were billing it as Academic, any academics know if that means that academic standards apply since they self-identified as such?

Reminds me of Chaney disclaiming he has to follow by either Executive OR Congressional laws restricting his power otherwise.

[info]nicocoer

September 3 2009, 02:33:19 UTC 2 years ago

Also, don't most sites that take any personal info from minors have to exclude those under 13, or. . .?

Sorry, I've been hanging out in the Health Care reform debates and some folk have driven me to drink this evening.

[info]belleweather

September 3 2009, 02:38:24 UTC 2 years ago

Yep, COPPA (Children's Online Privacy Protection Act, I probably should have specified since I think congress recycled that acronym from one of their indeceny laws) is the law that requires sites to do special things with any personal information from minors under 13. In the real world, the stuff they have to do to comply is fairly difficult -- like contacting parents and allowing them to request the information is removed -- so most sites just limit what can be posted/shared by kids younger than 13.

I'm so, so sorry about the Health Care Reform debates. It drives me to drink on a regular basis... and I do it for a living. ;) *offers margarita*

[info]nicocoer

September 3 2009, 02:41:52 UTC 2 years ago

Oh, thank you for clarifying the Acronym, I wasn't sure which it fell under- I think it has recycled it in Mental Health Care crap as well, so I was very unsure. (My usual realm is MH/Developmental Disability advocacy, so. . .)

Mmm, Margaritas! unfortunately, my RL drink tonight is just whiskey and cola, but I'll take an online margarita any night!

[info]nicocoer

September 3 2009, 02:54:19 UTC 2 years ago

Also,

It would definitely have fall out under the asking minors about their sexuality/sexual habits thing, ESPECIALLY since they didn't get the needed academic approval which is pretty much the only way you can ask those things from random minors. Since they didn't, it enters the no fly zone.

I've participated in studies where the questions were as unsexualized as you can get for human sexuality research that categorically barred minors and those deemed unfit to consent to sexual activity from even SEEING the questions asked.

*points at icon* even House recognizes this no fly zone.

[info]nicocoer

September 3 2009, 02:56:02 UTC 2 years ago

(If this doesn't fall under the COPPA you discussed, it falls under the other one you've mentioned. )

(Sorry, I lack ability to edit my comments. D:)

[info]rivkat

September 3 2009, 03:18:14 UTC 2 years ago

No, academic approval really isn't the only way to ask these questions. You or I could ask those things from random minors (at least if we weren't governed by our employers' policies against it, which is what the IRB requirement is about). In fact fans do ask each other these questions all the time! What turns you on? What are your squicks? They aren't violating the law even though they may not restrict answers to people over 13.

There are some states that purport to require all "human subjects research" to have IRB review, but they've never been enforced and are, IMHO, unconstitutional as applied to asking questions.

[info]pseudohistorian

September 3 2009, 23:26:46 UTC 2 years ago

As someone who hasn't heard of "SurveyFail" until this moment, I have no idea what anything in this thread is about.

Background, please? Entering "Hrrrmmm..." into a search engine doesn't seem to be helping. ;)

[info]annodomini

September 4 2009, 15:02:56 UTC 2 years ago

Check the linkspam link (posted below) for more details than you ever wanted to know.

It's quite the epic trainwreck, so be warned.

[info]pseudohistorian

September 4 2009, 16:28:56 UTC 2 years ago

Thanks for pointing me to that...

This should serve as a general reminder to people posting here that not everyone will be previously aware of whatever item(s) you're posting about, so some basic background and/or linkage is always appreciated.

[info]elfwreck

September 4 2009, 02:04:32 UTC 2 years ago

This post has been included in a linkspam roundup.

[info]dharma_slut

September 4 2009, 04:46:50 UTC 2 years ago

here's a question; is there any possibility of a class action lawsuit against them or Dutton, to prohibit them from using data that could be damaging to individuals and to women in general?
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