Back in December, I wrote about the changes the Federal Trade Commission (FTC) had made in its rule for the Children’s Online Privacy Protection Act (COPPA) (see, “Protecting Kids’ Online Privacy:New Parental Controls”; December 20, 2012). Just briefly, COPPA covers operators of online services and websites directed to children 13 years and younger.  Operators of those sites must give notice to parents and get their verifiable consent before collecting, using or disclosing any personal information from children in that age group.

In my December blog, I outlined some of the key changes the FTC has made in the COPPA Rule.   One of the key changes I highlighted is the new definition for what constitutes “personal information”.  The new definition is a significant change as it now includes photos, videos and audio files that contain a child’s image or voice.  But I learned last week that there is an open question about whether that new “personal information” definition will apply retroactively as well as prospectively.

That issue was raised during a very interesting panel discussion on the new COPPA Rule that I attended at the International Association of Privacy Professionals 2013 Global Privacy Summit.  An audience member asked if operators of sites that are directed to children are going to have to go back and now give parents notice and obtain their consent for photos, videos and audio files that have been previously posted with a child’s image or voice.  Under the prior COPPA Rule, parental notice and consent were not required before a site operator did so.

The answer from a senior FTC attorney was that there is no definitive FTC guidance to site operators on this question.  So why is this an important update for parents?  Without specific FTC guidance, some site operators might decide to go back, give parents notice and ask for their consent to maintain any photos, or videos or audio files containing a child’s image or voice.  Alternatively, some site operators might decide to ask that any photos, or videos or audio files be removed and/or replaced with photos or videos or audio files without the child’s image or voice.

I want parents to be aware about this open issue. Site operators have to be in compliance with the new COPPA Rule by July 1st.  I don’t know, and won’t even try to predict, how site operators will handle this issue. But I do want parents to know that they could start receiving new notices and to understand the background in case that happens.