Below is the abstract for “Children’s Digital Privacy and the Case Against Parental Consent,” available for download on SSRN.

Children’s engagement with the internet has exploded. From education to social media, companies have offered products and services that –far from being mere distractions for children — have increasingly become necessities. This necessity is most keenly felt in the EdTech world. As companies rely on the verifiable parental consent required by the Children’s Online Privacy Protection Act (“COPPA”) to collect and use minors’ data, reviewing boilerplate waivers of liability and consent forms for children’s online activities have thus become part of parenting. This article argues that under the common law tradition of protecting the best interest of the child, when it comes to protecting children’s digital privacy, relying solely on parental consent is insufficient and ill-suited.

This article compares parental consent forms for children’s online activities to the effectiveness of parental waivers for tort liability for physical injuries suffered by children. In the latter, courts have not reached a consensus on whether such contracts are enforceable or altogether void. However, a majority have struck down such waivers as against public policy in commercial settings. By relying on courts’ decisions regarding the role of parents in protecting the best interest of the child when faced with a child’s physical injury, this article argues that public policy should ultimately override parental consent as it pertains to the protection of a minor’s digital privacy and their use of EdTech tools. It thus encourages lawmakers on federal and state level to move away from parental consent apparatus and put forward new measures for protection of children’s digital privacy.

This article further illustrates that despite COPPA, common law privacy torts stand a chance in courts and are not fully preempted. Adopting the approach proposed in this article will also motivate companies to be more vigilant towards handling minors’ data to avoid potential future lawsuits. It will encourage a market for competition between socially responsible companies who would prioritize children’s privacy over an endless list of corporate interests.

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Zahra Takhshid

University of Denver Sturm College of Law

Zahra Takhshid joined the University of Denver Sturm College of Law as an Assistant Professor in July 2021. Before joining DU, she was the Lewis Fellow for Law Teaching and Lecturer on Law at Harvard Law School where she taught “Common Law and Privacy Torts.” She teaches and writes about torts, contracts, privacy, social media, technology and the law. Part of her scholarship explores how to use tools from torts and contracts in resolving challenges with emerging technological developments. A second strand of her interest is Islamic and comparative law.

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