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BRIAN M. BOYNTON, Acting Assistant Attorney General, Civil Division 

ARUN G. RAO, Deputy Assistant Attorney General 

GUSTAV W. EYLER, Director, Consumer Protection Branch 

LISA K. HSIAO, Assistant Director 

ZACHARY A. DIETERT 

DAVID G. CROCKETT 

 Trial Attorneys 

 Consumer Protection Branch 

 Civil Division, U.S. Department of Justice 

 450 5th Street, NW, Suite 6400-South 

 Washington, D.C. 20530 

 Telephone: (202) 616-9027 (Dietert) 

(202) 305-7196 (Crockett)

 Facsimile: (202) 514-8742 

 Zachary.A.Dietert@usdoj.gov 

 David.G.Crockett@usdoj.gov 

Attorneys for Plaintiff 

UNITED STATES OF AMERICA 

IN THE UNITED STATES DISTRICT COURT 

FOR THE CENTRAL DISTRICT OF CALIFORNIA 

WESTERN DIVISION 

UNITED STATES OF AMERICA, 

Plaintiff, 

v. 

OPENX TECHNOLOGIES, INC., 

a Delaware Corporation, 

Defendant. 

Case No. 2:21-cv-09693

STIPULATED ORDER FOR 

PERMANENT INJUNCTION AND 

CIVIL PENALTY JUDGMENT 

Plaintiff, the United States of America, acting upon notification and 

authorization to the Attorney General by the Federal Trade Commission (“FTC” or 

“Commission”), filed its Complaint for Civil Penalties, Permanent Injunction, and 

Other Equitable Relief (“Complaint”), in this matter, pursuant to Sections 5(a)(1), 

5(m)(1)(A), 13(b), 16(a)(1), and 19, of the Federal Trade Commission Act (“FTC 

Act”), 15 U.S.C. §§ 45(a)(1), 45(m)(1)(A), 53(b), 56(a)(1), and 57(b), and Sections 

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1303(c) and 1306(d) of the Children’s Online Privacy Protection Act (“COPPA”), 

15 U.S.C. §§ 6502(c) and 6505(d), and the Children’s Online Privacy Protection 

Rule (“COPPA Rule”), 16 C.F.R. Part 312. Defendant has waived service of the 

summons and the Complaint. The parties have been represented by the attorneys 

whose names appear hereafter. Plaintiff and Defendant 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: 

FINDINGS 

1. This Court has jurisdiction over this matter. 

2. The Complaint charges that Defendant violated the FTC Act by 

misrepresenting its Collection, use, and Disclosure of Covered 

Information and by misrepresenting its COPPA obligations and practices. 

The Complaint also charges that Defendant violated COPPA by failing to 

provide notice to Parents of their information practices and failing to 

Obtain Verifiable Parental Consent prior to Collecting, using, or 

Disclosing Personal Information from Children. 

3. Defendant neither admits nor denies any of the allegations in the 

Complaint, except as specifically stated in this Order. Only for purposes 

of this action, Defendant admits the facts necessary to establish 

jurisdiction. 

4. Defendant waives any claim that it 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 agrees to bear its own costs and 

attorney fees. 

5. Defendant and Plaintiff waive all rights to appeal or otherwise challenge 

or contest the validity of this Order. 

6. This Order relates to activities in or affecting interstate commerce, 

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including such acts or practices involving foreign commerce that cause or 

are likely to cause reasonably foreseeable injury within the United States, 

or involve material conduct occurring within the United States. 

DEFINITIONS 

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

A. “Ad Tech Service” means any of Defendant’s products or services that 

enable or facilitate the marketing, sale, or purchase of digital or mobile 

advertising. 

B. “Ad Request Data” means data that Defendant collects or receives from 

any entity to prompt the service of an advertisement, to the extent that the 

data includes information capable of identifying a specific individual or 

individual’s device. 

C. “Affirmative Express Consent” means that, prior to the collection of 

any Location Information, the consumer has made an affirmative action 

to assent to the collection of that data. Provided, however, that an 

affirmative action does not include obtaining a consumer’s approval for a 

preselected default option. 

D. “Child” means an individual under the age of 13. 

E. “Collects” or “Collection” means, with respect to Personal Information, 

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; or 

3. Passive tracking of a Child online. 

F. “Covered Information” means information linkable to a specific 

consumer, computer, or device, including the following when linkable to 

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a specific consumer, computer or device: (a) Personal Information; 

(b) Location Information; (c) behavioral data (e.g., videos viewed, ads 

viewed, pages clicked, etc.); and (d) profile data (e.g., age, gender, 

ethnicity, income net worth, political affiliation, etc.). 

G. “Defendant” means OpenX Technologies, Inc. (“OpenX”), a 

corporation, and its successors and assigns. 

H. “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. 

I. “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. 

J. “Location Information” means the following information, when 

linkable to a specific consumer, computer, or device: (a) information 

about a consumer’s location that is collected through an application 

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programming interface; or (b) information about a consumer’s location 

that is inferred from basic service set identifiers (BSSIDs). 

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. 

L. “Online Contact Information” means an e-mail 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 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 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. 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 

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Operator; or 

2. The Operator benefits by allowing another Person to Collect 

Personal Information directly from users of such Web site or 

online service. 

N. “Parent” includes a legal guardian. 

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

cooperative, association, or other entity. 

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 Web sites or online services. Such 

persistent identifier includes but is not limited to a customer 

number held in a cookie, an 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 

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identifier described in this definition. 

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

or transfer of Personal Information to any Third Party. 

R. “Service Provider” means an entity that performs services for and at the 

direction of Defendant. Provided, however, that an entity does not 

become a Service Provider solely because of that entity’s marketing, 

purchase, or sale of digital advertisements in an Ad Tech Service 

operated by Defendant. 

S. “Support for the Internal Operations of the Web site or Online 

Service” means 

1. Those activities necessary to: 

a. Maintain or analyze the functioning of the Web site or 

online service; 

b. Perform network communications; 

c. Authenticate users of, or personalize the content on, the Web 

site or online service; 

d. Serve contextual advertising on the Web site or online 

service or cap the frequency of advertising; 

e. Protect the security or integrity of the user, Web site, or 

online service; 

f. Ensure legal or regulatory compliance; or 

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

(4) of the COPPA Rule; 

2. So long as the information Collected for the activities listed in 

(1)(a) – (g) of this definition 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. 

T. “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 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. 

U. “Web site or Online Service Directed to Children” means a 

commercial Web site or online service, or portion thereof that is targeted 

to Children. 

ORDER 

I. INJUNCTION CONCERNING COLLECTION OF PERSONAL 

INFORMATION FROM CHILDREN 

IT IS ORDERED that Defendant and Defendant’s officers, agents, 

employees, and attorneys who receive actual notice of this Order, whether acting 

directly or indirectly, in connection with Defendant operating a Web site or Online 

Service Directed to Children or operating a Web site or online service that has 

actual knowledge that it is Collecting or maintaining Personal Information from a 

Child, are hereby permanently restrained and enjoined from (A) Collecting, using, 

and Disclosing Personal Information from Child-directed properties without 

Verifiable Parental Consent 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, or (B) violating the Children’s Online Privacy 

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

II. INJUNCTION PROHIBITING MISREPRESENTATIONS 

IT IS FURTHER ORDERED that Defendant and Defendant's officers, 

agents, employees, and attorneys who receive actual notice of this Order, whether 

acting directly or indirectly, in connection with any Defendant-operated Web site 

or online service, must not materially misrepresent in any manner, expressly or by 

implication: 

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A. Consumers’ ability to opt out of Defendant’s Collection, maintenance, 

use, Disclosure of, or provision of access to Covered Information; 

B. The extent to which Defendant Collects, maintains, uses, Discloses, or 

provides access to Covered Information; 

C. The extent to which Defendant complies with the COPPA Rule and the 

measures Defendant takes to comply with the COPPA Rule; or 

D. The extent to which Defendant otherwise protects the privacy, security, 

availability, confidentiality, or integrity of Covered Information. 

III. INJUNCTION REQUIRING CONSENT FOR COLLECTION OF 

LOCATION INFORMATION 

IT IS FURTHER ORDERED that Defendant and Defendant’s officers, 

agents, employees, and attorneys who receive actual notice of this Order, whether 

acting directly or indirectly, are permanently restrained and enjoined from 

collecting Location Information through Defendant’s software development kit(s) 

for mobile applications without first confirming that: 

A. The consumer has provided Affirmative Express Consent for the 

collection of Location Information to the mobile application that has 

integrated Defendant's software development kit(s); 

B. The consumer has not expressed, through any applicable operating 

system, device, or mobile application permission or setting, that the 

consumer does not consent to, or revokes consent to, the collection of 

Location Information from such mobile application; and 

C. The consumer has not expressed through any applicable operating 

system, device, or mobile application permission or setting, that the 

consumer’s consent to the collection of Location Information from such 

mobile application is limited to a level of accuracy that is less precise 

than the Location Information that is to be collected or inferred by 

Defendant. 

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IV. MANDATED PRIVACY PROGRAM 

IT IS FURTHER ORDERED that Defendant, and any business that 

Defendant controls directly, or indirectly, in connection with the Collection, 

maintenance, use, or Disclosure of, or provision of access to, Covered Information 

through an Ad Tech Service operated by Defendant, must, within sixty (60) days of 

issuance of this Order, establish and implement, and thereafter maintain, a 

comprehensive privacy program (“Privacy Program”) that protects the privacy of 

such Covered Information. To satisfy this requirement, Defendant must, at a 

minimum: 

A. Document in writing the content, implementation, and maintenance of 

the Privacy Program; 

B. Provide the written program and any evaluations thereof or updates 

thereto to Defendant’s board of directors or governing body or, if no such 

board or equivalent governing body exists, to a senior officer of 

Defendant responsible for Defendant’s Privacy Program at least once 

every twelve (12) months; 

C. Designate a qualified employee or employees to coordinate and be 

responsible for the Privacy Program; 

D. Assess and document, at least once every twelve (12) months, internal 

and external risks to the privacy of Covered Information that could result 

in the unauthorized Collection, maintenance, use, or Disclosure of, or 

provision of access to, Covered Information; 

E. Design, implement, maintain, and document safeguards that control for 

the material internal and external risks Defendant identifies to the privacy 

of Covered Information identified in response to sub-Provision IV.D. 

Each safeguard must be based on the volume and sensitivity of the 

Covered Information that is at risk, and the likelihood that the risk could 

be realized and result in the unauthorized Collection, maintenance, use, 

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or Disclosure of, or provision of access to, Covered Information. Such 

safeguards must also include: 

1. Regular privacy and data security training programs for all 

(1) employees and (2) independent contractors providing services 

to the Defendant’s technology team, in each case on at least an 

annual basis, updated to address any identified internal or external 

risks and safeguards implemented pursuant to this Order; 

2. Policies, procedures, and technical measures to comply with 

COPPA and the COPPA Rule; 

3. Policies, procedures, and technical measures to prevent the 

Collection, maintenance, use, or Disclosure of, or provision of 

access to, Covered Information inconsistent with Defendant’s 

representations to consumers; 

4. For those apps that Defendant manually reviews for inclusion in 

Defendant’s app categorization database, conduct an additional 

review of a subset of such included apps at least once every twelve 

(12) months with the first additional review occurring within fortyfive (45) days of entry of this Order, to determine whether any 

apps participating in an Ad Tech Service operated by Defendant 

should be removed from participating in the Ad Tech Service 

because they are child-directed; 

5. Create a record of the child-directed apps that Defendant has 

banned or removed from participating in its Ad Tech Service; and 

6. Provide COPPA training, at least once every twelve (12) months, 

with respect to the proper identification of child-directed Web sites 

and apps, to assist employees and independent contractors who 

analyze such sites and apps, including the traffic quality analysts, 

in performing their duties; 

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F. Assess, at least once every twelve (12) months, the sufficiency of any 

safeguards in place to address the internal and external risks to the 

privacy of Covered Information, and modify the Privacy Program based 

on the results; 

G. Test and monitor the effectiveness of the safeguards at least once every 

twelve (12) months, and modify the Privacy Program based on the 

results; 

H. Select and retain Service Providers capable of safeguarding Personal 

Information they access through or receive from Defendant, and 

contractually require Service Providers to implement and maintain 

safeguards sufficient to address the internal and external risks to the 

privacy of Personal Information; and 

I. Evaluate and adjust the Privacy Program in light of any changes to 

Defendant’s operations or business arrangements, new or more efficient 

technological or operational methods to control for the risks identified in 

Provision IV.D of this Order, or any other circumstances that Defendant 

knows or has reason to know may have an impact on the effectiveness of 

the Privacy Program or any of its individual safeguards. At a minimum, 

Defendant must evaluate the Privacy Program at least once every twelve 

(12) months and modify the Privacy Program based on the results. 

V. PRIVACY ASSESSMENTS BY A THIRD PARTY 

IT IS FURTHER ORDERED that, in connection with Defendant’s 

compliance with Provision IV of this Order titled Mandated Privacy Program, 

Defendant must obtain initial and biennial assessments (“Assessments”): 

A. The Assessments must be obtained from a qualified, objective, 

independent third-party professional (“Assessor”), who: (1) uses 

procedures and standards generally accepted in the profession; 

(2) conducts an independent review of the Privacy Program; (3) retains 

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all documents relevant to each Assessment for five (5) years after 

completion of such Assessment; and (4) will provide such documents to 

the Commission within ten (10) days of receipt of a written request from 

a representative of the Commission. No documents may be withheld on 

the basis of a claim of confidentiality, proprietary or trade secrets, work 

product protection, attorney-client privilege, statutory exemption, or any 

similar claim. 

B. For each Assessment, Defendant must provide the Associate Director for 

Enforcement for the Bureau of Consumer Protection at the Federal Trade 

Commission with the name, affiliation, and qualifications of the proposed 

Assessor, whom the Associate Director shall have the authority to 

approve in his or her sole discretion. 

C. The reporting period for the Assessments must cover: (1) the first 180 

days after the Privacy Program has been put in place for the initial 

Assessment; and (2) each two-year period thereafter for twenty (20) years 

after issuance of the Order for the biennial Assessments. 

D. Each Assessment must, for the entire assessment period: (1) determine 

whether Defendant has implemented and maintained the Privacy Program 

required by Provision IV of this Order, titled Mandated Privacy Program; 

(2) assess the effectiveness of Defendant’s implementation and 

maintenance of sub-Provisions IV.A-I; (3) identify any gaps or 

weaknesses in, or instances of material noncompliance with, the Privacy 

Program; (4) address the status of gaps or weaknesses in, or instances of 

material non-compliance with, the Privacy Program that were identified 

in any prior Assessment required by this Order; and (5) identify specific 

evidence (including but not limited to documents reviewed, sampling and 

testing performed, and interviews conducted) examined to make such 

determinations, assessments, and identifications, and explain why the 

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evidence that the Assessor examined is (a) appropriate for assessing an 

enterprise of Defendant’s size, complexity, and risk profile; and (b) 

sufficient to justify the Assessor’s findings. No finding of any 

Assessment shall rely primarily on assertions or attestations by 

Defendant’s management. The Assessment must be signed by the 

Assessor, state that the Assessor conducted an independent review of the 

Privacy Program and did not rely primarily on assertions or attestations 

by Defendant’s management, and state the number of hours that each 

member of the assessment team worked on the Assessment. To the extent 

that Defendant revises, updates, or adds one or more safeguards required 

under Provision IV of this Order during an Assessment period, the 

Assessment must assess the effectiveness of the revised, updated, or 

added safeguard(s) for the time period in which it was in effect, and 

provide a separate statement detailing the basis for each revised, updated, 

or additional safeguard. 

E. Each Assessment must be completed within sixty (60) days after the end 

of the reporting period to which the Assessment applies. Unless 

otherwise directed by a Commission representative in writing, Defendant 

must submit the initial Assessment to the Commission within ten (10) 

days after the Assessment has been completed via email to 

DEbrief@ftc.gov or 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, 

D.C. 20580. The subject line must begin, “United States v. OpenX 

Technologies, Inc.” All subsequent biennial Assessments must be 

retained by Defendant until the Order is terminated and provided to the 

Associate Director for Enforcement within ten (10) days of request. 

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VI. COOPERATION WITH THIRD-PARTY PRIVACY ASSESSOR 

IT IS FURTHER ORDERED that Defendant, whether acting directly or 

indirectly, in connection with any Assessment required by Provision V of this 

Order titled Privacy Assessments by a Third Party, must: 

A. Provide or otherwise make available to the Assessor all information and 

material in its possession, custody, or control that is relevant to the 

Assessment for which there is no reasonable claim of privilege. 

B. Provide or otherwise make available to the Assessor information about 

Defendant’s network(s) and all of Defendant’s IT assets so that the 

Assessor can determine the scope of the Assessment, and visibility to 

those portions of the network(s) and IT assets deemed in scope; and 

C. Disclose all material facts to the Assessor, and not misrepresent in any 

manner, expressly or by implication, any fact material to the Assessor’s: 

(1) determination of whether Defendant has implemented and maintained 

the Privacy Program required by Provision IV of this Order, titled 

Mandated Privacy Program; (2) assessment of the effectiveness of the 

implementation and maintenance of sub-Provisions IV.A-I; or (3) 

identification of any gaps or weaknesses in, or instances of material 

noncompliance with, the Privacy Program. 

VII. ANNUAL CERTIFICATION 

IT IS FURTHER ORDERED that Defendant must: 

A. One year after the issuance date of this Order, and each year thereafter 

for ten (10) years after entry of the Order, provide the Commission with a 

certification from a senior corporate manager, or, if no such senior 

corporate manager exists, a senior officer of Defendant responsible for 

Defendant’s Privacy Program that: (1) Defendant has established, 

implemented, and maintained the requirements of this Order; and (2) 

Defendant is not aware of any material noncompliance that has not been 

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(a) corrected or (b) disclosed to the Commission. The certification must 

be based on the personal knowledge of the senior corporate manager, 

senior officer, or subject matter experts upon whom the senior corporate 

manager or senior officer reasonably relies in making the certification. 

B. Unless otherwise directed by a Commission representative in writing, 

submit all annual certifications to the Commission pursuant to this Order 

via email to DEbrief@ftc.gov or 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, D.C. 20580. The subject line must begin, “United States v. 

OpenX Technologies, Inc.” 

VIII. MONETARY JUDGMENT FOR CIVIL PENALTY 

IT IS FURTHER ORDERED that: 

A. Judgment in the amount of seven million five hundred thousand dollars 

($7,500,000) is entered in favor of Plaintiff against Defendant, as a civil 

penalty. 

B. Defendant is ordered to pay to Plaintiff, by making payment to the 

Treasurer of the United States, two million dollars ($2,000,000), which, 

as Defendant stipulates, its undersigned counsel holds in escrow for no 

purpose other than payment to Plaintiff. Such payment must be made 

within seven (7) days of entry of this Order by electronic fund transfer in 

accordance with instructions previously provided by a representative of 

Plaintiff. Upon such payment, the remainder of the judgment is 

suspended, subject to the Subsections below. 

C. The Plaintiff’s agreement to the suspension of part of the judgment is 

expressly premised upon the truthfulness, accuracy, and completeness of 

Defendant’s sworn financial statements and related documents 

(collectively, “Financial Attestations”) submitted to the Commission, 

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including: 

1. The April 16, 2021 letter from Defendant’s counsel, Julia Tama, to 

Plaintiff’s counsel, Sarah Choi and Kevin Moriarty; 

2. The documentation enclosed as exhibits to the April 16, 2021 letter 

from Defendant’s counsel, Julia Tama, to Plaintiff’s counsel, Sarah 

Choi and Kevin Moriarty; 

3. The April 30, 2021 e-mail from Defendant’s counsel, Carter 

Greenbaum and attachments thereto; and 

4. The May 25, 2021 e-mail from Defendant’s counsel and 

attachments thereto. 

D. The suspension of the judgment will be lifted as to Defendant if, upon 

motion by Plaintiff, the Court finds that Defendant failed to disclose any 

material asset, materially misstated the value of any asset, or made any 

other material misstatement or omission in the Financial Attestations. 

E. If the suspension of the judgment is lifted, the judgment becomes 

immediately due as to Defendant in the amount specified in Subsection A 

of this Section (which the parties stipulate only for purposes of this 

Section represents the amount of civil penalty for the violations alleged 

in the Complaint), less any payment previously made pursuant to this 

Section, plus interest computed from the date of entry of this Order. 

IX. ADDITIONAL MONETARY PROVISIONS 

IT IS FURTHER ORDERED that: 

A. Defendant relinquishes 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. 

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, including in a proceeding to enforce its rights to any 

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payment or monetary judgment pursuant to this Order. 

C. Defendant acknowledges that its Taxpayer Identification Number(s), 

which Defendant 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. 

X. DATA DELETION 

IT IS FURTHER ORDERED that Defendant, within ninety (90) days of 

entry of this Order, shall delete all Ad Request Data collected prior to the entry of 

this Order, including any sample of the Ad Request Data used for internal 

analytics. 

XI. NOTICE TO DEMAND-SIDE PARTNERS 

IT IS FURTHER ORDERED that: 

A. Defendant, within thirty (30) days of entry of this Order, shall transmit 

the notice attached hereto as Exhibit A (“Notice”) by email to all of 

OpenX’s demand-side partners. 

B. Defendant, within thirty-five (35) days of entry of this Order, shall 

provide the Commission with a certification, signed by OpenX’s Chief 

Executive Officer on behalf of OpenX, that OpenX has transmitted the 

Notice to all of OpenX’s demand-side partners. 

XII. ORDER ACKNOWLEDGMENTS 

IT IS FURTHER ORDERED that Defendant obtains acknowledgments of 

receipt of this Order: 

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

the Commission an acknowledgment of receipt of this Order sworn under 

penalty of perjury. 

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

copy of this Order to: (1) all principals, officers, directors, and LLC 

managers and members; (2) all employees having managerial 

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responsibilities relating to the Collection, retention, storage, or security of 

Covered Information, and all agents and representatives who have 

managerial responsibility for the operation of any of Defendant’s Web 

sites or online services; and (3) any business entity resulting from any 

change in structure as set forth in the Provision titled Compliance 

Reporting. Delivery must occur within seven (7) days of entry of this 

Order for current personnel. To all others, delivery must occur before 

they assume their responsibilities. 

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

this Order, Defendant must obtain, within thirty (30) days, a signed and 

dated acknowledgment of receipt of this Order. 

XIII. COMPLIANCE REPORTING 

IT IS FURTHER ORDERED that Defendant make timely submissions to 

the Commission: 

A. One year after entry of this Order, Defendant must submit a compliance 

report, sworn under penalty of perjury, which does the following: (a) 

identify the primary physical, postal, and email address and telephone 

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

Commission and Plaintiff may use to communicate with Defendant; (b) 

identify all of Defendant’s businesses by all of their names, telephone 

numbers, and physical, postal, email, and Internet addresses; (c) describe 

the activities of each business; (d) describe in detail whether and how 

Defendant is in compliance with each Provision of this Order; (e) provide 

a copy of each different version of any privacy notice posted on each 

Web site or online service operated by Defendant; (f) provide a statement 

setting forth OpenX’s treatment of Child-directed Web sites and online 

services; and (g) provide a copy of each Order Acknowledgment 

obtained pursuant to this Order, unless previously submitted to the 

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Commission. 

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

compliance notice, sworn under penalty of perjury, within fourteen (14) 

days of any change in the following: (a) any designated point of contact; 

or (b) the structure of 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. Defendant must submit to the Commission notice of the filing of any 

bankruptcy petition, insolvency proceeding, or similar proceeding by or 

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

D. Any submission to the Commission 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, D.C. 20580. The subject line must begin: “United States v. 

OpenX Technologies, Inc.” 

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XIV. RECORDKEEPING 

IT IS FURTHER ORDERED that Defendant must create certain records for 

ten (10) years after entry of the Order, and retain each such record for five (5) 

years. Specifically, Defendant must create and retain the following records: 

A. Accounting records showing the revenues from all goods or services 

sold; 

B. All records necessary to demonstrate full compliance with each provision 

of this Order, including all submissions to the Commission; 

C. Copies of all consumer complaints relating to Defendant’s Collection, 

maintenance, use, or Disclosure of Covered Information, whether 

received directly or indirectly, such as through a Third Party, and any 

response; and 

D. A copy of each materially different document widely disseminated or 

caused to be widely disseminated by Defendant containing any 

representation regarding Defendant’s Collection, maintenance, use, or 

Disclosure practices pertaining to Covered Information. 

XV. COMPLIANCE MONITORING 

IT IS FURTHER ORDERED that, for the purpose of monitoring 

Defendant’s compliance with this Order, including any failure to transfer any 

assets as required by this Order: 

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

representative of the Commission or Plaintiff, 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 Plaintiff 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. 

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B. For matters concerning this Order, the Commission and Plaintiff are

authorized to communicate directly with Defendant. Defendant must

permit representatives of the Commission and Plaintiff 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 Plaintiff may use all other lawful means, including

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

individuals or entities, to Defendant or any individual or entity affiliated

with Defendant, 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,

57b-1.

XVI. 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 , 2021. 

UNITED STATES DISTRICT JUDGE 

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SO STIPULATED AND AGREED: 

FOR PLAINTIFF UNITED STATES OF AMERICA:

BRIAN M. BOYNTON 

Acting Assistant Attorney General 

Civil Division 

ARUN G. RAO 

Deputy Assistant Attorney General 

GUSTAV W. EYLER 

Director 

Consumer Protection Branch 

LISA K. HSIAO 

Assistant Director 

/s/ Zachary A. Dietert Dated: December 15, 2021 

ZACHARY A. DIETERT 

DAVID G. CROCKETT 

Trial Attorneys 

Consumer Protection Branch 

U.S. Department of Justice 

450 5th Street, NW, Suite 6400-South 

Washington, D.C. 20530 

Telephone: (202) 616-9027 (Dietert) 

 (202) 305-7196 (Crockett) 

Facsimile: (202) 514-8742 

Zachary.A.Dietert@usdoj.gov 

David.G.Crockett@usdoj.gov 

 

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APPENDIX A 

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4008 Federal Register / Vol. 78, No. 12 / Thursday, January 17, 2013 / Rules and Regulations 

 

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. 

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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

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EXHIBIT A 

Case 2:21-cv-09693 Document 3-1 Filed 12/15/21 Page 34 of 35 Page ID #:55
Exhibit A (“Notice”) 

Important Information About Our Privacy Practices: 

On [TO BE UPDATED], OpenX Technologies, Inc. (“OpenX”) reached a settlement with the 

Federal Trade Commission (“FTC”) to resolve allegations that OpenX collected, used, and 

transferred precise location data in the form of basic service set identifiers (“BSSIDs”), through 

software development kits (“SDKs”) offered prior to October 2018. At issue is that the BSSIDs 

were collected under circumstances where users had not granted or had denied requisite location 

permissions. The FTC also alleged that we failed to adequately comply with the Children’s 

Online Privacy Protection Act (“COPPA”) because, despite our policy of banning child-directed 

apps from participating in our Ad Exchange, we allowed some of these apps to participate in the 

Ad Exchange, resulting in targeted advertising to children absent parental notice and consent. 

We have taken steps to address these issues. We stopped collecting BSSIDs in 2018, and we 

have tightened our practices to ensure that they comply with COPPA. That includes re-reviewing 

mobile apps to properly identify those that are child-directed and then banning those apps from 

participating in the OpenX Ad Exchange. 

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