New Jersey Attorney General Settles Second COPPA Case

On Friday, November 22, 2013, the New Jersey Attorney General’s office announced that it settled alleged violations of the Children’s Online Privacy Protection Act (COPPA) with app developer, Dokogeo, Inc. This is the second such COPPA parens patriae action by the New Jersey Attorney General. Dokogeo, a San Francisco–based app developer, makes Dokobots, a geolocation app that leads users on a scavenger hunt through which they gather photos and notes from people they meet. The Attorney General argued that the app and its associated website violated COPPA, the Federal Trade Commission’s (FTC) amended COPPA Rule, which became effective in July 2013, and New Jersey’s Consumer Fraud CFA (CFA) by failing to age-screen visitors and obtain verifiable parental consent to collect personal information from children under 13.

Dokogeo claimed the app is not directed at children under the age of 13, and so does not violate COPPA or related laws. The Attorney General argued that the app was aimed at children and adults, pointing to animated cartoon characters and a storyline where users collect photos and location information to guide the “DokoStar Exploratory Fleet Mothership” to safety. The complaint noted that the app is rated 4+ in the app store. The Attorney General also argued that there was no written notice on the app stating that it is only intended for use by users older than 13.

In the settlement, Dokogeo agreed to clearly display a privacy policy on its website and apps, describing what personal information the company collects, how such information is used, and whether it is provided to third parties. The company must also use tools to verify that users are over 13 years old. A $25,000 fine is attached to the settlement, but the Attorney General agreed to suspend and vacate it after 10 years if the company complies with the settlement terms, COPPA, and New Jersey’s CFA.

A general audience site or app is not, under the FTC’s COPPA Rule, deemed directed to children, but the New Jersey Attorney General insisted that the Dokobots app was directed to both children and adults. The final COPPA Rule creates a category of sites that are “secondarily” targeted to children under 13, but the settlement agreement does not discuss whether this was part of the analysis. A large number of online games and apps featuring animated characters form a large portion of available apps, and many apps are rated 4+ to illustrate the wide appeal. The prospect of both FTC scrutiny and enforcement by state attorneys general underscores the need for app developers to document the intended target audience, make business decisions about whether age-screening should be built into the app, and assure that they offer a well-designed and clear privacy policy.

For more information about privacy and data security, contact Sheila A. Millar at millar@khlaw.com or by phone at 202 434-4143 or Tracy P. Marshall at marshall@khlaw.com or by phone at 202 434-4234.