A Child's Right to Privacy

Privacy laws have not kept pace with technological advances and societal trends and innovations. CAI’s work in this area seeks to protect the rights of children and youth, and the right of parents to make decisions as to the use and dissemination of their children’s images, information, postings, et al.

CAI's work in this area includes the following:

  • In 2019, CAI is sponsoring AB 1665 (Chau), the Parent’s Accountability and Child Protection Act. Among other things, the bill would prohibit any person or business that conducts business in California, that operates a social media internet website or application requiring opt-in consent pursuant the California Consumer Privacy Act of 2018 (CCPA), to obtain that consent prior to selling a minor's personal information (PI) in a manner that is be separate from the social media internet website or the application's general terms and conditions. The bill would provide that failure of a parent to provide the parental consent to the sale of the minor's PI shall not result in any minor being denied access to the social media internet website or application.
  • In May 2018, The Hill published a commentary by CAI’s Bob Fellmeth describing how Facebook’s “Terms of Service” constitutes a “carte blanche seizure of information.” Fellmeth also urged Facebook to consider—or Congress and/or the California legislature to impose—three reforms: (1) all communications on Facebook should be transmitted only to the persons to whom they are directed, with a limited exception where consent is obtained in advance; (2) all personal information on a Facebook account should be accessible only to the subscriber and approved friends—Facebook should not transmit information to any third party without specific consent; and (3) mass communication through Facebook must identify the sender by accurate personal, corporate, or other name.
  • In April 2018, the Sacramento Bee published an op-ed by CAI’s Ed Howard, which, among other things, called on California to require meaningful parental consent before social media companies can profit by selling children’s faces and names to third parties for their commercial use.
  • CAI’s major case in this area was K.D. v. Facebook, where we began as attorneys for objectors to a proposed settlement in a federal class action that would allow the enforcement of a new terms and conditions clause granting to Facebook the unfettered right to expropriate any posting, including photos, of any teen subscriber, rearrange it, and transmit it to whomever it wished in blank check fashion — without prior notice to the teen and with no notice to or consent from a parent. After the District Court approved the settlement, CAI appealed to the Ninth Circuit, contending that (1) the settlement is not fair, adequate and reasonable for the subclass of ten million American children, as it places them in a position with less protection than they would have without the agreement; (2) it purports to recruit the federal courts to enter an order that would effectively exempt Facebook from statutes protecting privacy and children; and (3) contrary to Facebook’s contention, the federal Children’s Online Privacy Protection Act, which only applies to children under the age of 13, does not preempt or void any common law or state privacy provision as to teens who are over the age of 13.  CAI also pointed out why the District Court’s review of the proposed settlement should have been much more robust than it was: the case settled before class certification; Facebook repeatedly threatened the class with millions of dollars in attorney fees (due to an unusual reverse fee shift provision), creating an unprecedented forced collusion contaminant; and the settlement was rejected by some organizations that otherwise would have received cy pres awards pursuant to the terms of the agreement. Regrettably, the Ninth Circuit affirmed the District Court’s approval of the settlement agreement, despite the fact that Facebook’s legal contentions drew amicus opposition from the Federal Trade Commission, the California Attorney General, and some of the country’s most highly respected privacy and child rights institutions. CAI’s Petition for Writ of Certiorari to the U.S. Supreme Court was denied in October 2016.