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Texas Law Review ; 101(6):1417-1455, 2023.
Article in English | ProQuest Central | ID: covidwho-20243567


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. These necessities are most keenly felt in the EdTech world. As companies in the United States 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 has thus become part of parenting. This piece argues that under the common law tradition of protecting the best interests of the child, when it comes to protecting children's digital privacy, relying solely on parental consent is insufficient and ill-suited. This work compares parental consent forms for children's online activities to 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, most courts 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 interests of the child when faced with a child's physical injury, this piece argues that public policy should have to force to 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 at the federal and state levels to move away from a parental consent apparatus and instead put forward new measures for the protection of children's digital privacy. It further illustrates that, despite COPPA, common law privacy torts are not fully preempted. Adopting the approach proposed in this work will also motivate companies to be more vigilant towards handling minors' data to avoid potential lawsuits. It will further encourage a market for competition between socially responsible companies that would prioritize children's privacy over an endless list of corporate interests.