An analysis of current United
States Laws and FTC Regulations
The
Problem:
As
educators, we are often responsible for monitoring student access to the
Internet. With this responsibility
comes the dilemma of the teacher having to make the determination of what should
and should not be made available for student access. School districts have added filtering
systems to their computer networks and developed Acceptable Use Policies with
the goals of knocking out illicit sites and assisting school staff in making
these decisions. However, these two
elements are not enough to cover all bases in protecting students. Corporations are using the World Wide
Web in order to reach a very large and impressionable market, school age
children, to expand on their profits. An article written for the “Consumer’s
Union” stated the problem this way.
“But today, corporate
involvement in schools often goes beyond self-serving philanthropy to become
commercial opportunism. Limited local boosterism is overshadowed by national
marketing or advocacy efforts from major companies that often put corporate
logos, brand names, and other messages before school kids. Oil and utility
companies, food companies and health providers, banks and credit card companies
are among those who look for ways to get their messages to kids while those kids
are a "captive audience" in school.” (Consumers
Union 1995)
Although things have changed for the better since then, the problem of
commercialism in schools still exists.
School districts are often playing both sides of the coin by seeking
advice and assistance in shielding students in school from exploitation while
forming partnerships with corporations for additional funding. Federal and state governments have
recognized the need for additional protection of students from advertising
pressures, and remain busy attempting to develop legislation to try to keep up
with the various forms of exploitation.
The evolution of legislation regarding advertising designed for school
age consumers continues.
Earlier Attempts at Solutions:
The Children’s Advertising Review Unit (CARU)
initiated a program in 1974 called Safe Harbor, which was
one of the first organizations to address advertising geared towards youth and
ethical behavior. The goals of this
program include providing guidelines for businesses to follow regarding
children’s advertising, as well as assisting businesses in keeping current on
relevant laws. However, businesses
working with Safe Harbor were doing so on a voluntary basis. Although Internet commerce was not
addressed until later, CARU had established its foot in the door on the
forefront of advocating children’s rights regarding advertising. The need for E-commerce
advertising regulation was recognized as early as 1994 when “spam” in e-mails
was first used and banner ads began showing up on computer screens. However, no major changes in laws
regarding telecommunications had been written since original FCC laws were put
on the books in 1934. Then the
Telecommunications Reform Act of
1996 was passed. Since this
was the first time in 62 years major changes had been made, this legislation was
necessarily very broad in its scope.
Included in this Act was the Communications Decency Act, which
immediately came under fire from individuals, such as John
Perry Barlow, and large groups, such as the Electronic
Frontier Foundation calling for Internet users to protest against the CDA
claiming it violated the right of others had a great deal of animosity for this
legislation. The fact that the CDA was a part of the Telecommunications Act
presented additional problems for educators. These problems arose because the focus
of educators protecting children not only includes lewd, violent, or
pornographic sites but also includes the way advertisers use the Internet as a
tool to gain more consumers.
Therefore, opposition to any part of the Act presented roadblocks for the
other components of the Act. In
1997, the Presidential administration released A
Framework for Global Electronic Commerce, which was a policy paper
providing guidelines for both national and international E-commerce. Although many issues, from a clean
environment to national defense were addressed, the issue of marketing
strategies towards school children on the Internet was not addressed.
“Newer” Regulations and the
Impact on Education:
Since 1997, there have been many attempts to
change laws with respect to children using the Internet. To date, the regulations issued by the
Federal Trade Commission have likely had the
greatest impact on children and their use on the Internet. The Children's Online Privacy
Protection Act of 1998 (COPPA) was signed into law on October 21, 1998. As of April 21, 2000, it is a violation
of federal law for commercial Web sites to collect, use, or disclose personal
information off the Internet from children under the age of 13 without first
gaining parental consent.
Key
Provisions of this Law Include
· Privacy Notice on the Web Site
· Verifiable Parental Consent
· Choice Regarding Disclosure to Third Parties
· Online Activities for which Parental Consent is Not Required
· Coverage of Information Submitted Online
· Role of Schools in Obtaining Consent for Students
· Safe Harbor Program
·
Enforcement
While this law is a very important piece of legislation it leaves a few gaps that still need to be filled. For example, the age limit at which parental consent is required was placed at 13. This creates yet another dilemma for educators at the middle school level. Teachers are still left to use their judgment in monitoring students above age 13. Another law, written in 1999, also addressed protecting children online and the use of filtering. This was the Children’s Internet Protection Act (CIPA). Another law written with the goal of further protecting children online was Senate Bill 435, entitled An Act Concerning Captive Audience/Stop Commercialism in Schools Act of 2001. Unfortunately, these laws leave openings for attack from opponents of the legislation. The fallout was immediate as The American Civil Liberties Union and others opposing this legislation began publicity campaigns and filing lawsuits challenging this legislation as soon as the FTC’s intentions were publicized. Violation of freedom of speech rights is a primary argument to this legislation, but it is not the only issue that has come under fire. The debate over laws regarding children and their use on the internet continues. As these battles are raging, other groups, such as the Wisconsin Department of Public Instruction have created Web Sites explaining the Telecommunications Acts and their impacts on education and libraries. Other unanticipated events resulted with the passage of this legislation. Declan McCullah wrote, “…Call it the law of unintended consequences: The Children’s Online Privacy Protection Act, which Congress said would help children, in some cases had precisely the opposite effect.” (McCullah 2000) In this instance, e-mail and mailing list operations for the Thomas the Tank Engine television show had to discontinue, disappointing millions of young fans. Money also rapidly became an issue as new strategies and changes in current advertising methods became necessary in complying with the new legislation. In an article for CNN.Com, James Niccolai wrote the following.
“…Conforming with COPPA will cost Web site
operators between $60,000 and $100,000 per year, primarily in paying additional
staff to handle registration systems, estimated Parry Aftab, a children's
Internet lawyer and author of "The Parents Guide to Protecting Your Children in
Cyberspace”.”(Niccolai
2000)
What Can Educators Do?
We can plainly see with the few examples
above, the problems that arise when writing legislation regarding Children’s use
of the Internet are numerous and complex.
There are no simple solutions to these problems. The following are suggestions what educators
can do from the November
newsletter of Commercial
Free.Org.
*Tell your local school board members, state legislators and Members of Congress to adopt strong policies to protect children from commercial advertising and market research in the public schools, and to oppose the use of the compulsory school laws to deliver a captive audience of schoolchildren to corporate advertisers and market researchers.
*There is strength in numbers. Begin to organize parents, PTAs and other civic organizations and people to your cause. Disseminate the issues, the nature of commercialism in the school, the policies you wish adopted, reasons for your concerns, what you have asked school district officials to do, and their response.
* Collect facts and information about the state of commercialism in your school district. Questions to ask: what is the nature of the commercialism that you have? How many schools and children are involved? What products are being targeted to children, and are these products in conflict with your school's educational or nutritional programs (such as the marketing of candy, snack food, or soda drinks.) Have parents been notified about the commercial endeavors, and what is the company gaining by partnering with your school district?
* Check to determine if your school district has entered into any contractual arrangements with a commercial enterprise. If it has, examine the provisions of the contract. School contracts are public documents and open for public review.
* You can work individually as a parent or concerned citizen to create a commercial-free zone in your district. After you have gathered the facts, talk personally to your school principal, superintendent and school board members about your commercial concerns. You could also form a committee of parent or civic leaders to discuss the need for sound commercial policies. If possible, you would like to get the policies passed through cooperation and working in collaboration with your school district. Try not to threaten educators and board members, but reasonably discuss your concerns. Remember, you have points of view that may not have come to their attention before.
* As you organize conversations with local policymakers, have a well defined list of what it is that you want, including the adoption of the policies, and stick to your convictions. Also, develop a list of talking points and arguments for your position. There may be a time to compromise, but don't tip your hat until it is absolutely necessary. Ask each policymaker for their response, and keep written records of your meeting, people contacted, dates and positions of various policymakers. In addition, be sure to write a thank-you letter, and follow-up to any questions that you may be asked. If reason does not work, and your school district officials choose not to respond, you need to increase the pressure. The following could be your next steps:
* Research your school district's current policies on commercialism. Some school districts may have no policies, some may have policies that need strengthening and some school boards may have policies that officially allow commercialism. You can use the guidelines to "amend" current policies that need strengthening, or you may wish to alter language as appropriate.
* Educating the public about the issues is essential. Schedule an appointment with editors or writers from your newspaper. Contact or call your TV stations and other local media, and put out a press release. Don't worry that no one will pay attention. The media is always interested in citizens who raise important issues in their school district!
* Get on the agenda of your school board meeting and make a presentation. Some school districts require advance notice of participation, while others devote special time at every school board meeting to hear public concerns. In many cases, you need to call the school board in advance to get on the agenda. As you make your presentation, try to use visuals; perhaps an example of an offensive contract provision, a color copy of an ad that was in an educational material, or a taping of a commercial (if it does not violate copyright laws). Visuals help people better grasp the nature of the commercial activity.
* Never forget to discuss the positive impact that a meaningful public-private relationship can have on the district's educational system. Emphasize that your campaign is not anti-business, or anti-public schools, but anti-commercialism.
* Don't give up. For every position, there usually is a counter position or opposition. Be prepared to deal with delaying tactics, indifference, discrediting of your arguments and school officials who plead that ‘this is the only way they can add more money to the budget.' All of this can be countered and remember, there are many other advocates around the nation that are tackling the same issues. High standards for public schools means that neither the school nor the educational program is improved through marketing products.
As the explosion of technology and
commercialism continues far more problems will arise without any easy
solutions. As educators, we need to
keep abreast with legislation and advances in technology. We need to continue to educate our
students in recognizing various marketing techniques and the potential “traps”
that some E-commerce businesses will attempt to set for them. We also need to continue to be aware of
the marketing techniques used everywhere around us and not become too
desensitized to it. Finally, we
must be vigilant, willing to take a stand against unethical practices by making
violations known, and supporting our legislators when they attempt to write
clearer and better laws regarding children and E-commerce.