Andrews Smith Children’s Online Privacy Protection Act (COPPA) recusal request

Chairman Joseph Simons and Commissioners Noah Phillips, Rohit Chopra, Rebecca Slaughter and Christine Wilson
Federal Trade Commission
600 Pennsylvania Avenue NW
Washington, D.C. 20580

October 7, 2019

Dear Commissioners:

We are writing to call for the recusal of Andrew Smith, the director of the Bureau of Consumer Protection, from any discussions about or decisions regarding new regulations associated with the Children’s Online Privacy Protection Act (COPPA).

In July, the Federal Trade Commission requested comment on dozens of questions about the current and future operation of COPPA. Those questions have raised concerns that the FTC is considering changes to COPPA that would weaken this vital law and put children at risk.

Mr. Smith validated these concerns at a September conference of the Better Business Bureau’s National Advertising Division when he indicated the agency is “worried” that YouTube will become a “desert of crap” without behaviorally targeted ads. Those comments reflect industry biased talking points rather than evidence and a clear bias. They suggest Mr. Smith has prejudged the issues to be considered in the COPPA rulemaking. And they also imply that he is more worried about protecting Big Tech companies than children, a particularly troubling stance in light of COPPA’s clear purpose, as evidenced by its very name: the Children’s Online Privacy Protection Act.

A key term of the recent FTC settlement with Google over COPPA violations on YouTube (which Mr. Smith presumably approved) ended YouTube’s illegal behavioral advertising toward children. It now appears that Mr. Smith is considering taking the law in the wrong direction before the settlement even has a chance to take effect.

It is not surprising that Mr. Smith takes this view, given the course of his career. According to documents obtained by Public Citizen through a Freedom of Information Act request, conflict of interest rules prohibit Mr. Smith from making decisions about or even discussing 120 companies. Those companies include many that base their business in whole or part on behavioral advertising, including Facebook and Twitter, and companies with a particular interest in targeting advertising to children, such as Disney.

The prohibition on using the intrusive data collection practices behavioral advertising requires on children is precisely the element of COPPA that companies like those on Mr. Smith’s conflict-of-interest list most want to weaken.

Behavioral and other forms of what’s called “programmatic” advertising relies on extensive tracking and data collection on individuals and is currently prohibited by COPPA for children under 13 years old without parental consent. Even for adults, behavioral advertising has dangerous implications; for children, the implications could be disastrous. The goal of behavioral advertising is for corporations to know and exploit individual desires, fears, and hopes. Children are more vulnerable because they lack the capacity to identify and understand the purpose of advertising, let alone protect their interests against advertising for products that could potentially harm their health or their future life chances. As online business grows more dependent on behavioral advertising, prohibiting invasive tracking for children is critical to ensure children’s brains develop in response to guidance from human beings rather than corporations hoping to create lifelong customers. No parent wants their kids subjected to behavioral advertising.

Changes to COPPA have the potential to affect every one of the companies Mr. Smith is bound to avoid discussing. Ethics rules may only require Mr. Smith to recuse himself from “particular” matters affecting the 120 companies for which he is conflicted, but the ethics rules were not written in anticipation of someone with the extraordinary set of conflicts that Mr. Smith maintains. Because of the breadth of his conflicts involving Tech and data companies, he should properly be recused from policy matters affecting those companies. The imperative that he recuse is only heightened by his telegraphing his desire to eviscerate the most important protection for children in COPPA. It will be impossible for the American people to have faith in the FTC’s COPPA review process if Mr. Smith maintains a central role in it.

Sincerely,

Center for Digitial Democracy
Campaign for a Commercial-Free Childhood
Media Alliance
Revolving Door Project
Parent Coalition for Student Privacy
Public Citizen
Campaign for a Commercial-Free Childhood
Center for Digital Democracy
Media Alliance
Parent Coalition for Student Privacy
Public Citizen
Revolving Door Project