The FTC’s splashy policy statement on “ed tech” is more modest than press coverage suggests.
The United States (U.S.) Federal Trade Commission issued a policy statement on how education technology providers need to comply the “Children’s Online Privacy Protection Act” (COPPA) when providing services or products that schools direct their students to use. The FTC touted the step as changing how the agency is policing this class of technology providers that have grown more prominent during the COVID pandemic when millions of students attended school online. However, a close reading of COPPA and its implementing regulations raises questions about the FTC’s claims and places the policy statement in a more modest context than the agency’s press releases might lead one to believe. Indeed, a Republican Commissioner claimed all the policy statement does is collect and summarize existing agency guidance on COPPA.
At its open meeting last week, the FTC unanimously adopted a policy statement on how it intends to enforce the COPPA statute and regulations in the context of education technology (ed tech.) Policy statements must be distinguished from regulation, with the latter having legal force and the former constituting an agency’s plans on how to use discretionary authority. Hence, the FTC put on notice the ed tech industry on how the agency will use its authority under COPPA and other statutes, namely the FTC Act. Moreover, a policy statement does not signify that enforcement action is imminent.