• by Wendy Davis , Staff Writer @wendyndavis, June 2, 2010

Does the federal Children's Online Privacy and Protection Act limit marketers' ability to send behaviorally targeted ads to users under 13?

Some advocates want the Federal Trade Commission to say the answer is yes. Speaking today at an FTC workshop, American University professor and COPPA architect Kathryn Montgomery reiterated her argument that the law should be interpreted to prohibit behavioral targeting of minors under 13, at least absent parental consent.

The statute itself bans marketers from collecting "personal information" from children under 13 without parental consent. Problem is, no one can agree on the type of data that should be considered personal information.

The statute itself says the term includes obvious types of data -- names, addresses and telephone numbers -- but also any "identifier" the FTC determines will permit "the physical or online contacting of a specific individual."

Whether cookies fall into that category appears to be an open question.

On one hand, marketers certainly seem to hope they're reaching specific individuals when they pay a premium for behavioral targeting. On the other hand, if a computer is used by more than one person in a household, there's no guarantee that the cookies associated with that computer can be matched to particular individuals.

Regardless, there could soon be increased pressure to eschew targeting of children. Jules Polonetsky, co-chairman and director of the industry-funded think tank Future of Privacy Forum, told the FTC that the recent industry self-regulatory guidelines could and should have declared a site with a large audience of young kids -- tweens, he said, present a gray area -- off-limits for behavioral targeting purposes. In fact, he said, while he thinks the self-regulatory guidelines make sense in many respect, they "didn't nail it" when it comes to targeting and children.