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Beware of the Virtual Doll: ISPs and the Protection of Personal Data of Minors

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Abstract

Once upon a time, they managed to bring Neverland into the bedrooms; they were seen as the heroes of a new era. However, as heroes always tend to walk a fine line between good and evil, it does not come as a surprise that a decade later the perception has dramatically changed; the fairy tale turned into a nightmare. Are Internet Service Providers (ISPs) no more than data-guzzling monsters that need to be tamed? In November, the European Commission published a “Comprehensive approach on personal data protection in the European Union” which seems to nod approval. The approach seeks to strengthen the individual’s rights regarding the use of data by ISPs. The Commission notes that children deserve specific protection in this context due to the fact that their awareness of risks and consequences is usually underdeveloped. Both a general principle of transparent processing and specific obligations for data controllers regarding the type of information to be provided and the modalities for providing it had to be taken into account. Not only legal but also self-regulatory initiatives should contribute to a better enforcement of data protection rules. This approach is both applauded and heavily criticized by the European Data Protection Supervisor. In particular, he argues that children’s particular interests have not been sufficiently addressed presenting a long list of suggestions for improvement including specific provisions against behavioral advertising, the exclusion of some data categories, an age threshold or special requirements on the issue of informed consent and a reinforcement of data controllers’ accountability. Is there really a need for a new magic formula? This paper reviews the current options for addressing the challenges of the use of personal data of minors by ISPs.

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Notes

  1. Cf. http://www.internetworldstats.com/stats.htm

  2. Ibid.

  3. Google is still among the most frequently used services by children (Nielsen 2009).

  4. As they were obliged to comply with its objective, cf. Art.32: “Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest at the end of a period of three years from the date of its adoption.”

  5. For example, the differences in the interpretation of personal data in the relationship EU–US, the lack of uniformity in interpreting cross-border issues or the fact that there is a weak second level protection (i.e., as soon as a data subject has been tricked into consenting once he literally loses control over his data)

  6. Or the ownership-based interpretation of informational privacy by Luciano Floridi (Floridi 2005)

  7. Which still stirs up a lot of dust cf., e.g., the discussion on a right to forget (Goméz 2011; Nagel and Weimann 2011)

  8. Cf., e.g., the strong tendency of employers to browse social networks for additional information on applicants

  9. Cf., however, in this respect, the research on nonintrusive technological developments to identify minors online which might even overcome the vicious circle of specific data protection without prior data collection in the near future (such privacy enhancing technologies have been and still are the focus of research of various projects, e.g., the Privacy and Identity Management for Europe project PRIME)

  10. Cf., e.g., the fate of the Child Online Protection Act (1998) in the US which was finally “declared” unconstitutional on the basis of these very issues as the Supreme Court refused to hear the US Government’s last appeal against respective lower court rulings in 2009

  11. Such as, e.g., the automatic full selection of all protective “privacy options” within social networks if the birth date indicates that the user is not an adult; in addition, current schemes as, e.g., the Google Family Safety Center which enables users to have pages filtered, could be extended to include data collection-sensitive filters

  12. For example, if the user shows a high interest in certain online games or videos that are usually accessed by children

  13. For example, from a pedagogic perspective: Should children be addressees and recipients of digital communication at all, and if so, to which extent?

  14. Cf., e.g., the pilot scheme “schoolbook” which is about to start at some German schools and mirrors internet services (such as social networks) on a closed platform where it is possible for teachers and pupils to interact and for the “internet” to forget

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Nagel, D. Beware of the Virtual Doll: ISPs and the Protection of Personal Data of Minors. Philos. Technol. 24, 411–418 (2011). https://doi.org/10.1007/s13347-011-0034-7

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