Access of Evil? Legislating Online Youth Privacy in the Information Age

Abstract

The particular developmental challenges of youth make them vulnerable to privacy invasions online that capitalize on their credulity and commoditize their personal information in ways that are not always readily apparent and with potential consequences that are still less understood. The current legal regime in which private organizations collect, use, and disclose the personal information of Canadian youth for commercial purposes has advantages and disadvantages. However, proposals for reform have so far myopically focused on tinkering with the existing consent-based model of informational privacy, which ignores youth’s own changing expectations of privacy. This suggests that in seeking to “protect” youth’s privacy online, legislators have disempowered children and their parents from determining what information practices are acceptable for them. The law should instead respect these choices, while providing families with the tools necessary to exercise them.

This article seeks to address what constitutes youth online privacy, how youth conceive of their privacy, whether their privacy needs protecting, and, if so, how youth privacy should be regulated online. First, the article begins by rooting the issue of online youth privacy in the current social, technological, economic, political, and legal context, drawing on social science research to demonstrate both the threats and opportunities created by technology for youth privacy. Second, the analysis focuses on the relative strengths and weaknesses of current federal legislation as the primary law governing the collection, use, and disclosure of youth’s personal information through their online activities, including their use of social networks and mobile applications or “apps.” It is worth noting that Canadian jurisprudence on youth privacy online is underdeveloped by virtue of the fact that the Office of the Privacy Commissioner of Canada (OPC) generally diverts such grievances from the judicial system. Even then, the Privacy Commissioner has so far only conducted one investigation into a website that specifically targets youth. Accordingly, the Commissioner’s report into the complaint against Nexopia.com, a Canadian-made social network, figures prominently in this analysis. It serves as a case study of how federal privacy legislation is applied in practice, and an example by which the effectiveness of the existing regime may be evaluated.

Third, after canvassing the shortcomings of the current legal regime, I consider proposals for reform and assess their merits. This analysis draws on the legislative experience of the United States, both as a possible model for reform and as a cautionary tale. Given that many of the world’s most popular websites among youth originate in the US, that country’s Congress has arguably had a greater influence on the information practices and privacy policies affecting Canadian youth than any other. Finally, I offer an alternative legal solution to give more meaningful expression to youth privacy rights, while avoiding the paradigmatic trap of most existing proposals.

Keywords: PIPEDA, Personal Information Protection and Electronic Documents Act, law, privacy, youth, online, COPPA, mature minor, social media, Nexopia, Snapchat, MySpace, Facebook

JEL Classification: K19, K20, K29, K39