On July 19, 2023, the Federal Trade Commission (the “FTC”) announced that it is seeking comment on an application for a new verifiable parental consent mechanism under the Children’s Online Privacy Protection Act (“COPPA”). The application, submitted jointly by the Entertainment Software Rating Board, Yoti, and SuperAwesome (collectively, the “Applicants”), requests the FTC to approve Yoti’s “Facial Age Estimation” technology as a method to obtain parental consent. The request for public comment was published in the Federal Register on July 20, 2023.

COPPA requires operators of “child-directed” websites and online services to obtain verifiable parental consent before collecting personal information from a child under thirteen. While the COPPA Rule expressly provides five (5) acceptable methods for obtaining parental consent, it also allows interested parties to apply for new parental consent mechanisms. The FTC can approve a new mechanism if it is “reasonably calculated, in light of available technology, to ensure that the person providing consent is the child’s parent.” To date, the FTC has approved two (2) additional methods for obtaining parental consent and denied four (4) applications.

Facial Age Estimation is a machine-learning technology that analyzes the facial geometry from a person’s photo to estimate his or her age. According to the application, the technology can correctly estimate that someone is an adult 99.97% of the time. Notably, the Applicants recognize that Facial Age Estimation only detects a person’s age, rather than ensuring the person providing consent is the child’s parent. But they point out that all of the currently approved parental consent mechanisms simply establish the person providing consent is an adult, without definitively authenticating the parent-child relationship.

The FTC has invited the public to comment, including on the following topics:

• Whether any existing parental consent mechanism in the COPPA Rule covers Facial Age Estimation.
• Whether Facial Age Estimation is reasonably calculated, considering available technology, to ensure that the person providing consent is the child’s parent.
• Whether Facial Age Estimation poses a risk to consumers’ personal information, including biometric information, and if so, whether the benefit to consumers and businesses outweigh such risk.
• Whether Facial Age Estimation poses a risk of disproportionate error rates or other outcomes for particular demographic groups, and if so, whether the benefit to consumers and businesses outweigh such risk.

Interested parties have until August 21, 2023 to submit comments. The FTC is expected to provide a written decision on the application by September 30, 2023.

Alston & Bird’s Privacy, Cyber & Data Strategy and Consumer Protection/FTC Teams will continue to monitor developments surrounding COPPA and the COPPA Rule. Please contact us if you have any questions.