FTC Temporarily Denies ESRB Application For Face Scan Tech

The Federal Trade Commission (FTC) has denied an application from the Entertainment Software Rating Board (ESRB) concerning face-scanning, age-verification tech (developed by the digital identity firm Yoti).

In its response (via PC Gamer), the FTC rejected the application 4-0 after receiving over 350 comments. The rejection is not meant to comment on the merits of the application, rather it is in anticipation that "additional information will be available to assist the Commission and the public in better understanding age verification technologies and the application." Essentially, the FTC is punting on a final decision until more information is available.

In a letter to the ESRB, the FTC noted that Yoti submitted a facial estimation model to the National Institute of Standards and Technology (NIST) and that a report on the tech from the institute is forthcoming. The ESRB previously requested that the application get a 90 day delay to make time for the NIST's report's release. The FTC opted instead to allow the ESRB to refile once the report emerges.

The tech is intended to create a new method for obtaining parental consent under the Children’s Online Privacy Protection Rule (COPPA rule). As the PC Gamer article points out, many major video games companies have paid big bucks for COPPA violations. For example, Epic paid $520 million to settle with the FTC. The ESRB applied for approval back in July 2023. It also claimed then that the technology does not save or share images, rather merely confirm that the photo's subject is over 25.

The ESRB also provided the following statement to PC Gamer:

"The ESRB, Yoti, and Kids Web Services [formerly part of Superawesome, now owned by Epic Games following the Superawesome spinoff in September 2023] filed the application in June 2023, and the Commission twice extended its decision on the application beyond the 120-day period set forth in the COPPA Rule. The Commission’s letter indicates that it believes it would be helpful to be able to review, as part of its decision-making process, a report about facial age estimation models that is anticipated to be released by the National Institute of Standards and Technology (NIST) in April.

"Unfortunately, instead of accommodating our request to stay its decision for another 90 days to give the Commission sufficient time for consideration of the NIST report, the FTC declined the application without prejudice. In light of the FTC’s statements in its recent COPPA Notice of Proposed Rulemaking (and elsewhere) welcoming innovation in VPC methods, we remain hopeful that facial age estimation and other innovative technologies will be considered COPPA-compliant when used to obtain verifiable parental consent in the near future."