Recently, Senator Josh Hawley (R-Mo) and Senator Ed Markey (D-Ma) drafted some modifications to COPPA that have the potential to create a catastrophic damage in the Ed-Tech industry, particularly for all publishers and schools who use literally anything on the internet in educational ways. 

Here is the text of the bill: https://www.markey.senate.gov/imo/media/doc/Leg%20text%20--Markey-Hawley%203.11.19%20FINAL.pdf

The Senators are taking aim at the “evil” major tech players who use all sorts of algorithms to target market and this is bad because they can profile and put minor children in those cross-hairs. Yet by targeting those entities, a whole lot of beneficial parties could be wiped out – and for unforeseen reasons. 

Take a look at the definition of “targeted marketing” in the bill and start to sweat, because it means the use of any image, any message, that targets any minor child. No caveat that it must be a commercial message or from what types of commercialism or modifications to that simple meaning. This would mean that even public schools using any school system hosted on the internet could not use messages that profile users (“hello sixth-grade students, click this link for your reading book”), or invite any minor child users to any service or product of theirs or ones they use from publishers. Schools needn’t think that they have an out as a “non-profit” exemption in the bill either, since technically public schools are not legally non-profits and some do actually profit, but “sovereign entity” governments with different laws. That’s why non-profit non-governmental entities (NGOs) are called what they are within the political realm. 

The Alarming Problem

Here’s the thing: schools profile students as a core function to cause learning, and they definitely promote their service and not only their own lesson-plan products, but those of thousands of publishers. Universities and colleges profile and target to attract students, and their ideal place to do that is to minor children. 

Thousands of applications used by schools right now have innate function that tests and sorts students (profiling) and then uses the same sort of algorithms that advertising systems do to auto-recommend paths of learning, content, and intersection with teachers. This is the whole promised magic of true personalization.  

Imagine that as a school you can no longer send or post messages that recommend an eTextbook, or piece of courseware unless you had “verifiable consent” from that minor child for every single system, App, or resource in the course. It doesn’t appear that the text of the law allows for “blanket consent” since the wording is “an operator,” as in singular and thus related to individual systems. Can you imagine a school getting verifiable consent for the 30+ systems, Apps, courseware sites, digital book collection sites, platform sites, and more in use for each student each year, and for many also parental sign-off? Parents would feel like they were going through a mortgage process with all those pages of signatures, and possibly missing the fine print that gave their child away to the fairy tale Rumpelstiltskin because they couldn’t guess his name with only three guesses (the parallels to forgetting your password were to aligned to pass up this analogy).

Parents would just say “No.” Then schools are back to square one – no digital, or a mosaic of some digital for some and not for others and a world of hurt trying to straddle both. This is just one more straw to break the proverbial camels back of reasons why the American public wants “out” of our archaic and overly-regulated public education system. 

Worrisome Sections

The worrisome sections are (highlighted for illustrating points in this article): 

“(A)  PROHIBITION.—Except as provided in subparagraph (B), it shall be unlawful for an operator of a  website, online service, online application, or mobile application to use, disclose to third parties, or  compile personal information of a minor for purposes of targeted marketing if— the minor is a user of the website, online service, online application, or mobile application; and the operator has constructive knowledge that the minor is a minor; or the website, online service, online application, or mobile application is directed to a minor.

 (B)  EXCEPTION.—Subparagraph (A)  shall not apply to an operator that has obtained the verifiable consent of the relevant minor.”

Also from the bill:  “TARGETED  MARKETING.—The term  ‘targeted  marketing’ means advertising or any  other effort to market a product or  service  that  is  directed  to a specific individual or device (A) based on the (i) personal information of the (I) individual; or (II) a  group of individuals who are similar in gender, age, income level, race, or ethnicity to the specific individual to whom the product or service is marketed; (ii) psychological profiling; or (iii) a unique identifier of the device; and (B) as a result of use by the individual, access by any device of the individual, or use by a group of individuals who are similar  to the specific individual, of— (i) a website; (ii) an online service; (iii) an online application; (iv) a mobile application; or (v) an operating system.”

“Interested in science” students in the commercial sphere should be able to be advertised to with their specific identities anonymized so that schools or advertisers could invite them, and if that student then allows the connection, a digital bond is formed that is of value to that student. This has the potentially to vastly lower recruitment costs for colleges. 

Publisher’s seeking to sell new applications teaching math of any kind should be allowed to advertise in a student’s social feed based on an anonymized profile showing student(s) getting low grades or indicating they are struggling with math. Why not? This would be true of any of those sorts of helpful programs for learning. The same could be done for teachers of math so they inspect and maybe buy the new math application from some publisher and perhaps get better results with students. In other words, the benefits of target marketing, also known as profiling-and-pushing-messages for helpful learning programs for users could be enormous. 

Saving Personalized Learning

These modifications are needed in the COPPA law so that the vision of really personalized learning is not lost:

Educational Interest or Needs Sites/Apps/Systems/Platforms Allow Minors Anonymized Marketing

• A provision to allow compiling of information on individual minor users that is anonymized for purposes of advertiser custom targeting and their creation of association (friends).  Anonymized means targeters do not see names but can message/advertise to specific groups of users based on educational interests or needs. This caveat is meaningless to most commercial interests like companies that take advertising for something like soft drinks but will be very important in the education field for learning resources. It would allow colleges, employers, schools, and advertisers of educational materials to advertise to potentially interested minor or adult students or teachers based on user profiles, as well as establish connections to those users if the users allow. Minor user profiles should remain are “hidden” for their full context in this sense of targeting unless the system is an inside system for any entity whose primary purpose is delivering learning and all users are part of a collective learning group. 

Bias Searches Allowed tied to Knowledge Marketplaces including Geo Region

• Self-directed searches by minors within a knowledge marketplace site or app or system internal or external (including custom instances within a greater system) to a learning-focused entity can bias search results based on user profiles with various paid and un-paid product advertisers listed in that marketplace so that, for example, students who are just learning fractions are not seeing algebra at the top of their search but given the top paid or free products more appropriate to their learning level in math or location. Texas State academic standards, for example, are different than all other States so those lesson products showing in search should be biased by geo-location (optional, obviously, and could be statewide or region rather than pinpoint geolocation.) Systems must be built so that users can also bypass those biases by going further down the list just like search-engine ranking is done.

Reverse Advertising Controls Allowed

• Any system profiling users should be allowed to do “reverse advertising” which would allow a group who has multiple users within a site to set rules around what anyone associated with them in their group can see. Schools, for example should be able to set rules for resources only they made plus others they approve of which closes off distractions by outside offerings. This is because most schools use outside systems in the cloud and have their own account “instance” within that greater pool of users. A reverse advertising (profiling their own users) ability still markets certain things like ebooks and courseware but in a defined way and can also be made a parental control mechanism. Therefore, a blanket “no advertising” and no profiling for minor children would not be in the interest of minors because it rules out the idea of “reverse advertising” as a market mechanisms inside systems for groups which would show only certain things, or no things at all, as the brand of the aggregating school or parental preference. The digital mechanisms are not dissimilar from buying distributed advertising as the key word tags and software mechanisms are the same.  In addition, all free or premium-account social media and markets could purposefully allow an expanded user or group profile so that the user buys, or gains by contribution, the privilege of telling the site what not to ever show them. Some of that already exists with advertising online where you can click on an “X” on an ad and tell the service to stop showing that ad. Not providing this caveat in the COPPA law will dramatically halt innovation in the education field.

Archive Allowed Plus Full Delete

• A full delete or “wipe” of an entire profile that may have taken years to build up could be bad for users and even for law enforcement in the long run. Sites should be allowed to give minors and their parents the right to “archive” which is a temporary “freeze” of their account that takes it off the ability of being found by anyone but them with their username and password. They can, however, recover it if they want to. A delay period before full wipe of the account is also recommended for youth because in a fit of angst, they may try to do a full delete and regret it later because they can’t re-create all posts, records and grades that teachers validated along the way now that they are out of school if, say, a system is a social external one. A full wipe of the account could be enabled only after an archive period, after which a site can email the user and tell them the archive period is up and they can now do a full delete if they so wish, and it should necessarily wipe all data. The freedom to be forgotten is very important, and no site has a reason to keep data forever. 

• Non-Profits Cannot Be Excluded

There is no reason to omit non-profits from the same rules as governmental sovereign entities (public schools) and commercial companies, particularly since the burdens to write privacy policies and mutate software code to comply are insignificant. Too many instances in the past such as the inBloom controversy indicate that just because a website is non-profit does not mean it is not doing the things that the law is expressly trying to forbid: the use of minor child profiles commercially. In the case of inBloom, that was exactly what was happening, and it was large non-profits behind it that were driving that. Additionally, non-profits do not pay taxes and support public education, incentivizing them to maintain status quo rather than true innovation in order to continue their relevancy in address of some problem (the problem must remain). It has also been seen that non-profits in education often advance underlying interests of their big commercial supporters to cram products into schools through “research”, “modeling” or “training” that is otherwise already offered by for-profits that support public education with taxes. Therefore, the establishment of a non-profit exclusion hurts commercial enterprise and reduces potential taxation in support of public programs of all kinds. Of course this would not apply to the non-profit charities set up as attached to sovereign entities (public schools). 

Call or write your Federal Legislator today in support of these modifications to their modifications. 

--Learning Counsel Staff