Oct. 2, 2012 at 3:23 PM ET
Among the revisions proposed to the very out-of-date Children’s Online Privacy Protection Act of 1998, Facebook is opposing a change that it says would restrict the ability of users who are 13 and older to "like" postings on the social network.
The revised law, according to the Federal Trade Commission, would "clarify that a plug-in or ad network is covered by the Rule when it knows or has reason to know that it is collecting personal information through a child-directed website or online service."
"Likes" on Facebook are considered a "plug-in." They're also a valuable asset for Facebook. Many of the advertising campaigns on Facebook are designed to garner "likes," as an indicator that those campaigns are working.
The children's online privacy law applies to children under age 13, and has basically required websites to get parental permission in order for those children to use the site. That's why Facebook doesn't allow users under 13, although the reality is that in the U.S., an estimated 5.6 million children 12 and younger are on the site.
But Facebook says the Federal Trade Commission's COPPA revisions "would restrict the ability of users who are 13 years old or older to 'Like,' comment on, or recommend the websites or services," and would "infringe upon their constitutionally protected right to engage in protected speech."
Erin M. Egan, Facebook's chief privacy officer, policy, made the remarks in a 20-page letter to the FTC.
"The Supreme Court has recognized on numerous occasions that teens are entitled to First Amendment protection," Egan said in the letter. "A government regulation that restricts teens’ ability to engage in protected speech — as the proposed COPPA Rule would do — raises issues under the First Amendment."
The FTC may or may not "like" Facebook's argument, but at least one recent court ruling has said that "likes" on Facebook are not the equivalent of free speech.
In Bland vs. Roberts, a federal district court in Virginia said earlier this year that clicking the "like" button is not "sufficient speech to garner First Amendment protection." Five employees of the sheriff's department in Hampton, Va., said they were fired for "liking" the sheriff's opponent's Facebook campaign page. The sheriff said not so; the employees were let go for reasons including unsatisfactory work performance and budgetary concerns.
The ruling is being appealed.
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