1 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

FEDERAL TRADE COMMISSION, 

and 

PEOPLE OF THE STATE OF NEW 

YORK, by LETITIA JAMES, 

Attorney General of the State of New York, 

Plaintiffs, 

vs. 

GOOGLE LLC, 

a Delaware limited liability company, 

and 

YOUTUBE, LLC, 

a Delaware limited liability company, 

Defendants. 

Case No.: 1:19-cv-02642

STIPULATED ORDER FOR 

PERMANENT INJUNCTION AND 

CIVIL PENALTY JUDGMENT 

Plaintiffs, the Federal Trade Commission (“FTC” or “Commission”) and The People of 

the State of New York (“State of New York”) (collectively, “Plaintiffs”) filed their Complaint 

for Permanent Injunction, Civil Penalties, and Other Relief (“Complaint”) in this matter, 

pursuant to Sections 13(b) and 16(a)(1) of the Federal Trade Commission Act (“FTC Act”), 15 

U.S.C. §§ 53(b) and 56(a)(1), the Children’s Online Privacy Protection Act (“COPPA”), 15 

U.S.C. §§ 6502(c), 6504(a)(1), and 6505(d), and the Commission’s Children’s Online Privacy 

Protection Rule (“Rule” or “COPPA Rule”), 16 C.F.R. Part 312. Defendants have waived 

service of the summons and the Complaint. Plaintiffs and Defendants stipulate to the entry of 

this Stipulated Order for Permanent Injunction and Civil Penalty Judgment (“Order”) to resolve 

all matters in dispute in this action between them. 

THEREFORE, IT IS ORDERED as follows: 

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FINDINGS 

1. This Court has jurisdiction over this matter.

2. The Complaint charges that Defendants violated the COPPA Rule and Section 5

of the FTC Act, 15 U.S.C. § 45, by failing to post a privacy policy on their online service 

providing clear, understandable, and complete notice of their information practices with respect 

to the Collection of Personal Information from Children, failing to provide direct notice to 

Parents of such information practices, and failing to Obtain Verifiable Parental Consent prior to 

Collecting, using, or Disclosing Personal Information from Children. 

3. Defendants neither admit nor deny any of the allegations in the Complaint, except

as specifically stated in this Order. Only for purposes of this action, Defendants admit the facts 

necessary to establish jurisdiction. 

4. Defendants waive any claim that they may have under the Equal Access to Justice

Act, 28 U.S.C. § 2412, concerning the prosecution of this action through the date of this Order, 

and agree to bear their own costs and attorney fees. 

5. Defendants and Plaintiffs waive all rights to appeal or otherwise challenge or

contest the validity of this Order. 

DEFINITIONS 

For the purpose of this Order, the following definitions apply: 

A. “Channel Owner” means individuals or entities who upload videos onto the

YouTube Service.

B. “Child” or “Children” means an individual or individuals under the age of 13.

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C. “Clear and Conspicuous” means that a required disclosure is difficult to miss

(i.e., easily noticeable) and easily understandable by ordinary consumers, including in all of the 

following ways: 

1. In any communication that is solely visual or solely audible, the disclosure

must be made through the same means through which the communication is 

presented. In any communication made through both visual and audible means, 

such as a television advertisement, the disclosure must be presented 

simultaneously in both the visual and audible portions of the communication even 

if the representation requiring the disclosure is made in only one means. 

2. A visual disclosure, by its size, contrast, location, the length of time it

appears, and other characteristics, must stand out from any accompanying text or 

other visual elements so that it is easily noticed, read, and understood. 

3. An audible disclosure, including by telephone or streaming video, must be

delivered in a volume, speed, and cadence sufficient for ordinary consumers to 

easily hear and understand it. 

4. In any communication using an interactive electronic medium, such as the

Internet or software, the disclosure must be unavoidable.

5. The disclosure must use diction and syntax understandable to ordinary

consumers and must appear in each language in which the representation that 

requires the disclosure appears. 

6. The disclosure must comply with these requirements in each medium

through which it is received, including all electronic devices and face-to-face 

communications. 

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7. The disclosure must not be contradicted or mitigated by, or inconsistent

with, anything else in the communication. 

8. When the representation or sales practice targets a specific audience, such

as Children, the elderly, or the terminally ill, “ordinary consumers” includes 

reasonable members of that group. 

D. “Collects” or “Collection” means the gathering of any Personal Information from

a Child by any means, including but not limited to: 

1. Requesting, prompting, or encouraging a Child to submit Personal

Information online; 

2. Enabling a Child to make Personal Information publicly available in

identifiable form. An Operator shall not be considered to have Collected Personal 

Information if it takes reasonable measures to Delete all or virtually all Personal 

Information from a Child’s postings before they are made public and also to 

Delete such Personal Information from its records; or 

3. Passive tracking of a Child online.

E. “Compliance Date” means four months after entry of this Order.

F. “Content” means any video or channel page found on the YouTube Service.

G. “Defendants” means Google LLC, a Delaware limited liability company, and

YouTube, LLC, a Delaware limited liability company, and their successors and assigns. 

H. “Delete” means to remove Personal Information such that it is not maintained in

retrievable form and cannot be retrieved in the normal course of business. 

I. “Disclose” or “Disclosure” means, with respect to Personal Information:

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1. The Release of Personal Information Collected by an Operator from a

Child in identifiable form for any purpose, except where an Operator provides 

such information to a Person who provides Support for the Internal Operations of 

the Website or Online Service; and 

2. Making Personal Information Collected by an Operator from a Child

publicly available in identifiable form by any means, including but not limited to 

a public posting through the Internet, or through a personal home page or screen 

posted on a website or online service; a pen pal service; an electronic mail 

service; a message board; or a chat room. 

J. “Internet” means collectively the myriad of computer and telecommunications

facilities, including equipment and operating software, which comprise the interconnected worldwide network of networks that employ the Transmission Control Protocol/Internet Protocol, or 

any predecessor or successor protocols to such protocol, to communicate information of all kinds 

by wire, radio, or other methods of transmission. 

K. “Obtaining Verifiable Parental Consent” means making any reasonable effort

(taking into consideration available technology) to ensure that before Personal Information is 

Collected from a Child, a Parent of the Child: 

1. Receives notice of the Operator’s Personal Information Collection, use,

and Disclosure practices; and 

2. Authorizes any Collection, use, and/or Disclosure of the Personal

Information, using a method reasonably calculated, in light of available 

technology, to ensure that the Person providing consent is the Child’s Parent. 

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L. “Online Contact Information” means an email address or any other substantially

similar identifier that permits direct contact with a Person online, including but not limited to, an 

instant messaging user identifier, a voice over internet protocol (VOIP) identifier, or a video chat 

user identifier. 

M. “Operator” 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, or offers products or services for sale through that website or online service, where 

such website or online service is operated for commercial purposes involving commerce among 

the several States or with one or more foreign nations; in any territory of the United States or in 

the District of Columbia, or between any such territory and another such territory or any State or 

foreign nation; or between the District of Columbia and any State, territory, or foreign nation. 

This definition does not include any nonprofit entity that would otherwise be exempt from 

coverage under Section 5 of the Federal Trade Commission Act (15 U.S.C. § 45). Personal 

Information is Collected or maintained on behalf of an Operator when: 

1. It is Collected or maintained by an agent or service provider of the

Operator; or 

2. The Operator benefits by allowing another Person to Collect Personal

Information directly from users of such website or online service. 

N. “Parent” includes a legal guardian.

O. “Person” means any individual, partnership, corporation, trust, estate,

cooperative, association, or other entity. 

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P. “Personal Information” means individually identifiable information about an

individual Collected online, including: 

1. A first and last name;

2. A home or other physical address including street name and name of a city

or town; 

3. Online Contact Information;

4. A screen or user name where it functions in the same manner as Online

Contact Information; 

5. A telephone number;

6. A Social Security number;

7. A persistent identifier that can be used to recognize a user over time and

across different websites or online services, where such persistent identifier is 

used for functions other than or in addition to Support for the Internal Operations 

of the Website or Online Service. Such persistent identifier includes, but is not 

limited to, a customer number held in a cookie, an Internet Protocol (IP) address, 

a processor or device serial number, or unique device identifier; 

8. A photograph, video, or audio file where such file contains a Child’s

image or voice; 

9. Geolocation information sufficient to identify street name and name of a

city or town; or 

10. Information concerning the Child or the Parents of that Child that the

Operator Collects online from the Child and combines with an identifier described 

in this definition. 

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Q. “Release of Personal Information” means the sharing, selling, renting, or

transfer of Personal Information to any Third Party. 

R. “Support for the Internal Operations of the Website or Online Service”

means 

1. Those activities necessary to:

a) Maintain or analyze the functioning of the website or online

service;

b) Perform network communications;

c) Authenticate users of, or personalize the content on, the

website or online service;

d) Serve contextual advertising on the website or online service or

cap the frequency of advertising;

e) Protect the security or integrity of the user, website, or online

service;

f) Ensure legal or regulatory compliance; or

g) Fulfill a request of a Child as permitted by Section 312.5(c)(3) and

(4) of the COPPA Rule (attached as Appendix A);

2. So long as the information Collected for these activities listed in 1(a) – (g)

is not used or Disclosed to contact a specific individual, including through 

behavioral advertising, to amass a profile on a specific individual, or for any other 

purpose. 

S. “Third Party” means any Person who is not:

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1. An Operator with respect to the Collection or maintenance of Personal

Information on the website or online service; or 

2. A Person who provides Support for the Internal Operations of the Website

or Online Service and who does not use or Disclose information protected under 

the COPPA Rule (attached as Appendix A). 

T. “Website or Online Service Directed to Children” means a commercial website

or online service, or portion thereof, that is targeted to Children. 

1. In determining whether a website or online service, or a portion thereof, is

directed to Children, the Commission will consider its subject matter, visual 

content, use of animated characters or child-oriented activities and incentives, 

music or other audio content, age of models, presence of child celebrities or 

celebrities who appeal to Children, language or other characteristics of the 

website or online service, as well as whether advertising promoting or appearing 

on the website or online service is directed to Children. The Commission will 

also consider competent and reliable empirical evidence regarding audience 

composition, and evidence regarding the intended audience. 

2. A website or online service shall be deemed directed to Children when it

has actual knowledge that it is Collecting Personal Information directly from 

users of another Website or Online Service Directed to Children. 

3. A website or online service that is directed to Children under the criteria

set forth in paragraph (1) of this definition, but that does not target Children as its 

primary audience, shall not be deemed directed to Children if it: 

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a) Does not Collect Personal Information from any visitor prior to

Collecting age information; and

b) Prevents the Collection, use, or Disclosure of Personal Information

from visitors who identify themselves as under age 13 without first

complying with the notice and parental consent provisions of the

COPPA Rule (attached as Appendix A).

4. A website or online service shall not be deemed directed to Children

solely because it refers or links to a commercial Website or Online Service 

Directed to Children by using information location tools, including a directory, 

index, reference, pointer, or hypertext link. 

U. “YouTube Service” means the general audience YouTube user-generated videosharing platform(s), currently at www.youtube.com and on YouTube mobile application(s), on 

which, among other things, consumers can view videos or upload videos to share. 

ORDER

I. INJUNCTION CONCERNING DESIGNATING CONTENT ON THE YOUTUBE

SERVICE AS DIRECTED TO CHILDREN 

IT IS ORDERED that, no later than the Compliance Date, Defendants and Defendants’ 

officers, agents, employees, and attorneys, and all other Persons in active concert or participation 

with any of them, who receive actual notice of this Order, whether acting directly or indirectly, 

in connection with operating the YouTube Service, are permanently restrained and enjoined 

from:

A. Failing to develop, implement, and maintain a system for Channel Owners to

designate whether their Content on the YouTube Service is directed to Children. Such system 

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shall include a Clear and Conspicuous notice that Content made available on the YouTube 

Service that is directed to Children may be subject to the Children’s Online Privacy Protection 

Rule, 16 C.F.R. Part 312 (attached as Appendix A) and that Channel Owners are obligated to 

designate such Content as directed to Children; and 

B. Failing to provide annual training regarding complying with the Children’s Online

Privacy Protection Rule, 16 C.F.R. Part 312 (attached as Appendix A), for each Person 

responsible for managing Defendants’ relationships with Channel Owners on the YouTube 

Service.

II. INJUNCTION CONCERNING COLLECTION OF PERSONAL INFORMATION

FROM CHILDREN 

IT IS ORDERED that, no later than the Compliance Date, Defendants and Defendants’ 

officers, agents, employees, and attorneys, and all other persons in active concert or participation 

with any of them, who receive actual notice of this Order, whether acting directly or indirectly, 

in connection with operating a Website or Online Service Directed to Children on the YouTube 

Service are hereby permanently restrained and enjoined from: 

A. Failing to make reasonable efforts, taking into account available technology, to

ensure that a Parent of a Child receives direct notice of Defendants’ practices with regard to the 

Collection, use, or Disclosure of Personal Information from Children, including notice of any 

material change in the Collection, use, or Disclosure practices to which the Parent has 

previously consented, unless the Children’s Online Privacy Protection Rule, 16 C.F.R. Part 312 

(attached as Appendix A), provides an exception to providing such notice; 

B. Failing to post a prominent and clearly labeled link to an online notice of its

information practices with regard to Children on the home or landing page or screen of its 

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website or online service, and at each area of the website or online service where Personal 

Information is Collected from Children, unless the Children’s Online Privacy Protection Rule, 16 

C.F.R. Part 312 (attached as Appendix A), provides an exception to providing such notice;

C. Failing to Obtain Verifiable Parental Consent before any Collection, use, or

Disclosure of Personal Information from Children, including consent to any material change in 

the Collection, use, or Disclosure practices to which the Parent has previously consented, unless 

the Children’s Online Privacy Protection Rule, 16 C.F.R. Part 312 (attached as Appendix A), 

provides an exception to Obtaining Verifiable Parental Consent; and 

D. Violating the Children’s Online Privacy Protection Rule, 16 C.F.R. Part 312

(attached as Appendix A). 

III. INJUNCTION CONCERNING USE OF PREVIOUSLY

COLLECTED PERSONAL INFORMATION 

IT IS FURTHER ORDERED that Defendants, Defendants’ officers, agents, employees, 

and attorneys, and all other Persons in active concert or participation with any of them, who 

receive actual notice of this Order, are ordered to refrain, within ninety (90) days of the 

Compliance Date, from Disclosing, using, or benefitting from Personal Information previously 

Collected from users of Content that is designated as directed to Children by a Channel Owner 

under the system required under Section I.A. above, as long as such designation occurs within 

sixty (60) days of the Compliance Date. Provided, however, that such Personal Information may 

be Disclosed to the extent requested by a government agency or required by law, regulation, or 

court order. 

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IV. CIVIL PENALTY AND OTHER MONETARY RELIEF

IT IS FURTHER ORDERED that: 

A. Judgment in the amount of one hundred and thirty six million dollars

($136,000,000) is entered in favor of Plaintiff FTC against Defendants, jointly and severally, as a 

civil penalty. 

B. Defendants are ordered to pay to Plaintiff FTC one hundred thirty six million

dollars ($136,000,000), which, as Defendants stipulate, their undersigned counsel holds in 

escrow for no purpose other than payment to the Commission. Such payment must be made 

within thirty (30) days of entry of this Order by electronic fund transfer in accordance with 

instructions previously provided by a representative of the Commission. 

C. Judgment in the amount of thirty four million dollars ($34,000,000) is entered in

favor of Plaintiff State of New York against Defendants, jointly and severally, as damages, 

restitution, or other compensation to its residents. 

D. Defendants are ordered to pay to Plaintiff State of New York, by making payment

to State of New York Department of Law, thirty four million dollars ($34,000,000). Such 

payment must be made within thirty (30) days of entry of this Order by wire transfer in 

accordance with instructions provided by a representative of Plaintiff State of New York. 

V. ADDITIONAL MONETARY PROVISIONS

IT IS FURTHER ORDERED that: 

A. Defendants relinquish dominion and all legal and equitable right, title, and interest

in all assets transferred pursuant to this Order and may not seek the return of any assets. 

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B. The facts alleged in the Complaint will be taken as true, without further proof, in

any subsequent civil litigation by or on behalf of the Commission or the State of New York in a 

proceeding to enforce its rights to any payment or monetary judgment pursuant to this Order. 

C. The facts alleged in the Complaint establish all elements necessary to sustain an

action by the Commission or the State of New York pursuant to Section 523(a)(2)(A) of the 

Bankruptcy Code, 11 U.S.C. § 523(a)(2)(A), and this Order will have collateral estoppel effect 

for such purposes. 

D. Defendants acknowledge that their Taxpayer Identification Numbers, which

Defendants must submit to the Commission, may be used for collecting and reporting on any 

delinquent amount arising out of this Order, in accordance with 31 U.S.C. § 7701. 

VI. ORDER ACKNOWLEDGMENTS

IT IS FURTHER ORDERED that Defendants obtain acknowledgments of receipt of this 

Order: 

A. Each Defendant, within seven (7) days of entry of this Order, must submit to the

Commission and the State of New York an acknowledgment of receipt of this Order sworn under 

penalty of perjury. 

B. For five (5) years after entry of this Order, each Defendant must deliver a copy of

this Order to: (1) all principals, officers, directors, and LLC managers and members; (2) all 

employees, agents, and representatives who have supervisory responsibilities relating to the 

subject matter of Sections I and II of this Order; and (3) any business entity resulting from any 

change in structure as set forth in the Section titled Compliance Reporting. Delivery must occur 

within seven (7) days of entry of this Order for current personnel. For all others, delivery must 

occur before they assume their responsibilities. 

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C. From each individual or entity to which a Defendant delivered a copy of this

Order, that Defendant must obtain, within thirty (30) days, a signed and dated acknowledgment 

of receipt of this Order. 

VII. COMPLIANCE REPORTING

IT IS FURTHER ORDERED that Defendants make timely submissions to the 

Commission and the State of New York: 

A. One year after the Compliance Date, each Defendant must submit a compliance

report, sworn under penalty of perjury. In such report, each Defendant must: 

1. Identify the primary physical, postal, and email address and telephone

number, as designated points of contact, which representatives of the Commission 

and the State of New York may use to communicate with that Defendant; 

2. Identify all of Defendant’s businesses involved in operating the YouTube

Service or in Collecting, using, or Disclosing Personal Information from Children 

on or from the YouTube Service by all of their names, telephone numbers, and 

physical, postal, email, and Internet addresses; 

3. Describe the activities of each such business directly involved with

operating the YouTube Service, including the goods and services offered and the 

means of advertising, marketing, and sales; 

4. Describe in detail whether and how Defendants are in compliance with

each Section of this Order; 

5. Provide a copy of each materially different version of any privacy notice

posted on or otherwise applicable to the YouTube Service or sent to users of the 

YouTube Service; 

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6. Describe in detail the methods used, if any, to track Child users of the

YouTube Service (including methods used for passive tracking and means for 

users to control or opt out of tracking), and the measures taken to avoid tracking 

Children; 

7. Describe in detail the methods used to Obtain Verifiable Parental Consent

prior to any Collection, use, and/or Disclosure of Personal Information from 

Children through the YouTube Service; 

8. Describe in detail the means provided for Parents to review the Personal

Information Collected from their Children through the YouTube Service and to 

refuse to permit its further use or maintenance; and 

9. Provide a copy of each Order Acknowledgment obtained pursuant to this

Order, unless previously submitted to the Commission. 

B. For ten (10) years after entry of this Order, each Defendant must submit a

compliance notice, sworn under penalty of perjury, within fourteen (14) days of any change in: 

(1) any designated point of contact; or (2) the structure of that Defendant or any entity that

Defendant has any ownership interest in or controls directly or indirectly that may affect 

compliance obligations arising under this Order, including: creation, merger, sale, or dissolution 

of the entity or any subsidiary, parent, or affiliate that engages in any acts or practices subject to 

this Order. 

C. Each Defendant must submit to the Commission and the State of New York

notice of the filing of any bankruptcy petition, insolvency proceeding, or similar proceeding by 

or against such Defendant within fourteen (14) days of its filing. 

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D. Any submission to the Commission and the State of New York required by this

Order to be sworn under penalty of perjury must be true and accurate and comply with 28 U.S.C. 

§ 1746, such as by concluding: “I declare under penalty of perjury under the laws of the United

States of America that the foregoing is true and correct. Executed on: _____” and supplying the 

date, signatory’s full name, title (if applicable), and signature. 

E. Unless otherwise directed by a Commission representative in writing, all

submissions to the Commission pursuant to this Order must be emailed to DEbrief@ftc.gov or 

sent by overnight courier (not the U.S. Postal Service) to: Associate Director for Enforcement, 

Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW, 

Washington, DC 20580. The subject line must begin: FTC v. Google LLC and YouTube, LLC, 

FTC File No. 1723083. 

F. Unless otherwise directed by a State of New York representative in writing, all

submissions to the State of New York pursuant to this Order must be emailed to 

ifraud@ag.ny.gov and sent by overnight courier (not the U.S. Postal Service) to: Bureau Chief, 

Bureau of Internet and Technology, New York State Attorney General’s Office, 28 Liberty 

Street, New York, New York 10005. The subject line must begin: FTC v. Google LLC and 

YouTube, LLC, FTC File No. 1723083. 

VIII. RECORDKEEPING

IT IS FURTHER ORDERED that Defendants must create certain records for ten (10) 

years after entry of the Order, and retain each such record for five (5) years. Specifically, each 

Defendant in connection with operating the YouTube Service must create and retain the 

following records: 

A. Accounting records showing the revenues of all goods and services sold;

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B. Personnel records showing, for each Person providing services, whether as an

employee or otherwise, that Person’s: name; addresses; telephone numbers; job title or position; 

dates of service; and (if applicable) the reason for termination; 

C. All records necessary to demonstrate full compliance with each provision of this

Order, including all submissions to the Commission and the State of New York; 

D. Records of all consumer complaints relating to the unauthorized Collection, use or

Disclosure of Personal Information of Children interacting with the YouTube Service, and any 

response; 

E. A copy of each materially different form, page, or screen created, maintained, or

otherwise provided by each Defendant through which Personal Information of Children is 

Collected through the YouTube Service, and a copy of each materially different document 

containing any representation regarding Collection, use, and Disclosure practices pertaining to 

Personal Information from Children Collected through the YouTube Service. Each webpage 

copy shall be accompanied by the URL of the webpage where the material was posted online. 

Electronic copies shall include all text and graphics files, audio scripts, and other computer files 

used in presenting information on the Internet; and 

F. A copy of each unique advertisement, other marketing material, telemarketing

script, or other representation related to the Collection of Personal Information of Children that is 

made in connection with promoting or offering for sale the YouTube Service.

IX. COMPLIANCE MONITORING

IT IS FURTHER ORDERED that, for the purpose of monitoring Defendants’ compliance 

with this Order: 

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A. Within fourteen (14) days of receipt of a written request from a representative of

the Commission or the State of New York, each Defendant must: submit additional compliance 

reports or other requested information, which must be sworn under penalty of perjury; appear for 

depositions; and produce documents for inspection and copying. The Commission and the State 

of New York are also authorized to obtain discovery, without further leave of court, using any of 

the procedures prescribed by Federal Rules of Civil Procedure 29, 30 (including telephonic 

depositions), 31, 33, 34, 36, 45, and 69. 

B. For matters concerning this Order, the Commission and the State of New York

are authorized to communicate directly with each Defendant. Each Defendant must permit 

representatives of the Commission and the State of New York to interview any employee or 

other Person affiliated with Defendant who has agreed to such an interview. The Person 

interviewed may have counsel present. 

C. The Commission and the State of New York may use all other lawful means,

including posing, through its representatives as consumers, suppliers, or other individuals or 

entities, to Defendants or any individual or entity affiliated with Defendants, without the 

necessity of identification or prior notice. Nothing in this Order limits the Commission’s lawful 

use of compulsory process, pursuant to Sections 9 and 20 of the FTC Act, 15 U.S.C. §§ 49, 57b1.

Case 1:19-cv-02642 Document 2-1 Filed 09/04/19 Page 19 of 31
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X. RETENTION OF JURISDICTION

IT IS FURTHER ORDERED that this Court retains jurisdiction of this matter for purposes of 

construction, modification, and enforcement of this Order. 

SO ORDERED this day of , 2019. 

_______________________________ 

UNITED STATES DISTRICT JUDGE 

Case 1:19-cv-02642 Document 2-1 Filed 09/04/19 Page 20 of 31
SO STIPULATED AND AGREED: 

FOR PLAINTIFFS 

FEDERAL TRADE COMMISSION: 

v/r/�a. 1ll111Ja1 I tu; 

MANEESHA MITHAL I 

Associate Director 

Division of Privacy and Identity Protection 

MARK EICHORN I

Assistant Director 

Divisi 'ri?>f� ivacy and Identity Protection 

KIDS TIN KRAUSE COHEN (D.C. Bar No. 485946) 

Division of Privacy and Identity Protection 

Federal Trade Commission 

600 Pennsylvania Ave., NW 

Washington, DC 20580 

(202) 326-2276 (voice)

(202) 326-3062 (fax)

Email: kcohen@ftc.gov

�RL� 

P 7:JFlt'�GEE (D.C. Bar No. 444750) 

Division of Privacy and Identity Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

(202) 326-3538 (voice)

(202) 326-3062 (fax)

Email: pmagee@ftc.gov

l f di (W.,f t, liXA(._ I jJJ:_ 

TIFF1⁄4NY·GEORGE 61.V. Bar No. 4023248) 

Division of Privacy and Identity Protection 

Federal Trade Commission 

600 Pennsylvania Avenue, NW 

Washington, DC 20580 

(202) 326-3040 (voice)

(202) 326-3062 (fax)

Email: tgeorge@ftc.gov

21 

Case 1:19-cv-02642 Document 2-1 Filed 09/04/19 Page 21 of 31

~ --
Case 1:19-cv-02642 Document 2-1 Filed 09/04/19 Page 22 of 31

FOR THE PEOPLE OF THE STATE OF NEW YORK: 

LETITIA JAMES 

Attorney General of the State ofNew York 

By ~ aL 

CLA ~RWELL (New York Bar No. 2848323) 

Deputy Bureau Chief 

JORDAN S. ADLER (New York Bar No. 4605556) 

Assistant Attorney General 

Bureau of Internet and Technology 

Office of the New York State Attorney General 

28 Liberty St. 

New York, NY 10005 

(212) 416-8433 (voice) 

(212) 416-8369 (fax) 

Email: clark.russell@ag.ny.gov 

Email: jordan.adler@ag.ny.gov 

22 



	


	

Case 1:19-cv-02642 Document 2-1 Filed 09/04/19 Page 23 of 31

FOR DEFENDANTS: 

C L"": 

Libby J. Weingarten, Esq. 

Wilson Sonsini Goodrich & Rosati 

1700 K Street, NW 

5th Floor 

Washington, DC 20006 

(202) 973-8800 

(202) 973-8899 

col en@wsgr.com 

I wein garten@w gr.com 

Date: 

COUNSEL for GOOGLE LLC and YOUTUBE, LLC 

DEFENDANT: GOOGLELLC 

Date: 

Name: Kent Walker 

----

----

Title: Senior Vice President, Global Affairs & Chief Legal Officer 

DEFENDANT: YOUTUBE,LLC 

By: Google LLC, its Managing Member 

lfJM!L Date: ---- Name: Kent Walker 

Title: Senior Vice President, Global Affairs & Chief Legal Officer 

23 
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List of Subjects in 16 CFR Part 312 

Children, Communications, Consumer 

protection, Electronic mail, Email, 

Internet, Online service, Privacy, Record 

retention, Safety, science and 

technology, Trade practices, Web site, 

Youth. 

■ Accordingly, for the reasons stated 

above, the Federal Trade Commission

revises part 312 of Title 16 of the Code

of Federal Regulations to read as

follows:

PART 312—CHILDREN’S ONLINE 

PRIVACY PROTECTION RULE 

Sec. 

312.1 Scope of regulations in this part. 

312.2 Definitions. 

312.3 Regulation of unfair or deceptive acts 

or practices in connection with the 

collection, use, and/or disclosure of 

personal information from and about 

children on the Internet. 

312.4 Notice. 

312.5 Parental consent. 

312.6 Right of parent to review personal 

information provided by a child. 

312.7 Prohibition against conditioning a 

child’s participation on collection of 

personal information. 

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312.8 Confidentiality, security, and 

integrity of personal information 

collected from children. 

312.9 Enforcement. 

312.10 Data retention and deletion 

requirements. 

312.11 Safe harbor programs. 

312.12 Voluntary Commission Approval 

Processes. 

312.13 Severability. 

Authority: 15 U.S.C. 6501–6508. 

§ 312.1 Scope of regulations in this part.

This part implements the Children’s

Online Privacy Protection Act of 1998, 

(15 U.S.C. 6501, et seq.,) which 

prohibits unfair or deceptive acts or 

practices in connection with the 

collection, use, and/or disclosure of 

personal information from and about 

children on the Internet. 

§ 312.2 Definitions.

Child means an individual under the

age of 13. 

Collects or collection means the 

gathering of any personal information 

from a child by any means, including 

but not limited to: 

(1) Requesting, prompting, or

encouraging a child to submit personal 

information online; 

(2) Enabling a child to make personal

information publicly available in 

identifiable form. An operator shall not 

be considered to have collected personal 

information under this paragraph if it 

takes reasonable measures to delete all 

or virtually all personal information 

from a child’s postings before they are 

made public and also to delete such 

information from its records; or 

(3) Passive tracking of a child online.

Commission means the Federal Trade

Commission. 

Delete means to remove personal 

information such that it is not 

maintained in retrievable form and 

cannot be retrieved in the normal course 

of business. 

Disclose or disclosure means, with 

respect to personal information: 

(1) The release of personal

information collected by an operator 

from a child in identifiable form for any 

purpose, except where an operator 

provides such information to a person 

who provides support for the internal 

operations of the Web site or online 

service; and 

(2) Making personal information

collected by an operator from a child 

publicly available in identifiable form 

by any means, including but not limited 

to a public posting through the Internet, 

or through a personal home page or 

screen posted on a Web site or online 

service; a pen pal service; an electronic 

mail service; a message board; or a chat 

room. 

Federal agency means an agency, as 

that term is defined in Section 551(1) of 

title 5, United States Code. 

Internet means collectively the 

myriad of computer and 

telecommunications facilities, including 

equipment and operating software, 

which comprise the interconnected 

world-wide network of networks that 

employ the Transmission Control 

Protocol/Internet Protocol, or any 

predecessor or successor protocols to 

such protocol, to communicate 

information of all kinds by wire, radio, 

or other methods of transmission. 

Obtaining verifiable consent means 

making any reasonable effort (taking 

into consideration available technology) 

to ensure that before personal 

information is collected from a child, a 

parent of the child: 

(1) Receives notice of the operator’s

personal information collection, use, 

and disclosure practices; and 

(2) Authorizes any collection, use,

and/or disclosure of the personal 

information. 

Online contact information means an 

email address or any other substantially 

similar identifier that permits direct 

contact with a person online, including 

but not limited to, an instant messaging 

user identifier, a voice over internet 

protocol (VOIP) identifier, or a video 

chat user identifier. 

Operator means any person who 

operates a Web site 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 Web site or online 

service, or on whose behalf such 

information is collected or maintained, 

or offers products or services for sale 

through that Web site or online service, 

where such Web site or online service 

is operated for commercial purposes 

involving commerce among the several 

States or with 1 or more foreign nations; 

in any territory of the United States or 

in the District of Columbia, or between 

any such territory and another such 

territory or any State or foreign nation; 

or between the District of Columbia and 

any State, territory, or foreign nation. 

This definition does not include any 

nonprofit entity that would otherwise be 

exempt from coverage under Section 5 

of the Federal Trade Commission Act 

(15 U.S.C. 45). Personal information is 

collected or maintained on behalf of an 

operator when: 

(1) It is collected or maintained by an

agent or service provider of the operator; 

or 

(2) The operator benefits by allowing

another person to collect personal 

information directly from users of such 

Web site or online service. 

Parent includes a legal guardian. 

Person means any individual, 

partnership, corporation, trust, estate, 

cooperative, association, or other entity. 

Personal information means 

individually identifiable information 

about an individual collected online, 

including: 

(1) A first and last name;

(2) A home or other physical address

including street name and name of a 

city or town; 

(3) Online contact information as

defined in this section; 

(4) A screen or user name where it

functions in the same manner as online 

contact information, as defined in this 

section; 

(5) A telephone number;

(6) A Social Security number;

(7) A persistent identifier that can be

used to recognize a user over time and 

across different Web sites or online 

services. Such persistent identifier 

includes, but is not limited to, a 

customer number held in a cookie, an 

Internet Protocol (IP) address, a 

processor or device serial number, or 

unique device identifier; 

(8) A photograph, video, or audio file

where such file contains a child’s image 

or voice; 

(9) Geolocation information sufficient

to identify street name and name of a 

city or town; or 

(10) Information concerning the child

or the parents of that child that the 

operator collects online from the child 

and combines with an identifier 

described in this definition. 

Release of personal information 

means the sharing, selling, renting, or 

transfer of personal information to any 

third party. 

Support for the internal operations of 

the Web site or online service means: 

(1) Those activities necessary to:

(i) Maintain or analyze the

functioning of the Web site or online 

service; 

(ii) Perform network communications;

(iii) Authenticate users of, or

personalize the content on, the Web site 

or online service; 

(iv) Serve contextual advertising on

the Web site or online service or cap the 

frequency of advertising; 

(v) Protect the security or integrity of

the user, Web site, or online service; 

(vi) Ensure legal or regulatory

compliance; or 

(vii) Fulfill a request of a child as

permitted by § 312.5(c)(3) and (4); 

(2) So long as The information

collected for the activities listed in 

paragraphs (1)(i)–(vii) of this definition 

is not used or disclosed to contact a 

specific individual, including through 

behavioral advertising, to amass a 

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profile on a specific individual, or for 

any other purpose. 

Third party means any person who is 

not: 

(1) An operator with respect to the

collection or maintenance of personal 

information on the Web site or online 

service; or 

(2) A person who provides support for

the internal operations of the Web site 

or online service and who does not use 

or disclose information protected under 

this part for any other purpose. 

Web site or online service directed to 

children means a commercial Web site 

or online service, or portion thereof, that 

is targeted to children. 

(1) In determining whether a Web site

or online service, or a portion thereof, 

is directed to children, the Commission 

will consider its subject matter, visual 

content, use of animated characters or 

child-oriented activities and incentives, 

music or other audio content, age of 

models, presence of child celebrities or 

celebrities who appeal to children, 

language or other characteristics of the 

Web site or online service, as well as 

whether advertising promoting or 

appearing on the Web site or online 

service is directed to children. The 

Commission will also consider 

competent and reliable empirical 

evidence regarding audience 

composition, and evidence regarding 

the intended audience. 

(2) A Web site or online service shall

be deemed directed to children when it 

has actual knowledge that it is 

collecting personal information directly 

from users of another Web site or online 

service directed to children. 

(3) A Web site or online service that

is directed to children under the criteria 

set forth in paragraph (1) of this 

definition, but that does not target 

children as its primary audience, shall 

not be deemed directed to children if it: 

(i) Does not collect personal

information from any visitor prior to 

collecting age information; and 

(ii) Prevents the collection, use, or

disclosure of personal information from 

visitors who identify themselves as 

under age 13 without first complying 

with the notice and parental consent 

provisions of this part. 

(4) A Web site or online service shall

not be deemed directed to children 

solely because it refers or links to a 

commercial Web site or online service 

directed to children by using 

information location tools, including a 

directory, index, reference, pointer, or 

hypertext link. 

§ 312.3 Regulation of unfair or deceptive

acts or practices in connection with the

collection, use, and/or disclosure of

personal information from and about

children on the Internet.

General requirements. It shall be 

unlawful for any operator of a Web site 

or online service directed to children, or 

any operator that has actual knowledge 

that it is collecting or maintaining 

personal information from a child, to 

collect personal information from a 

child in a manner that violates the 

regulations prescribed under this part. 

Generally, under this part, an operator 

must: 

(a) Provide notice on the Web site or

online service of what information it 

collects from children, how it uses such 

information, and its disclosure practices 

for such information (§ 312.4(b)); 

(b) Obtain verifiable parental consent

prior to any collection, use, and/or 

disclosure of personal information from 

children (§ 312.5); 

(c) Provide a reasonable means for a

parent to review the personal 

information collected from a child and 

to refuse to permit its further use or 

maintenance (§ 312.6); 

(d) Not condition a child’s

participation in a game, the offering of 

a prize, or another activity on the child 

disclosing more personal information 

than is reasonably necessary to 

participate in such activity (§ 312.7); 

and 

(e) Establish and maintain reasonable

procedures to protect the 

confidentiality, security, and integrity of 

personal information collected from 

children (§ 312.8). 

§ 312.4 Notice.

(a) General principles of notice. It

shall be the obligation of the operator to 

provide notice and obtain verifiable 

parental consent prior to collecting, 

using, or disclosing personal 

information from children. Such notice 

must be clearly and understandably 

written, complete, and must contain no 

unrelated, confusing, or contradictory 

materials. 

(b) Direct notice to the parent. An

operator must make reasonable efforts, 

taking into account available 

technology, to ensure that a parent of a 

child receives direct notice of the 

operator’s practices with regard to the 

collection, use, or disclosure of personal 

information from children, including 

notice of any material change in the 

collection, use, or disclosure practices 

to which the parent has previously 

consented. 

(c) Content of the direct notice to the

parent—(1) Content of the direct notice 

to the parent under § 312.5(c)(1) (Notice 

to Obtain Parent’s Affirmative Consent 

to the Collection, Use, or Disclosure of 

a Child’s Personal Information). This 

direct notice shall set forth: 

(i) That the operator has collected the

parent’s online contact information from 

the child, and, if such is the case, the 

name of the child or the parent, in order 

to obtain the parent’s consent; 

(ii) That the parent’s consent is

required for the collection, use, or 

disclosure of such information, and that 

the operator will not collect, use, or 

disclose any personal information from 

the child if the parent does not provide 

such consent; 

(iii) The additional items of personal

information the operator intends to 

collect from the child, or the potential 

opportunities for the disclosure of 

personal information, should the parent 

provide consent; 

(iv) A hyperlink to the operator’s

online notice of its information 

practices required under paragraph (d) 

of this section; 

(v) The means by which the parent

can provide verifiable consent to the 

collection, use, and disclosure of the 

information; and 

(vi) That if the parent does not

provide consent within a reasonable 

time from the date the direct notice was 

sent, the operator will delete the 

parent’s online contact information from 

its records. 

(2) Content of the direct notice to the

parent under § 312.5(c)(2) (Voluntary 

Notice to Parent of a Child’s Online 

Activities Not Involving the Collection, 

Use or Disclosure of Personal 

Information). Where an operator 

chooses to notify a parent of a child’s 

participation in a Web site or online 

service, and where such site or service 

does not collect any personal 

information other than the parent’s 

online contact information, the direct 

notice shall set forth: 

(i) That the operator has collected the

parent’s online contact information from 

the child in order to provide notice to, 

and subsequently update the parent 

about, a child’s participation in a Web 

site or online service that does not 

otherwise collect, use, or disclose 

children’s personal information; 

(ii) That the parent’s online contact

information will not be used or 

disclosed for any other purpose; 

(iii) That the parent may refuse to

permit the child’s participation in the 

Web site or online service and may 

require the deletion of the parent’s 

online contact information, and how the 

parent can do so; and 

(iv) A hyperlink to the operator’s

online notice of its information 

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practices required under paragraph (d) 

of this section. 

(3) Content of the direct notice to the

parent under § 312.5(c)(4) (Notice to a 

Parent of Operator’s Intent to 

Communicate with the Child Multiple 

Times). This direct notice shall set forth: 

(i) That the operator has collected the

child’s online contact information from 

the child in order to provide multiple 

online communications to the child; 

(ii) That the operator has collected the

parent’s online contact information from 

the child in order to notify the parent 

that the child has registered to receive 

multiple online communications from 

the operator; 

(iii) That the online contact

information collected from the child 

will not be used for any other purpose, 

disclosed, or combined with any other 

information collected from the child; 

(iv) That the parent may refuse to

permit further contact with the child 

and require the deletion of the parent’s 

and child’s online contact information, 

and how the parent can do so; 

(v) That if the parent fails to respond

to this direct notice, the operator may 

use the online contact information 

collected from the child for the purpose 

stated in the direct notice; and 

(vi) A hyperlink to the operator’s

online notice of its information 

practices required under paragraph (d) 

of this section. 

(4) Content of the direct notice to the

parent required under § 312.5(c)(5) 

(Notice to a Parent In Order to Protect 

a Child’s Safety). This direct notice shall 

set forth: 

(i) That the operator has collected the

name and the online contact 

information of the child and the parent 

in order to protect the safety of a child; 

(ii) That the information will not be

used or disclosed for any purpose 

unrelated to the child’s safety; 

(iii) That the parent may refuse to

permit the use, and require the deletion, 

of the information collected, and how 

the parent can do so; 

(iv) That if the parent fails to respond

to this direct notice, the operator may 

use the information for the purpose 

stated in the direct notice; and 

(v) A hyperlink to the operator’s

online notice of its information 

practices required under paragraph (d) 

of this section. 

(d) Notice on the Web site or online

service. In addition to the direct notice 

to the parent, an operator must post a 

prominent and clearly labeled link to an 

online notice of its information 

practices with regard to children on the 

home or landing page or screen of its 

Web site or online service, and, at each 

area of the Web site or online service 

where personal information is collected 

from children. The link must be in close 

proximity to the requests for 

information in each such area. An 

operator of a general audience Web site 

or online service that has a separate 

children’s area must post a link to a 

notice of its information practices with 

regard to children on the home or 

landing page or screen of the children’s 

area. To be complete, the online notice 

of the Web site or online service’s 

information practices must state the 

following: 

(1) The name, address, telephone

number, and email address of all 

operators collecting or maintaining 

personal information from children 

through the Web site or online service. 

Provided that: The operators of a Web 

site or online service may list the name, 

address, phone number, and email 

address of one operator who will 

respond to all inquiries from parents 

concerning the operators’ privacy 

policies and use of children’s 

information, as long as the names of all 

the operators collecting or maintaining 

personal information from children 

through the Web site or online service 

are also listed in the notice; 

(2) A description of what information

the operator collects from children, 

including whether the Web site or 

online service enables a child to make 

personal information publicly available; 

how the operator uses such information; 

and, the operator’s disclosure practices 

for such information; and 

(3) That the parent can review or have

deleted the child’s personal 

information, and refuse to permit 

further collection or use of the child’s 

information, and state the procedures 

for doing so. 

§ 312.5 Parental consent.

(a) General requirements. (1) An

operator is required to obtain verifiable 

parental consent before any collection, 

use, or disclosure of personal 

information from children, including 

consent to any material change in the 

collection, use, or disclosure practices 

to which the parent has previously 

consented. 

(2) An operator must give the parent

the option to consent to the collection 

and use of the child’s personal 

information without consenting to 

disclosure of his or her personal 

information to third parties. 

(b) Methods for verifiable parental

consent. (1) An operator must make 

reasonable efforts to obtain verifiable 

parental consent, taking into 

consideration available technology. Any 

method to obtain verifiable parental 

consent must be reasonably calculated, 

in light of available technology, to 

ensure that the person providing 

consent is the child’s parent. (2) 

Existing methods to obtain verifiable 

parental consent that satisfy the 

requirements of this paragraph include: 

(i) Providing a consent form to be

signed by the parent and returned to the 

operator by postal mail, facsimile, or 

electronic scan; 

(ii) Requiring a parent, in connection

with a monetary transaction, to use a 

credit card, debit card, or other online 

payment system that provides 

notification of each discrete transaction 

to the primary account holder; 

(iii) Having a parent call a toll-free

telephone number staffed by trained 

personnel; 

(iv) Having a parent connect to

trained personnel via video-conference; 

(v) Verifying a parent’s identity by

checking a form of government-issued 

identification against databases of such 

information, where the parent’s 

identification is deleted by the operator 

from its records promptly after such 

verification is complete; or 

(vi) Provided that, an operator that

does not ‘‘disclose’’ (as defined by 

§ 312.2) children’s personal information,

may use an email coupled with

additional steps to provide assurances

that the person providing the consent is

the parent. Such additional steps

include: Sending a confirmatory email

to the parent following receipt of

consent, or obtaining a postal address or

telephone number from the parent and

confirming the parent’s consent by letter

or telephone call. An operator that uses

this method must provide notice that

the parent can revoke any consent given

in response to the earlier email.

(3) Safe harbor approval of parental

consent methods. A safe harbor program 

approved by the Commission under 

§ 312.11 may approve its member

operators’ use of a parental consent 

method not currently enumerated in 

paragraph (b)(2) of this section where 

the safe harbor program determines that 

such parental consent method meets the 

requirements of paragraph (b)(1) of this 

section. 

(c) Exceptions to prior parental

consent. Verifiable parental consent is 

required prior to any collection, use, or 

disclosure of personal information from 

a child except as set forth in this 

paragraph: 

(1) Where the sole purpose of

collecting the name or online contact 

information of the parent or child is to 

provide notice and obtain parental 

consent under § 312.4(c)(1). If the 

operator has not obtained parental 

consent after a reasonable time from the 

date of the information collection, the 

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operator must delete such information 

from its records; 

(2) Where the purpose of collecting a

parent’s online contact information is to 

provide voluntary notice to, and 

subsequently update the parent about, 

the child’s participation in a Web site or 

online service that does not otherwise 

collect, use, or disclose children’s 

personal information. In such cases, the 

parent’s online contact information may 

not be used or disclosed for any other 

purpose. In such cases, the operator 

must make reasonable efforts, taking 

into consideration available technology, 

to ensure that the parent receives notice 

as described in § 312.4(c)(2); 

(3) Where the sole purpose of

collecting online contact information 

from a child is to respond directly on a 

one-time basis to a specific request from 

the child, and where such information 

is not used to re-contact the child or for 

any other purpose, is not disclosed, and 

is deleted by the operator from its 

records promptly after responding to the 

child’s request; 

(4) Where the purpose of collecting a

child’s and a parent’s online contact 

information is to respond directly more 

than once to the child’s specific request, 

and where such information is not used 

for any other purpose, disclosed, or 

combined with any other information 

collected from the child. In such cases, 

the operator must make reasonable 

efforts, taking into consideration 

available technology, to ensure that the 

parent receives notice as described in 

§ 312.4(c)(3). An operator will not be

deemed to have made reasonable efforts

to ensure that a parent receives notice

where the notice to the parent was

unable to be delivered;

(5) Where the purpose of collecting a

child’s and a parent’s name and online 

contact information, is to protect the 

safety of a child, and where such 

information is not used or disclosed for 

any purpose unrelated to the child’s 

safety. In such cases, the operator must 

make reasonable efforts, taking into 

consideration available technology, to 

provide a parent with notice as 

described in § 312.4(c)(4); 

(6) Where the purpose of collecting a

child’s name and online contact 

information is to: 

(i) Protect the security or integrity of

its Web site or online service; 

(ii) Take precautions against liability;

(iii) Respond to judicial process; or

(iv) To the extent permitted under

other provisions of law, to provide 

information to law enforcement 

agencies or for an investigation on a 

matter related to public safety; and 

where such information is not be used 

for any other purpose; 

(7) Where an operator collects a

persistent identifier and no other 

personal information and such identifier 

is used for the sole purpose of providing 

support for the internal operations of 

the Web site or online service. In such 

case, there also shall be no obligation to 

provide notice under § 312.4; or 

(8) Where an operator covered under

paragraph (2) of the definition of Web 

site or online service directed to 

children in § 312.2 collects a persistent 

identifier and no other personal 

information from a user who 

affirmatively interacts with the operator 

and whose previous registration with 

that operator indicates that such user is 

not a child. In such case, there also shall 

be no obligation to provide notice under 

§ 312.4.

§ 312.6 Right of parent to review personal

information provided by a child.

(a) Upon request of a parent whose

child has provided personal information 

to a Web site or online service, the 

operator of that Web site or online 

service is required to provide to that 

parent the following: 

(1) A description of the specific types

or categories of personal information 

collected from children by the operator, 

such as name, address, telephone 

number, email address, hobbies, and 

extracurricular activities; 

(2) The opportunity at any time to

refuse to permit the operator’s further 

use or future online collection of 

personal information from that child, 

and to direct the operator to delete the 

child’s personal information; and 

(3) Notwithstanding any other

provision of law, a means of reviewing 

any personal information collected from 

the child. The means employed by the 

operator to carry out this provision 

must: 

(i) Ensure that the requestor is a

parent of that child, taking into account 

available technology; and 

(ii) Not be unduly burdensome to the

parent. 

(b) Neither an operator nor the

operator’s agent shall be held liable 

under any Federal or State law for any 

disclosure made in good faith and 

following reasonable procedures in 

responding to a request for disclosure of 

personal information under this section. 

(c) Subject to the limitations set forth

in § 312.7, an operator may terminate 

any service provided to a child whose 

parent has refused, under paragraph 

(a)(2) of this section, to permit the 

operator’s further use or collection of 

personal information from his or her 

child or has directed the operator to 

delete the child’s personal information. 

§ 312.7 Prohibition against conditioning a

child’s participation on collection of

personal information.

An operator is prohibited from 

conditioning a child’s participation in a 

game, the offering of a prize, or another 

activity on the child’s disclosing more 

personal information than is reasonably 

necessary to participate in such activity. 

§ 312.8 Confidentiality, security, and

integrity of personal information collected

from children.

The operator must establish and 

maintain reasonable procedures to 

protect the confidentiality, security, and 

integrity of personal information 

collected from children. The operator 

must also take reasonable steps to 

release children’s personal information 

only to service providers and third 

parties who are capable of maintaining 

the confidentiality, security and 

integrity of such information, and who 

provide assurances that they will 

maintain the information in such a 

manner. 

§ 312.9 Enforcement.

Subject to sections 6503 and 6505 of

the Children’s Online Privacy Protection 

Act of 1998, a violation of a regulation 

prescribed under section 6502 (a) of this 

Act shall be treated as a violation of a 

rule defining an unfair or deceptive act 

or practice prescribed under section 

18(a)(1)(B) of the Federal Trade 

Commission Act (15 U.S.C. 

57a(a)(1)(B)). 

§ 312.10 Data retention and deletion

requirements.

An operator of a Web site or online 

service shall retain personal information 

collected online from a child for only as 

long as is reasonably necessary to fulfill 

the purpose for which the information 

was collected. The operator must delete 

such information using reasonable 

measures to protect against 

unauthorized access to, or use of, the 

information in connection with its 

deletion. 

§ 312.11 Safe harbor programs.

(a) In general. Industry groups or

other persons may apply to the 

Commission for approval of selfregulatory program guidelines (‘‘safe 

harbor programs’’). The application 

shall be filed with the Commission’s 

Office of the Secretary. The Commission 

will publish in the Federal Register a 

document seeking public comment on 

the application. The Commission shall 

issue a written determination within 

180 days of the filing of the application. 

(b) Criteria for approval of selfregulatory program guidelines. Proposed 

safe harbor programs must demonstrate 

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that they meet the following 

performance standards: 

(1) Program requirements that ensure

operators subject to the self-regulatory 

program guidelines (‘‘subject 

operators’’) provide substantially the 

same or greater protections for children 

as those contained in §§ 312.2 through 

312.8, and 312.10. 

(2) An effective, mandatory

mechanism for the independent 

assessment of subject operators’ 

compliance with the self-regulatory 

program guidelines. At a minimum, this 

mechanism must include a 

comprehensive review by the safe 

harbor program, to be conducted not 

less than annually, of each subject 

operator’s information policies, 

practices, and representations. The 

assessment mechanism required under 

this paragraph can be provided by an 

independent enforcement program, such 

as a seal program. 

(3) Disciplinary actions for subject

operators’ non-compliance with selfregulatory program guidelines. This 

performance standard may be satisfied 

by: 

(i) Mandatory, public reporting of any

action taken against subject operators by 

the industry group issuing the selfregulatory guidelines; 

(ii) Consumer redress;

(iii) Voluntary payments to the United

States Treasury in connection with an 

industry-directed program for violators 

of the self-regulatory guidelines; 

(iv) Referral to the Commission of

operators who engage in a pattern or 

practice of violating the self-regulatory 

guidelines; or 

(v) Any other equally effective action.

(c) Request for Commission approval

of self-regulatory program guidelines. A 

proposed safe harbor program’s request 

for approval shall be accompanied by 

the following: 

(1) A detailed explanation of the

applicant’s business model, and the 

technological capabilities and 

mechanisms that will be used for initial 

and continuing assessment of subject 

operators’ fitness for membership in the 

safe harbor program; 

(2) A copy of the full text of the

guidelines for which approval is sought 

and any accompanying commentary; 

(3) A comparison of each provision of

§§ 312.2 through 312.8, and 312.10 with

the corresponding provisions of the

guidelines; and

(4) A statement explaining:

(i) How the self-regulatory program

guidelines, including the applicable 

assessment mechanisms, meet the 

requirements of this part; and 

(ii) How the assessment mechanisms

and compliance consequences required 

under paragraphs (b)(2) and (b)(3) 

provide effective enforcement of the 

requirements of this part. 

(d) Reporting and recordkeeping

requirements. Approved safe harbor 

programs shall: 

(1) By July 1, 2014, and annually

thereafter, submit a report to the 

Commission containing, at a minimum, 

an aggregated summary of the results of 

the independent assessments conducted 

under paragraph (b)(2) of this section, a 

description of any disciplinary action 

taken against any subject operator under 

paragraph (b)(3) of this section, and a 

description of any approvals of member 

operators’ use of a parental consent 

mechanism, pursuant to § 312.5(b)(4); 

(2) Promptly respond to Commission

requests for additional information; and 

(3) Maintain for a period not less than

three years, and upon request make 

available to the Commission for 

inspection and copying: 

(i) Consumer complaints alleging

violations of the guidelines by subject 

operators; 

(ii) Records of disciplinary actions

taken against subject operators; and 

(iii) Results of the independent

assessments of subject operators’ 

compliance required under paragraph 

(b)(2) of this section. 

(e) Post-approval modifications to

self-regulatory program guidelines. 

Approved safe harbor programs must 

submit proposed changes to their 

guidelines for review and approval by 

the Commission in the manner required 

for initial approval of guidelines under 

paragraph (c)(2) of this section. The 

statement required under paragraph 

(c)(4) of this section must describe how 

the proposed changes affect existing 

provisions of the guidelines. 

(f) Revocation of approval of selfregulatory program guidelines. The 

Commission reserves the right to revoke 

any approval granted under this section 

if at any time it determines that the 

approved self-regulatory program 

guidelines or their implementation do 

not meet the requirements of this part. 

Safe harbor programs that were 

approved prior to the publication of the 

Final Rule amendments must, by March 

1, 2013, submit proposed modifications 

to their guidelines that would bring 

them into compliance with such 

amendments, or their approval shall be 

revoked. 

(g) Operators’ participation in a safe

harbor program. An operator will be 

deemed to be in compliance with the 

requirements of §§ 312.2 through 312.8, 

and 312.10 if that operator complies 

with Commission-approved safe harbor 

program guidelines. In considering 

whether to initiate an investigation or 

bring an enforcement action against a 

subject operator for violations of this 

part, the Commission will take into 

account the history of the subject 

operator’s participation in the safe 

harbor program, whether the subject 

operator has taken action to remedy 

such non-compliance, and whether the 

operator’s non-compliance resulted in 

any one of the disciplinary actions set 

forth in paragraph (b)(3). 

§ 312.12 Voluntary Commission Approval

Processes.

(a) Parental consent methods. An

interested party may file a written 

request for Commission approval of 

parental consent methods not currently 

enumerated in § 312.5(b). To be 

considered for approval, a party must 

provide a detailed description of the 

proposed parental consent methods, 

together with an analysis of how the 

methods meet § 312.5(b)(1). The request 

shall be filed with the Commission’s 

Office of the Secretary. The Commission 

will publish in the Federal Register a 

document seeking public comment on 

the request. The Commission shall issue 

a written determination within 120 days 

of the filing of the request; and 

(b) Support for internal operations of

the Web site or online service. An 

interested party may file a written 

request for Commission approval of 

additional activities to be included 

within the definition of support for 

internal operations. To be considered 

for approval, a party must provide a 

detailed justification why such activities 

should be deemed support for internal 

operations, and an analysis of their 

potential effects on children’s online 

privacy. The request shall be filed with 

the Commission’s Office of the 

Secretary. The Commission will publish 

in the Federal Register a document 

seeking public comment on the request. 

The Commission shall issue a written 

determination within 120 days of the 

filing of the request. 

§ 312.13 Severability.

The provisions of this part are

separate and severable from one 

another. If any provision is stayed or 

determined to be invalid, it is the 

Commission’s intention that the 

remaining provisions shall continue in 

effect. 

Appendix A

Case 1:19-cv-02642 Document 2-1 Filed 09/04/19 Page 30 of 31
4014 Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Rules and Regulations 

401 15 U.S.C. 6501–6506. 

402COPPA, 15 U.S.C. 6501(2), defines the term 

‘‘operator’’ as ‘‘any person who operates a Web site 

located on the Internet or an online service and who 

collects or maintains personal information from or 

about users of or visitors to such Web site or online 

service, or on whose behalf such information is 

collected and maintained * * *’’ As stated in the 

Statement of Basis and Purpose for the original 

COPPA Rule, ‘‘The definition of ‘operator’ is of 

central importance because it determines who is 

covered by the Act and the Rule.’’ Children’s 

Online Privacy Protection Rule 64 FR 59888, 59891 

(Nov. 3, 1999) (final rule). 

403 15 U.S.C. 6502(a)(1). 

404 If the third-party plugs-ins are child-directed 

or have actual knowledge that they are collecting 

children’s personal information they are already 

expressly covered by the COPPA statute. Thus, as 

the SBP notes, a behavioral advertising network that 

targets children under the age of 13 is already 

deemed an operator. The amendment must 

therefore be aimed at reaching third-party plug-ins 

that are either not child-directed or do not have 

actual knowledge that they are collecting children’s 

personal information, which raises a question about 

what harm this amendment will address. For 

example, it appears that this same type of harm 

could occur through general audience Web sites 

and online services collecting and using visitors’ 

personal information without knowing whether 

some of the data is children’s personal information, 

which is a practice that COPPA and the 

amendments do not prohibit. 

405 16 CFR 312.2 (Definitions). 

406This expanded definition of operator reverses 

the Commission’s previous conclusion that the 

appropriate test for determining an entity’s status as 

an operator is to ‘‘look at the entity’s relationship 

to the data collected,’’ using factors such as ‘‘who 

owns and/or controls the information, who pays for 

its collection and maintenance, the pre-existing 

contractual relationships regarding collection and 

maintenance of the information, and the role of the 

Web site or online service in collecting and/or 

maintaining the information (i.e., whether the site 

participates in collection or is merely a conduit 

through which the information flows to another 

entity.)’’ Children’s Online Privacy Protection Rule 

64 FR 59888, 59893, 59891 (Nov. 3, 1999) (final 

rule). 

407Chevron v. Natural Resources Defense 

Council, Inc., 467 U.S. 837, 842–43 (1984) (‘‘When 

a court reviews an agency’s construction of the 

statute which it administers, it is confronted with 

two questions. First, always, is the question 

whether Congress has directly spoken to the precise 

question at issue. If the intent of Congress is clear, 

that is the end of the matter; for the court, as well 

as the agency, must give effect to the 

unambiguously expressed intent of Congress.’’). 

By direction of the Commission, 

Commissioner Rosch abstaining, and 

Commissioner Ohlhausen dissenting. 

Donald S. Clark, 

Secretary. 

Dissenting Statement of Commissioner 

Maureen K. Ohlhausen 

I voted against adopting the amendments 

to the Children’s Online Privacy Protection 

Act (COPPA) Rule because I believe a core 

provision of the amendments exceeds the 

scope of the authority granted us by Congress 

in COPPA, the statute that underlies and 

authorizes the Rule.401 Before I explain my 

concerns, I wish to commend the 

Commission staff for their careful 

consideration of the multitude of issues 

raised by the numerous comments in this 

proceeding. Much of the language of the 

amendments is designed to preserve 

flexibility for the industry while striving to 

protect children’s privacy, a goal I support 

strongly. The final proposed amendments 

largely strike the right balance between 

protecting children’s privacy online and 

avoiding undue burdens on providers of 

children’s online content and services. The 

staff’s great expertise in the area of children’s 

privacy and deep understanding of the values 

at stake in this matter have been invaluable 

in my consideration of these important 

issues. 

In COPPA Congress defined who is an 

operator and thereby set the outer boundary 

for the statute’s and the COPPA Rule’s 

reach.402 It is undisputed that COPPA places 

obligations on operators of Web sites or 

online services directed to children or 

operators with actual knowledge that they are 

collecting personal information from 

children. The statute provides, ‘‘It is 

unlawful for an operator of a Web site or 

online service directed to children, or any 

operator that has actual knowledge that it is 

collecting personal information from a child, 

to collect personal information from a child 

in a manner that violates the regulations 

prescribed [by the FTC].’’ 403

The Statement of Basis and Purpose for the 

amendments (SBP) discusses concerns that 

the current COPPA Rule may not cover childdirected Web sites or services that do not 

themselves collect children’s personal 

information but may incorporate third-party 

plug-ins that collect such information 404 for 

the plug-ins’ use but do not collect or 

maintain the information for, or share it with, 

the child-directed site or service. To address 

these concerns, the amendments add a new 

proviso to the definition of operator in the 

COPPA Rule: ‘‘Personal information is 

collected or maintained on behalf of an 

operator when: (a) it is collected or 

maintained by an agent or service provider of 

the operator; or (b) the operator benefits by 

allowing another person to collect personal 

information directly from users of such Web 

site or online service.’’ 405

The proposed amendments construe the 

term ‘‘on whose behalf such information is 

collected and maintained’’ to reach childdirected Web sites or services that merely 

derive from a third-party plug-in some kind 

of benefit, which may well be unrelated to 

the collection and use of children’s 

information (e.g., content, functionality, or 

advertising revenue). I find that this 

proviso—which would extend COPPA 

obligations to entities that do not collect 

personal information from children or have 

access to or control of such information 

collected by a third-party does not comport 

with the plain meaning of the statutory 

definition of an operator in COPPA, which 

covers only entities ‘‘on whose behalf such 

information is collected and maintained.’’ 406

In other words, I do not believe that the fact 

that a child-directed site or online service 

receives any kind of benefit from using a 

plug-in is equivalent to the collection of 

personal information by the third-party plugin on behalf of the child-directed site or 

online service. 

As the Supreme Court has directed, an 

agency ‘‘must give effect to the 

unambiguously expressed intent of 

Congress.’’ 407 Thus, regardless of the policy 

justifications offered, I cannot support 

expanding the definition of the term 

‘‘operator’’ beyond the statutory parameters 

set by Congress in COPPA. 

I therefore respectfully dissent. 

[FR Doc. 2012–31341 Filed 1–16–13; 8:45 am] 

BILLING CODE 6750–01–P 

Appendix A

Case 1:19-cv-02642 Document 2-1 Filed 09/04/19 Page 31 of 31