Brief History of Data Protection Laws for Children in the USA and EU

Data protection laws have a long history, and the protection of children's personal data is a relatively new development. In the USA, the first federal privacy law to address children's online privacy was the Children's Online Privacy Protection Act (COPPA), which was enacted in 1998. COPPA requires website operators to obtain verifiable parental consent before collecting personal information from children under the age of 13. COPPA also requires website operators to provide notice to parents about their information collection practices and to delete information collected from children upon request.

In the European Union, the General Data Protection Regulation (GDPR) came into effect in 2018 and is the primary law governing data protection in the EU. The GDPR includes specific provisions for the protection of children's personal data, building upon the framework established by the EU's previous Data Protection Directive of 1995. The GDPR defines a child as anyone under the age of 16, although member states can choose to lower this age to 13. The GDPR requires data controllers to obtain parental consent for children under the age of 16 (or the lower age limit set by member states) before collecting and processing their personal data.

It is important to note that the USA and EU differ in their approach to data protection laws, with the USA taking a sectoral approach and the EU taking a comprehensive approach. In the USA, data protection laws are fragmented and largely focused on specific sectors, such as healthcare or financial services. In contrast, the GDPR is a comprehensive law that applies to all sectors and covers all personal data, including data related to children.

Key Principles and Concepts of Data Protection Laws for Children in the USA and EU

Data protection laws for children in the USA and EU share some common principles and concepts, such as the need for consent, transparency, and accountability in the collection and processing of children's personal data. However, there are also significant differences in the way these principles and concepts are applied in each region.

In the USA, COPPA is the primary law governing children's online privacy, and it sets out specific requirements for obtaining verifiable parental consent before collecting personal information from children under the age of 13. COPPA also requires website operators to provide notice to parents about their information collection practices and to delete information collected from children upon request.

In contrast, the GDPR applies to all personal data, including data related to children, and sets out a broader set of principles and concepts for data protection. Under the GDPR, data controllers are required to obtain explicit consent from parents or legal guardians before collecting and processing children's personal data. The GDPR also requires data controllers to provide clear and concise information to data subjects, including children, about their data collection practices and to ensure that data subjects have the right to access and correct their personal data.

Another important concept in data protection laws for children is the "right to be forgotten," which allows individuals to request that their personal data be erased from databases and online platforms. In the USA, the right to be forgotten is not specifically addressed in COPPA, but some states have enacted their own data protection laws that include this concept. In the EU, the GDPR includes a specific right to erasure, which allows data subjects to request that their personal data be erased under certain circumstances.

Overall, data protection laws for children in the USA and EU share some common principles and concepts, but there are also significant differences in the way these principles and concepts are applied. The USA takes a sectoral approach to data protection, focusing primarily on children's online privacy, while the EU takes a comprehensive approach, applying data protection principles to all sectors and all personal data.

Rights of Children and Their Parents or Legal Guardians under Data Protection Laws

Both the USA and EU have specific provisions in their data protection laws that protect the rights of children and their parents or legal guardians. In the USA, COPPA requires website operators to provide parents with access to their child's personal information, the ability to request that the information be deleted, and the right to refuse the collection or use of their child's personal information. COPPA also requires website operators to provide parents with notice of their information collection practices and to obtain verifiable parental consent before collecting personal information from children under the age of 13.

In the EU, the GDPR provides similar protections for children and their parents or legal guardians. The GDPR requires data controllers to obtain parental consent for children under the age of 16 (or the lower age limit set by member states) before collecting and processing their personal data. The GDPR also gives children the right to access their personal data, to have their data corrected or erased, and to object to the processing of their personal data.

One key difference between the USA and EU data protection laws for children is the scope of the rights granted to children and their parents or legal guardians. While COPPA focuses primarily on obtaining parental consent and providing parents with control over their child's personal information, the GDPR provides more extensive rights to children themselves. For example, the GDPR gives children the right to request that their data be erased, which is not explicitly provided for under COPPA.

It is also worth noting that the enforcement mechanisms and penalties for violations of data protection laws for children differ between the USA and the EU. In the USA, COPPA violations can result in fines of up to $43,280 per violation, while in the EU, the GDPR allows for fines of up to 4% of a company's global annual revenue or €20 million (whichever is greater). The EU also has a more robust enforcement framework than the USA, with a dedicated data protection authority (DPA) in each member state and the ability to pursue cross-border enforcement actions through the European Data Protection Board.

Case Study - TikTok: A Comparative Analysis of Data Protection for Children in the USA and EU

TikTok is a popular social media platform that allows users to create and share short videos. The platform has become particularly popular among children and teenagers, raising concerns about the collection and use of their personal data. In 2019, the US Federal Trade Commission (FTC) reached a settlement with TikTok over allegations that the company had violated COPPA by collecting personal information from children without obtaining parental consent. Under the terms of the settlement, TikTok agreed to pay a fine of $5.7 million and to implement new measures to protect children's privacy.

In the EU, TikTok has also faced scrutiny over its data protection practices. In February 2021, the Irish Data Protection Commission (DPC), which is the lead regulator for TikTok in the EU, announced that it had launched an investigation into the company's data protection practices. The investigation is focused on whether TikTok has complied with the GDPR's requirements for obtaining parental consent for the collection and processing of children's personal data. The DPC's investigation is ongoing, but it has the potential to result in significant fines and other penalties for TikTok.

The TikTok case highlights some key differences between data protection laws for children in the USA and EU. Under COPPA, website operators are required to obtain verifiable parental consent before collecting personal information from children under the age of 13. However, the FTC's settlement with TikTok suggests that the requirements for obtaining parental consent may not be as strict as they could be, given that TikTok was able to collect personal information from millions of children without obtaining consent. In contrast, the GDPR sets a higher standard for obtaining parental consent, requiring data controllers to take "reasonable efforts" to verify that consent has been given.

The TikTok case also illustrates the importance of strong enforcement mechanisms for data protection laws. While the FTC's settlement with TikTok resulted in a significant fine, it is unclear whether the fine will be a sufficient deterrent to prevent other companies from violating COPPA.

In the EU, the GDPR's enforcement mechanisms are stronger, with regulators empowered to impose fines of up to 4% of a company's global revenue for violations of the law. The ongoing investigation into TikTok by the Irish DPC demonstrates that the GDPR is being taken seriously and that regulators are willing to use their enforcement powers to hold companies accountable for violations of data protection laws.

Opportunities for Collaboration and Improvement in Data Protection Laws for Children in the USA and EU

While there are many challenges to implementing effective data protection laws for children in both the USA and the EU, there are also opportunities for collaboration and improvement that could benefit both regions. Some of the key opportunities for collaboration and improvement include:

Standardization of Data Protection Laws: While the GDPR is a comprehensive data protection law, the USA lacks a similar national law. The fragmentation of data protection laws across different sectors and states in the USA can make compliance difficult for businesses and confusing for consumers. By standardizing data protection laws across the USA and the EU, there could be greater clarity and consistency in how businesses and consumers approach data protection, particularly for children's personal data.

Improved Privacy Education and Awareness: Both the USA and the EU could benefit from improved privacy education and awareness campaigns, particularly for children and their parents. By providing clearer and more accessible information about data protection laws and best practices for protecting personal data, both regions could help reduce confusion and increase compliance with data protection laws. This could also help to increase public trust and confidence in how businesses and governments handle personal data.

Cross-border Collaboration and Cooperation: As data protection becomes an increasingly global issue, there is a growing need for cross-border collaboration and cooperation. The USA and the EU could benefit from increased collaboration and information sharing on data protection issues, particularly related to the protection of children's personal data. By sharing best practices, experiences, and expertise, both regions could improve their data protection laws and enforcement efforts.

Increased Funding and Resources: Effective data protection laws require adequate funding and resources for enforcement and compliance. Both the USA and the EU could benefit from increased funding and resources for their data protection agencies, particularly for those agencies tasked with protecting children's personal data. By providing adequate funding and resources, both regions could improve their ability to enforce data protection laws and hold businesses accountable for violations.

Conclusion
This comparative analysis has highlighted the similarities and differences between data protection laws for children in the USA and the EU. The analysis has shown that both regions have implemented laws that aim to protect children's personal data, but there are significant differences in their approach.

The GDPR is a comprehensive data protection law that provides strong protections for children's personal data, while the USA lacks a similar national law, which can result in fragmentation of laws and confusion for businesses and consumers. However, the USA has enacted specific laws, such as COPPA, to protect children's personal data in certain sectors.

The analysis also identified challenges faced by both regions in implementing effective data protection laws for children, including the need for increased resources and funding for enforcement, the difficulty in balancing privacy protections with the benefits of data use, and the need for improved privacy education and awareness.

Despite these challenges, there are opportunities for collaboration and improvement in data protection laws for children in both the USA and the EU. These include standardizing data protection laws, improving privacy education and awareness, increasing cross-border collaboration and cooperation, and providing adequate funding and resources for enforcement.

For policymakers and stakeholders in each region, the implications of this analysis are clear. Policymakers in the USA should consider enacting a comprehensive data protection law to provide stronger protections for children's personal data and reduce fragmentation of laws across different sectors and states. Additionally, policymakers in both regions should prioritize improving privacy education and awareness to help reduce confusion and increase compliance with data protection laws.

Stakeholders, such as businesses and advocacy groups, should also take note of the challenges and opportunities identified in this analysis. They should prioritize compliance with data protection laws and work to improve privacy education and awareness for their employees and customers. They should also consider participating in cross-border collaboration and cooperation to help improve data protection laws and enforcement efforts.

In terms of future research and action, it is clear that more needs to be done to understand the effectiveness of data protection laws for children in both the USA and the EU. Future research should focus on evaluating the impact of these laws on children's privacy and data protection, as well as identifying opportunities for improvement.

In conclusion, this comparative analysis has highlighted the similarities and differences between data protection laws for children in the USA and the EU. While there are challenges to implementing effective data protection laws, there are also opportunities for collaboration and improvement that could benefit both regions. By working together and prioritizing data protection for children, policymakers and stakeholders can help ensure that children's personal data is protected and that they can safely participate in the digital world.

References:

• Children's Online Privacy Protection Act (COPPA) (1998). Retrieved from https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/childrens-online-privacy-protection-rule
• European Union General Data Protection Regulation (GDPR) (2018). Retrieved from https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32016R0679
• Federal Trade Commission. (2019). Complying with COPPA: Frequently Asked Questions. Retrieved from https://www.ftc.gov/tips-advice/business-center/guidance/complying-coppa-frequently-asked-questions
• European Data Protection Board. (2020). Guidelines 3/2019 on processing of personal data concerning children under the GDPR. Retrieved from https://edpb.europa.eu/our-work-tools/our-documents/guidelines/guidelines-32019-processing-personal-data-concerning_en
• Federal Trade Commission. (2019). FTC fines Musical.ly $5.7 million for violating children’s privacy. Retrieved from https://www.ftc.gov/news-events/press-releases/2019/02/ftc-fines-musically-57-million-violating-childrens-privacy
• Irish Data Protection Commission. (2021). DPC statement on TikTok inquiry. Retrieved from https://www.dataprotection.ie/en/news-media/press-releases/dpc-statement-tiktok-inquiry
• Article 29 Working Party. (2016). Guidelines on the protection of children's personal data under the GDPR. Retrieved from https://ec.europa.eu/newsroom/article29/item-detail.cfm?item_id=611237
• Federal Trade Commission. (2017). Children's Online Privacy Protection Rule: A Six-Step Compliance Plan for Your Business. Retrieved from https://www.ftc.gov/tips-advice/business-center/guidance/childrens-online-privacy-protection-rule-six-step-compliance.