Why Facebook's Argument Against Privacy For Minors Is Doomed

The Federal Trade Commission wants to protect the privacy of minors, but Facebook objects on First Amendment grounds. Here's why the social network's argument is weak, self-serving, and bound to fail.

Known as the Children's Online Privacy Protection Act, the proposed rules represent the biggest overhaul of US privacy policy with respect to minors in more than a decade. They would require parental consent for users under 18 for a wide range of common data-collection techniques, including cookies and location tracking. Facebook allows users as young as 13 to become members, so the rules would affect the site's users between 13 and 18.

Facebook, responding to the FTC's request for public comments, submitted a letter arguing for a lower age of consent. The company suggested that the proposed rules would violate the First Amendment free speech rights of its minor users.

'Because the Commission's proposal would restrict the ability of users who are 13 years old or older to 'Like,' comment on, or recommend the websites or services on which those plugins are integrated, it would infringe upon their constitutionally protected right to engage in protected speech,' Facebook said. 'The Supreme Court has recognized on numerous occasions that teens are entitled to First Amendment protection.'

The company's argument is weak on two counts.

First, it misrepresents the FTC's action, according to Ted Claypoole, an attorney specializing in privacy with Womble Carlyle Sandridge Rice in Charlotte, NC. 'The FTC is not trying to stop the teens from 'liking' anything or from expressing their interest in any topic," the attorney said. "Instead, the FTC is saying that Facebook must stop collecting and using data about these 'likes' and expressions.'

Second, Facebook's use of free speech as the basis of its argument is misguided at best, Claypool said. 'These are business issues, not Constitutional crises,' he said.

Ultimately, the free-speech argument may be disingenuous. Claypoole speculated that Facebook is less interested in protecting minors' rights than in avoiding the expense of creating a system that would treat one set of its users - those under 18 in the U.S. - differently than others.