美国儿童网络隐私权经典案例起诉状原文2.pdf

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1、Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 1 of 11UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA UNITED STATES OF AMERICA,Plaintiff,Civil Action No.v.JONES O.GODWIN,an individual d/b/a ,Defendant.COMPLAINT FOR CIVIL PENALTIES,INJUNCTIVE,AND OTHER RELIEF Plaintiff,the United Sta

2、tes of America,acting upon notification and authorization to the Attorney General by the Federal Trade Commission(FTC or Commission),for its Complaint alleges:1.Plaintiff brings this action under Sections 1303(c)and 1306(d)of the Childrens Online Privacy Protection Act of 1998(COPPA),15 U.S.C.6501-6

3、506,6502(c)and 6505(d),and Sections 5(a)(I),5(m)(1)(A),13(b),and 16(a)of the Federal Trade Commission Act(FTC Act),15 U.S.C.41-58,45(a)(1),45(m)(1)(A),53(b),and 56(a),to obtain monetary civil penalties,a permanent injunction,and other equitable relief for Defendants violations of the Commissions Chi

4、ldrens Online Privacy Protection Rule(Rule or COPPA Rule),16 C.F.R.Part 312,and Section 5 of the FTC Act.Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 2 of 11JURISDICTION AND VENUE 2.This Court has subject matter jurisdiction pursuant to 28 U.S.C.1331,1337(a),1345,and 1355,and under 15 U.S.C

5、.45(m)(1)(A),53(b),56(a),and 57b.3.Venue is proper in the Northern District of Georgia under 15 U.S.C.53(b)and 28 U.S.C.1391(b)-(c)and 1395(a).DEFINITIONS 4.For purposes of this Complaint,the terms child,collects,collection,Commission delete disclosure Internet online contact,information,operator,pa

6、rent,person,personal information,third party,verifiable consent,and website or online service directed to children,are defined as those terms are defined in Section 312.2 of the Rule,16 C.F.R.312.2.THE CHILDRENS ONLINE PRIVACY PROTECTION RULE 5.Congress enacted COPPA in 1998 to protect the safety an

7、d privacy of children online by prohibiting the unauthorized or unnecessary collection of childrens personal information online by operators of Internet websites or online services.COPPA directed the Federal Trade Commission to promulgate a rule implementing COPPA.The Commission promulgated the Chil

8、drens Online Privacy Protection Rule,16 C.F.R.Part 312,on November 3,1999 under Section 1303(b)of COPPA,15 U.S.C.6502(b),and Section 553 of the Administrative Procedure Act,5 U.S.C.553.The Rule went into effect on April 21,2000.Page 2 of 11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 3 of

9、116.The Rule applies to any operator of a commercial website or online service,or portion thereof,directed to children that collects,uses,and/or discloses personal information from children,and to any operator of a commercial website or online service that has actual knowledge that it collects,uses,

10、and/or discloses personal information from children.Among other things,the Rule requires a subject website operator to meet specific requirements prior to collecting online,using,or disclosing personal information from children,including,but not limited to:a.Posting a privacy policy on its website o

11、r online service providing clear,understandable,and complete notice of its information practices,including what information the website operator collects from children online,how it uses such information,its disclosure practices for such information,and other specific disclosures set forth in the Ru

12、le;b.Providing clear,understandable,and complete notice of its information practices,including specific disclosures,directly to parents when required by the Rule;c.Obtaining verifiable parental consent prior to collecting,using,and/or disclosing personal information from children;d.Giving parents th

13、e option to consent to the collection and internal use of their childrens personal information without consenting to the disclosure of that information to third parties;e.Providing a reasonable means for parents to review the personal information collected from their children and to refuse to permit

14、 its Page 3 of 11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 4 of 11further use or maintenance;f.Not conditioning childrens participation in an activity upon the children disclosing more personal information than is reasonably necessary to participate in that activity;and,g.Establishing a

15、nd maintaining reasonable procedures to protect the confidentiality,security,and integrity of personal information collected from children.7.Pursuant to Section 1303(c)of COPPA,15 U.S.C.6502(c),and Section 18(d)(3)of the FTC Act,15 U.S.C.57a(d)(3),a violation of the Rule constitutes an unfair or dec

16、eptive act or practice in or affecting commerce,in violation of Section 5(a)(1)of the FTC Act,15 U.S.C.45(a)(1).DEFENDANT 8.Defendant Jones O.Godwin is the operator of the child-directed social networking website .At all times material to this Complaint,Defendant has operated .which is transmitted w

17、orldwide on the Internet.At all times material to this Complaint,he formulated,directed,controlled,had the authority to control,or participated in the acts or practices alleged in this Complaint.Defendant Godwin resides in this district and,in connection with the matters alleged herein,transacts or

18、has transacted business in this district.COMMERCE 9.The acts and practices of Defendant alleged in this Complaint have been in or affecting commerce,as commerce is defined in Section 4 of the FTC Act,15 U.S.C.44.Page 4 of 11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 5 of 11DEFENDANTS COU

19、RSE OF CONDUCT 10.Since at least October 2009,Defendant has operated .a social networking website directed to children.Promoting the website as the Facebook and Myspace for kids,Defendant permits children to register,create and update their profiles,create public posts,become friends with other memb

20、ers,play games,watch movies or videos posted by other children,and upload their own pictures and videos.See Exhibit A(Skid-e-kids home page).The Skid-e-kids website specifically courts tweenage children and their parents by promoting the site as the social networking alternative for kids ages 7 to 1

21、4 where parents are in charge.See Exhibit B(About Skid-e-kids page).11.Defendant requires children to register in order to use his website.When a child clicks on the Skid-e-kids registration icon or link displayed on the websites landing page,a standard Skid-e-kids registration window appears.The ch

22、ild must first provide a birth date and gender,then click the Proceed button.Next,the child must provide a username,a password,and an email address.See Exhibit C(registration forms for Skid-e-kids).After these steps are complete,Skid-e-kids automatically registers the child on the website.The child

23、is not asked to provide a parents email address,and Defendant makes no attempt to notify a childs parent or obtain parental consent.12.A child who registers on the Skid-e-kids website is able to create a profile by entering a first and last name,city and country,birth date,and gender,as well as free

24、ly type information in Defendants about me field.See Exhibit Page 5 of 11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 6 of 11D(Skid-e-kids profile page).In addition,a child is able to upload pictures and videos,search for and befriend Skid-e-kids members,and send messages to other members.

25、13.Defendant collects personal information from children through the operation of the Skid-e-kids website.Defendant has collected and maintained personal information from approximately 5,600 children.Defendant,therefore,is an operator as defined in the Rule.DEFENDANTS INFORMATION COLLECTION,USE,AND

26、DISCLOSURE PRACTICES 14.Defendants online privacy policy states in pertinent part:The Skid-e- website requires child users to provide a parents valid email address in order to register on the website.We use this information to send the parent a message that can be used to activate the Skid-e-kids ac

27、count,to notify the parent about our privacy Rractices,to send the.parent communications either about the parents and child s Skid-e-kids accounts or about features of our Web site,and for the other purposes described in this Privacy Policy.This email address is correlated with the account user name

28、.Exhibit E(Skid-e-kids Privacy Policy).15.Contrary to the statements made in Defendants privacy policy,as set forth in Paragraph 14 above,Defendant never asks for a parents e-mail address,and he activates the childs account without notifying the parent or obtaining prior parental consent.As a result

29、,Defendant collects personal information from children and enables them to publicly disclose their personal information,including online contact information,through Defendants personal profile po stings and in his member messaging system.16.Defendants online notice of his information practices:ioes

30、not clearly,Page 6 of 11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 7 of 11completely,or accurately disclose all of Defendants information collection,use,and disclosure practices for children,as required by the Rule.17.Defendant does not take the steps required by the Rule to provide pare

31、nts with a direct notice of his information practices prior to collecting,using,or disclosing childrens personal information.18.Defendant does not take the steps required by the Rule to obtain verifiable consent from parents prior to collecting,using,or disclosing childrens personal information.19.I

32、n approximately 5,600 instances,Defendant has collected,used,and/or disclosed personal information in violation of the Childrens Online Privacy Protection Rule.COUNT I DEFENDANTS VIOLATIONS OF THE CHILDRENS ONLINE PRIVACY PROTECTION RULE 20.Since 2009,Defendant has operated the Skid-e-kids website o

33、r online service through which he has collected and maintained personal information from children under age 13.21.In numerous instances,in connection with the acts and practices described above,Defendant has collected,used,and/or disclosed personal information from children in violation of the Rule

34、by:a.Failing to provide sufficient notice on Defendants website or online service of what information he collects online from children,how he uses such information,his disclosure practices,and all other required content,in violation of Section 312.4(b)of the Rule,16 C.F.R.312.4(b);Page 7 of 11 Case

35、1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 8 of 11b.Failing to provide direct notice to parents of what information Defendant collects online from children,how he uses such information,his disclosure practices,notice of any material change in the collection,use,and/or disclosure practices,and

36、all other required content,in violation of Section 312.4(c)of the Rule,16 C.F.R.312.4(c);and,c.Failing to obtain verifiable parental consent before any collection,use,and/or disclosure of personal information from children,in violation of Section 312.5 of the Rule,16 C.F.R.312.5(a)(l).Therefore,Defe

37、ndant has violated the Childrens Online Privacy Protection Rule,16 C.F.R.Part 312.COUNT II DEFENDANTS VIOLATIONS OF THE FTC ACT 22.Section 5(a)of the FTC Act,15 U.S.C.45(a),prohibits unfair or deceptive acts or practices in or affecting commerce.Misrepresentations constitute deceptive acts or practi

38、ces prohibited by Section 5(a)of the Act.23.,Through the statements made in the privacy policy referenced in Paragraph 14 above,Defendant has represented,expressly or by implication,that he collects a parents online contact information in order to notify the parent of a childs registration,to permit

39、 the parent to activate the childs account,and to notify the parent of Defendants privacy practices.24.In truth and in fact,Defendant has registered children without ever collecting a parents email,sending the parent a notice of their information practices,or providing parents with a means to assent

40、 to their childrens Page 8 of 11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 9 of 11participation.Therefore,the representation set forth in Paragraph 23 was false and misleading.25.Defendants false and misleading representation,as set forth in Paragraph 23 above,constitutes a deceptive act

41、 or practice in violation of Section 5(a)of the FTC Act,15 U.S.C.45(a).THE COURTS POWER TO GRANT RELIEF 26.Defendant violated the Rule as described above with the knowledge required by Section 5(m)(1)(A)of the FTC Act,15 U.S.C.45(m)(1)(A).27.Each collection,use,or disclosure of a childs personal inf

42、ormation in which Defendant violated the Rule in one or more of the ways described above,constitutes a separate violation for which Plaintiff seeks monetary civil penalties.28.Section 5(m)(I)(A)of the FTC Act,15 U.S.C.45(m)(I)(A),as modified by Section 4 of the Federal Civil Penalties Inflation Adju

43、stment Act of 1990,28 U.S.C.2461,and Section 1.98(d)of the FTCs Rules of Practice,16 C.F.R.1.98(d),authorizes this Court to award monetary civil penalties of not more than$16,000 for each such violation of the Rule on or after February 10,2009.29.Under Section 13(b)of the FTC Act,15 U.S.C.53(b),this

44、 Court is authorized to issue a permanent injunction against Defendants violations of the FTC Act,as well as such ancillary relief as may be just and proper.Page 9 of 11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 10 of 11PRAYER WHEREFORE,plaintiff United States of America,pursuant to Sect

45、ions 5(a)(1),5(m)(1)(A),13(b)and 16(a)of the FTC Act,15 U.S.C.45(a)(1),45(m)(1)(A),53(b)and 56(a),and the Courts own equitable powers,requests that the Court;(1)Enter a permanent injunction to prevent future violations of the FTC Act and the COPPA Rule by Defendant;(2)Award Plaintiff monetary civil

46、penalties from Defendant for each violation of the Rule alleged in this Complaint;and(3)Award such other and additional relief as the Court may determine to be just and proper.Page 10 of11 Case 1:11-cv-03846-JOF Document 1 Filed 11/08/11 Page 11 of 11OF COUNSEL:PHYLLIS HURWITZ MARCUS Attorney Federa

47、l Trade Commission 600 Pennsylvania Ave.,NW Mail Drop NJ-3212 Washington,D.C.20580(202)326-2854(voice)(202)326-3259(fax)FOR THE UNITED STATES OF AMERICA:TONY WEST Assistant Attorney General Civil Division U.S.DEPARTMENT OF JUSTICE SALL Y QUILLIAN YATES United States Attorney Northern District of Geo

48、rgia.LENAAM NTI Assistant U.S.Attorney Northern District of Georgia GA Bar.No.666825 600 Richard B.Russell Federal Building 75 Spring Street,S.W.Atlanta,GA 30303-3309 Phone:404-581-6225 Lena.Amantiusdoj.gov MAAME EWUSI-MENSAH FRIMPONG Acting Deputy Assistant Attorney General Civil Division MICHAEL S.BLUME Director Consumer Protection Branch KENNETH L.JOST Deputy Director Cons mer Protection Branch AL Trial ttorney Cons er Protection Branch U.S.Department of Justice PO Box 386 Washington,D.C.20044 Phone:202-307-6154 alan.phelpsusdoj.gov Page 11 of 11