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COPPA's here and it's going
to change YouTube forever.
Is your channel going to be affected?
Or is it going to affect
a channel that you love?
And if it is, what can be done about it?
This is a complicated area of the law
and some of the bad news is true,
but I also haven't seen
any one commentator
get things 100% right.
In some respects we don't have
some of the answers that we need
for creators or viewers of YouTube.
But the bottom line is that YouTube
is going to change forever.
(dramatic trumpet music)
Hey, Legal Eagles,
it's time to think like a lawyer,
because COPPA is complicated.
In this particular situation,
with the intersection
of COPPA and YouTube,
deals with federal law,
regulatory rulemaking,
federal lawsuits,
settlements between YouTube and the FTC,
and YouTube's internal policies.
And creators are right in
the middle of everything.
But today we're going
to discuss everything
that you need to know about COPPA
and how we found ourselves
in this situation.
This'll probably be a longer video,
because we're gonna look at
the actual language of the law.
I haven't seen really
anyone take a deep dive
into the relevant
language that's at issue,
because it's really, really complicated,
and it's really important.
Some of these things you can't dumb down,
because the effects are so dire.
We're going to talk about if
COPPA applies to your channel,
or if it applies to channels
that you love to watch.
And if COPPA does apply,
we're gonna talk about
what creators can and
should do as a result.
We're gonna talk about why you should care
whether you have a YouTube channel or not,
and we're gonna talk
about what everyone can do
whether you are a channel operator
or just a viewer of YouTube to deal with
some the more onerous
regulations of COPPA,
and what we can do to make sure that
it is more narrowly tailored to the needs
of channel creators and
the audience on YouTube.
So first, what is COPPA?
COPPA is the Children's
Online Privacy Protection Act.
It was passed in 1998 under
the Clinton administration
and became effective in April of 2000.
The Federal Trade Commission
is the regulatory body
that is in charge of
actually enforcing COPPA.
Now the purpose of COPPA was
and is to protect children
from strangers and being
unfairly targeted by advertisers.
It's to prevent kids from
posting their information
like their address, phone number,
and social security online
without parental consent.
So why does COPPA exist?
COPPA was created to put
parents back in control
of kids providing information online.
It was enacted into law
after the FTC issued
a report called "The KidsCom Letter",
where the FTC had
investigated a now defunct
website called, KidsCom,
from the late '90s
aimed at children which required users
to provide a litany of
personal information
including name, date of birth, location,
email address, home address,
and products and activity preferences.
Many parents complained about this kind of
children's privacy violation,
and the FTC at the time
didn't feel like it had
the tools necessary to
prevent this kind of
predatory practice against children.
When Congress was considering COPPA,
the FTC Commissioner at
the time, Robert Pitofsky,
testified to the quote,
"Particular vulnerability
"of children in the immediacy and ease
"with which information can
be collected from them."
COPPA passed the House 333 to 95.
And it passed the Senate 65 to 29,
and was signed into law by
President Clinton in 1998.
The FTC has enforced penalties
from violations of COPPA
at least 30 times ranging
from companies like
GeoCities, Lisa Frank,
Sony, Yelp and many others.
But let's first start with
the actual language of COPPA.
You can find the statute
at 15 USC section 6502
that's the section titled,
Regulation of unfair
and deceptive acts and
practices in connection
with collection and use
of personal information
from and about children on the Internet.
Specifically looking at
Subsection (a)(2) Acts Prohibited,
in general, it is unlawful
for an operator of a website
or online service directed to children
or any operator that has actual knowledge
that it is collecting personal
information from a child
to collect personal
information from a child
in a manner that violates the regulations
prescribed under subsection (b).
So in general, what this statute is saying
is that any operator of an online website
or service that is targeted to children
cannot collect personal information
from a child without parental consent.
It's also important to note that a child
is defined by the statute as someone
who is under the age of 13,
so 12 years old and younger.
Now in section 6501 COPPA defines
the term, personal information
and defines it to mean individually
identifiable information
about an individual collected online
including the first and last name,
a home or other physical address
including street name,
name of the city or town,
an email address, a telephone number,
a Social Security number, and importantly,
any other identifier that
the commission determines
permits the physical or online contacting
of a specific individual.
Now you probably listened
to that statutory definition
and thought, "Okay, this all seems fine.
"Parents don't want their
children to be contacted
"by people online,
strangers or advertisers,
"and they certainly don't
want their children's
"Social Security numbers
publicized online."
But how does this relate to YouTube?
It's not like YouTube or
creators are out there
asking for anyone's Social Security number
or their addresses,
let alone the addresses
and Social Security numbers of children.
Well, the thing that
you need to understand
about American administrative agencies,
including the FTC in this particular case,
is that they have what's
called rulemaking authority
under the Administrative Procedure Act.
When Congress passes a law,
they have neither the
time nor the inclination
to cover absolutely every eventuality
that could possibly happen.
So they empower federal
agencies to create rules
that are under the
auspices of the general law
that has been passed and doesn't obviously
contradict that law, but is sort of
a minor expansion of
that law to cover things
that Congress might not have
been able to contemplate
at the time that the statute was passed.
And here, the statute
specifically endows the FTC
with the authority to
expand the definition
of personal information
to include other things
that the FTC believes that allows a child
to be contacted either
physically or online.
And there's several terms
that I mentioned just now
in those definitions that
have big implications
based on the definition
that the FTC has adopted.
Now what I read to you previously,
that is the actual COPPA
statute as passed by Congress.
But the rules of the FTC
has promulgated over time
are found in what's called the
Code of Federal Regulations,
the CFR for short.
And the FTC promulgated new
rules about COPPA in 2013
in ways that had a drastic effect
on how COPPA interacts with YouTube.
2013 is when everything changed.
So let's look at the rules
that the FTC promulgated.
Specifically, at 16 CFR 312.2,
we find the definition
of the term operator.
"Operator means any person
who operates a website
"located on the Internet
or an online service
"and who collects or
maintains personal information
"from or about the users of
or visitors to such website
"or online service or on
whose behalf such information
"is collected or maintained."
Now that's important.
The FTC in 2013 expanded
the definition of operator
to include those on whose behalf
such personal information
of children was collected,
and that's why COPPA now applies to
YouTube creators and YouTube channels,
because it's on their
behalf that YouTube collects
that personal information.
Now in the same section we find
a definition of personal information.
Now this definition largely
tracks the definition
that's found in the
statutory language of COPPA,
including the address, telephone number,
and Social Security number of children.
But what was new in 2013
was this new definition
of a persistent identifier that
did not exist prior to 2013.
That is one of the most important rules
that the FTC promulgated in 2013.
A persistent identifier
is something that allows
a website or service to track
individual users over time.
Generally, this is found
in the form of a cookie.
It's a file that is
placed on your computer
and watches your activity over time.
It's the way that a
website is able to deliver
personalized content to individual users
whether that's in the form of a video
that you want to see based on
your prior history of videos,
or a specific ad based
on products and services
that you were looking at earlier before.
In the context of YouTube,
both of those things are true.
It's the way that YouTube
tracks your viewing habits
in order to give you a
video that you want to see
based on your prior viewing history.
And it's the way that YouTube
is able to get creators paid,
because they are delivering targeted ads
to that particular audience.
As a result, the ad rates
that creators receive
is significantly higher than
if the ads were contextualized.
A contextualized ad is sort
of the opposite of that.
It's based on the substance of the video
as opposed to the prior
behavior of the audience.
So when kids are watching
Saturday morning cartoons
and you see a cartoon for G.I. Joe
placed in the middle of a
G.I. Joe television show,
well, that's a contextualized ad.
Some people hate targeted ads
and being tracked online using cookies.
They see it as a violation
of their right to privacy,
and other people really enjoy them
because they see content in
the form of advertisements
that apply specifically to them,
and thus, it's a win-win for both
the advertiser and the viewer.
But the bottom line is that YouTube can't
really function without
persistent identifiers.
The algorithm, the
YouTube algorithm itself,
would not exist if not for the invention
of persistent identifiers.
It allows YouTube to
show content to people
that they want to see
because of an algorithm
that is based on their prior behavior.
Without persistent identifiers,
the YouTube algorithm doesn't work
and YouTube as a platform
probably doesn't exist.
In 2013 the FTC changed the rules so that
YouTube could no longer
use persistent identifiers
with respect to children.
Remember, anyone under the age of 13,
persistent identifiers
are totally off the table.
And in theory that shouldn't affect
the user experience of adults.
But we'll talk about in a few minutes
how that theory doesn't really
meet practice unfortunately,
and it does affect adults.
Now before we leave section 312.2,
let's talk about how COPPA is triggered.
There are two ways to trigger COPPA.
One is that you create content
that is child-directed,
or two, you have actual knowledge
that children are using your
online service or website.
So let's talk about the first requirement
that something is child-directed.
This section states that a
website or online service
directed to children
means a commercial website
or online service or portion thereof
that is targeted to children.
In determining whether a
website or online service
or a portion thereof is
directed to children,
the commission will
consider its subject matter,
visual content, use of
animated characters,
or child-oriented
activities and incentives,
music or other audio content,
age of models, presence
of child celebrities
or celebrities who appeal to children,
language or other characteristics
of the website or online service,
as well as whether advertising, promoting,
or appearing on the
website or online service
is directed to children.
The commission will also consider
competent and reliable empirical evidence
regarding audience composition
and evidence regarding
the intended audience.
The 10-factor analysis is
purposefully written vaguely.
That vagueness provides flexibility.
Unfortunately, it also
provides uncertainty.
But the important thing to remember
is that it's not a checklist.
You can't simply say that okay you have
checked off factors one through four,
but not factors five through 10,
and as a result it's not child-directed.
You have to weigh them.
So the good news is that is,
say for example, you
have a animation channel,
just because it mentions
animated characters
that doesn't mean you are per
se a child-directed channel.
And it's also conceivable
that you might meet
all of the factors in
this test except for,
let's say, the first factor talking about
the subject matter of
the particular video.
And it's possible that the
subject matter is so adult
that it counteracts meeting
all of the other factors
or having an example of
some of those factors.
So conceivably, there
could be a video out there
that is adult-themed but happens to check
all of the other boxes like
there is a child celebrity there
or there is childish music and
there's animated characters.
But the fact that it is so adult-oriented
counteracts all of the other factors.
So that's the point of
having the flexibility
of this 10-factor test is that
you have to weigh each one
with the other factors.
And just because you
meet some of the factors,
it doesn't mean that you
are automatically shunted
into the child-directed category.
You have to holistically weigh all
of them against each other.
So in terms of child-directed,
it's intended to be a proxy
for the intent of the author.
Does the author intend this material,
this online service or videos,
for children, people under the age of 13.
Of course, the FTC would
have a really hard time
trying to figure out the
intent of the author,
so they created these 10 or so factors
that are objective in nature.
You can look to the website
or the video itself,
and you can run through these factors
and actually get an idea
for whether these factors
are present or they're missing.
So these 10 factors are
what would allow the FTC
to make a judgment call as to whether
a particular YouTube channel is in fact
child-directed or not.
Now the other way for
COPPA to be triggered
if you are a content creator is
if you have actual knowledge that children
are using your website
or watching your videos.
This section states that,
"A website or online service
"shall be deemed directed to children
"when it has actual knowledge
that it is collecting
"personal information directly from users
"of another website or online
service directed to children."
So for example, if someone
left a comment on your video
that says, "I am a 10-year-old child,"
and you read that comment,
you might have actual knowledge
that children are watching your content.
Of course, YouTube would probably ban
that person immediately because they then
have also actual knowledge that a child
is using their website
and YouTube is directed
for only people above the age of 13.
But still, that is one way
to get actual knowledge
that children are using your site
or watching your videos.
And importantly, handing off your iPad
from an adult to a child does not qualify
as verified consent.
Now that brings us to the so-called
mixed audience exception.
What if you are major league baseball
and you know that adults
watch your videos,
but they also know that
children watch those videos too.
The fact that one child
might be watching a video,
does that mean that suddenly
your video is child-directed?
Well maybe, maybe not.
Under this section, "A
website or online service
"that is directed to
children under the criteria
"set forth in paragraph (1),"
which we already talked about,
"but that does not target
children as its primary audience
"shall not be deemed to be
directed to children if,"
one, "it does not collect
personal information
"from any visitor prior to
collecting age information,"
and two, "Prevents the collection,
"use or disclosure of personal information
"from visitors who identify
themselves as under age 13
"without first complying with the notice
"and parental consent
provisions of this part."
So the mixed audience
exception is not as simple
as saying that the intended
audience of this video
is not primarily children.
It's that, but you also
have to prove that you are
no longer using persistent
identifiers of children
and that you are getting age information
before allowing people
to view that content.
And because of the way
that YouTube is set up,
it is not clear that
any particular YouTuber
can avail themselves of this exception.
On the other hand, the
argument can be made
that because individual creators
are not using persistent identifiers
and they rely on the
general YouTube platform,
which is itself age-gated in that
you can't create a YouTube account
without verifying that you
are over the age of 12,
that perhaps individual
creators can avail themselves
of the mixed audience exception
that they know whether
their intended audience
is primarily children or not,
which meets the first level criteria
of the mixed audience exception.
And given the way that the
YouTube system is set up
that is now exquisitely
segregating between
child audiences and non-child audiences,
that maybe the mixed audience
exception does apply.
And if that is the case,
it does make sense that
there isn't sort of a third option
when you're uploading a video,
because instead of having three options
between child-directed, not
child-directed, and mixed,
remember the mixed audience exception
is an exception to child-directed.
So if the mixed audience
exception applies,
you would simply check the
box when you're uploading
a video that says not child-directed,
because mixed audience is an exception
to the child-directed standard.
But that's something that
requires clarification
from the FTC and YouTube.
Now we'll talk about the
mixed audience exception
at length in just a moment,
but suffice to say, it's not the savior
that some people think it is.
So given that, in a second
I'm gonna talk about
whether your particular channel
or your particular video
qualifies as directed to children,
or whether the mixed audience exception
may apply in your particular case.
But before we get there while
we're still talking about
the more technical aspects of it,
I wanna talk about the
repercussions of what happens
if your content is considered
directed at children.
Well, we've already
talked about how YouTube
cannot use persistent identifiers,
cookies or IP addresses,
to track children.
So when a video is considered
directed at children,
YouTube has to effectively
shut off the algorithmic.
It can't recommend that video,
and it also can't use targeted ads
for that particular video,
because that would be targeting the user.
It's not clear exactly how less profitable
contextualized ads compared
to targeted ads are,
but by all accounts, conceptualized ads
probably bring 1/10 of the
ad revenue of a targeted ad.
So that means that people
who create kid's content
might see their AdSense fall
to 1/10 of the current levels.
But it also means that YouTube
has to effectively shut off
any conduit for personalized information
from being created on the video.
That means that YouTube has to shut off
all the comments on the video.
That video can have no
info cards or end screens,
no recommendations, no notifications,
no use of the community
tab, and no stories
on YouTube for that particular channel
if the whole channel is considered
a kids-directed channel.
Remember, so much of
what makes YouTube work
is the persistent
identifiers in conjunction
with the YouTube algorithm,
and that's simply off-limits for both
children as an audience and content
that is considered directed at children.
Now YouTube has taken the position that
when a piece of content is
labeled as child-directed,
YouTube will assume that the
entire audience is children,
regardless of whether
they have verified that
one of those people could be an adult.
They will turn off all the comments.
They'll turn off notifications,
and you can't use persistent identifiers
or benefit from the YouTube algorithm.
Now theoretically, you can
use all of this information,
you just need to have parental consent.
Unfortunately, the parental
consent provisions in COPPA
are incredibly onerous
and are very unlikely
to actually be used in real life.
So let's talk about the big question.
How do you know if your
particular video or channel
is considered directed at children?
Well, we've already talked
about the 10 factors
that the FTC considers.
The consent order that YouTube had to sign
as a settlement of the
FTC complaint against it
has a modified version of the 10 factors
that you find in the CFR,
specifically, subject
matter, visual content,
use of animated characters, music,
age of models, presence
of child celebrities,
celebrities who appeal the children,
language and other characteristics,
advertising, promoting the website,
and competent and reliable
empirical evidence regarding.
So those are the 10 factors that creators
are going to have to use to
analyze their particular content
to determine if their
content is considered
child-directed or not.
Remember, those factors
are supposed to be a proxy
for the intent of the creator.
But because the factors
are relatively objective,
effectively the FTC could disagree
even if you had a bona fide true belief
that your content was
not directed at children,
the FTC could use those 10 factors
to disagree with your own intent
and to find that your content
is in fact child-directed.
But because these are 10 factors,
that means that there is going to
have to be some kind of balancing.
When there is a factor-based test,
you know that all of
these different elements
are going to come into consideration.
Odds are they're not
gonna after some creator
with a small number of subscribers
and something that's a close call.
But still theoretically,
the FTC could do that.
Now sometimes factors are
more important than others,
and we have no guidance from the FTC
as to which particular factors
they may weigh heavier than other ones.
But we can be sure that
probably none of these factors
acts as a per se
indication that any content
is directed at children.
For example, I've been
hearing a lot of creators
who have animated channels being worried
that because their channel is animated
that they are necessarily going to be
considered child-directed.
I don't think that's accurate.
Even though animation is a
factor in these 10 factors,
you would have to weigh the
fact that a channel is animated
with the fact that they're dealing
with adult subject matter,
and you'd have to weigh that against
all of the other 10 different factors.
So for example, Odd1sOut often does
very adult themes on their channel
despite being considered animated.
I probably would not consider that channel
to be child-directed.
That's just my own opinion.
Reasonable minds may differ.
But the bottom line is
that these are factors
and they have to be weighed.
It's likely that none of these
are going to be dispositive,
so I wouldn't necessarily worry that
if your channel uses music, for example,
or your channel happens to
have some animation in it
that per se you have a
child-directed video.
But it's problematic
because we have no guidance
from the FTC as to how we are supposed
to weigh these different factors
and if something is more
important than the others.
It's also problematic
because often creators
don't know the audience that they have.
YouTube often doesn't provide
some of these statistics,
including, for example, people who are
under 13 years of age.
And even if you did know
the make up of your audience
right down to exactly how many children
versus 18 versus 30-year-olds
were watching your content,
the FTC but also has
purposefully never created
a bright line rule with
respect to how many children
tips the balance into making
your channel child-directed.
The 10th factor appears to
look at the empirical evidence
of who's watching your channel.
But let's say your channel has one child,
does that tip the balance?
Does that make your video child-directed?
If you had 25% of your audience,
is that child-directed?
50%, 75%?
In some ways it's good that we don't have
this bright line rule because
it allows for flexibility.
But at the same time that flexibility
also creates uncertainty as well.
So in a second I'm going to talk about
the mixed audience
exception in great detail,
and I'm gonna talk about
what creators might do
if they make child-directed content
or they have a channel that is followed
both by adults and
children at the same time.
The FTC says that
individual YouTube creators
are responsible for knowing
whether their content
is child-directed or not.
And it is the responsibility
of individual creators
to make that designation on their videos
and on their channel at large.
Theoretically, if a
creator gets that wrong
and they label something
that is child-directed
as not child-directed, then
they could be fined by the FTC.
Now practically speaking,
the FTC doesn't have all that many funds.
They have only enforced COPPA
a handful of times over the years.
But still, the fact remains
that they can go out
and sue individual creators
and they've have said as much
that they intend to do so.
The FTC loves to talk
about clear-cut examples
when you push them.
They give the example of Peppa Pig
of something that is so
clearly child-directed
that it's obvious that you should label it
as child-directed.
And then conversely, they would talk about
something that is not made for children
like Call of Duty or streaming
scenes from Call of Duty,
and that's fine, that's just as well,
but the world is rife with examples
that fall somewhere in the middle.
And there's never been a
particularly clear-cut line
of what to do with those kind of examples.
Consider PewDiePie or MatPat who have
probably audience it is
the majority of adults
if not at least people over the age of 12.
But still, odds are that part
of that audience is children.
They can't point to any
particular audience member
being a child probably,
but when you have 100 million subscribers,
odds are there's conservatively
millions of children
who are in your audience,
and not to mention sports
examples like baseball or WWE
where the main intended
audience is probably adults,
but it is well known that children
love to watch sports as well.
And even some of the FTC's clear examples
aren't particularly that clear.
Think about Pokemon, for example.
That is clearly a
child-directed video game
or at least it was when it started.
But now there is an entire
generation of people
who grew up playing
Pokemon and still play it
for nostalgia reasons and
also because they enjoyed
playing the video game itself writ large.
Is Pokemon live streaming
for adults or for children?
To understand what creators should do,
we first have to
understand how we got here.
And specifically we have to understand
how YouTube has responded
to the FTC complaint
and the $170 million fine
that was levied against them.
At base in 2018 a complaint
was filed before the FTC
by 23 different advocacy groups
for children, privacy, and consumers.
The complaint alleged years
long violations of COPPA
and millions of dollars in revenue
resulting from the collection
and use of personal data from children.
It also alleged that YouTube is the most
popular online platform for children
and 80% of U.S. children
use the site daily
and that it will soon surpass
traditional television
as the most watched video
format for children.
YouTube countered that YouTube main
has always been for
people 13 years and older
and that they created
YouTube Kids specifically
as a sandbox for children
under the age of 13.
The FTC has always claimed that that's
completely inadequate however
because children can
simply lie and claim that
they're older than 13 years old,
as we know many children do
and get access to YouTube main.
And when a child lies, YouTube then uses
persistent identifiers for children.
It may not be YouTube's fault,
but they are using persistent identifiers
for children that are
lying about their age.
And on top of that, YouTube,
in their marketing materials,
was actually bragging to
all kinds of advertisers
that they knew that lots
and lots of children
were using YouTube main.
So the FTC argued that
YouTube had actual knowledge
that children were using the site.
And in fact, they were touting that
as an advantage to advertisers.
So after litigation and negotiations,
YouTube entered into a stipulated
settlement with the FTC.
Google agreed to pay a historically
large $170 million fine,
a fine that is 10 times larger than all
of the previous COPPA fines combined.
The settlement or consent decree
requires YouTube to develop a system
that allows channel owners to identify
their child-oriented content.
YouTube must also notify channel owners
that their content is
subject to COPPA compliance.
It must also provide annual training
to its employees who interact
with YouTube channel owners.
YouTube must also provide data to the FTC
about their data collection practices
and obtain verifiable parental consent
before collecting personal
data from children.
Channel owners also are
required to do number of things
under the consent decree
including they must make
a clear and conspicuous disclosure
that the channel or content
is directed at children.
On September 4th, YouTube
issued a blog post
indicating that it intended
to comply with the FTC order
by assuming that all viewers
of child-oriented videos
are children rather
than trying to identify
individual viewers and
determining their age.
Effectively, because the FTC says that
if you can't trust the
general 13-plus age gate
or swing gate to access YouTube main,
then YouTube would have to do that.
And as we talked about previously,
YouTube is going to
remove personalized ads
and features like
comments and notifications
from content that is considered
directed at children.
And on top of that,
YouTube is going to try
to develop a machine learning system
that will be able to determine
what content is considered child-directed
despite the certifications
of the individual creators.
Now as I said, there are two big issues
that are going to have
drastic repercussions
for content creators as a result of both
the FTC prosecution and
the way that YouTube
is deciding to implement
solutions to the FTC complaint.
Now the first is that the
FTC is not allowing YouTube
to have a sort of generalized age gate.
YouTube main is for people
that are over 13 years old.
Effectively, if the FTC
is punishing YouTube
for children lying about their age
and preventing YouTube from using
a general age gate in that respect,
that has huge repercussions
for all creators.
Effectively, then the default is to assume
that anyone who uses YouTube is a child
unless you have verified
that they are an adult.
That puts huge barriers on all
creators and YouTube itself
if the FTC's position
is that you can't trust
the certification of
the user when they say
they're over the age of 13.
That could mean that the default position
is that COPPA applies to anything.
Imagine if adults had to certify
and show their driver's license to prove
that they're over the age of 13
to be able to access YouTube main.
The overzealous application of
COPPA puts burdens on adults
and actually starts running
into some constitutional issues
that we'll talk about in second.
But admittedly, these
are not easy questions.
What about accounts that aren't signed in?
Who do we assume they are?
What about shared devices
between adults and children?
What about parents who actively give
their iPad to a child to watch?
And that brings me to the second problem,
which I think is a response to the first,
and that is that YouTube in
response to the FTC demands
is saying that any content that is
considered child-directed in any way,
it loses access to the algorithm,
to persistent identifiers,
to targeted ads, to comments,
notifications, stories.
All of that is gone.
But what about the use
case of say an adult
that comments on the video that is quote,
"directed at children"?
Now certainly, we can't have children
commenting on videos under COPPA.
And we can't have children being tracked
using persistent identifiers.
But you might imagine
that that is trackable
on the individual level.
If we know that a user is a child,
then we can just simply turn off
those features for the child,
but lemme give you an example.
Imagine there's a family vlog,
and the parents are
watching this family vlog.
Well, the parents might
want to make comments
on the family vlog and make
comments with other parents.
Or you might be watching baseball,
and we know that children like
watching baseball as well,
and adults might want to make comments
about the baseball game.
Unfortunately, if YouTube determines
that any content is
considered child-directed,
all of those features are turned off
regardless of whether that
person is an adult or not.
So even though COPPA is
directed only at children,
adults are being affected.
If the content is
considered child-directed,
YouTube is taking the blanket position
that adults are going to be
treated like children as well.
That's certainly the safe
position for YouTube,
may be the overly cautious position.
But from where I stand, that's a huge loss
to many communities and many adults.
Of course, it's easy for me to say that.
I'm not the one that
was fined $170 million,
and I don't run a child-directed channel.
So with that background, let's talk about
the question that's on everyone's mind.
What happens to your channel if you think
that your audience is in
whole or in part children,
or you think that your content
may qualify as child-directed?
Well, what happens to
your channel depends on
what kind of channel you have.
There are three different buckets
that we need to talk about.
One is a creator who directs content
to kids under the age of 13.
One is a creator who
directs content to both.
And third is the creator who never directs
any content to children and has a very,
very small number of children
who watch their content.
So if you make child-directed content,
and for the sake of argument,
let's assume that that means more than
51% of your audience is children,
or whether you are specifically
targeting that demographic,
though, those are not the actual standards
that the FTC may or may not adopt.
As we've talked about, YouTube effectively
has to shut off the algorithm.
That means no targeted ads.
At best you're going to be
dealing with contextualized ads.
It means no comments.
It means no info cards or end screens,
no recommendations, notifications.
You can't use a community tab,
can't use stories.
And if the FTC disagrees
with your designation,
you could theoretically be fined
$42,530 for each violation.
That being said, the FTC doesn't have
all that many funds to go
after violations of COPPA.
They've only enforced it a
handful of times over the years,
and we've never seen any
YouTube creators so far
been prosecuted though the
FTC has specifically said
that they could go after YouTube creators.
YouTube has said it's
going to invest heavily
in YouTube Kids, but it remains to be seen
what kind of improvements
are going to be made to that
and how they're going to make
up for the lost ad revenue
from the lack of personalized ads.
So we can think about
whether your video falls
into the category of child-directed
as sort of a flowchart.
You might ask yourself three questions
to determine if your
content is child-directed.
The first is, did you intend
your content for children?
The second is, do you
have actual knowledge
of children watching
your content or channel?
And the third is, do you
think that your content
falls into the category of child-directed
based on a balancing of the 10 factors
as laid out in the statute?
If you answered, yes, to
any of those questions,
then your content is
considered child-directed.
However, even if your content
is considered child-directed,
you can get out of that category
if the mixed audience exception applies,
which means that number
one, the primary audience
that you are directing your
content is not children,
and you meet the
requirements for subsections
one and two of the mixed
audience exception.
And as I talked about
earlier, it's an open question
if any creator can meet
those requirements.
So that takes us to a creator
who has a mixed audience.
Now remember there are
two different things
that we need to talk about here.
Number one is just because
a channel has an audience
that has some component of children in it
doesn't necessarily mean that
the channel itself is child-directed.
So remember, in the first instance
you have to go through
that 10-factor analysis
to determine if the FTC would consider
your content to be child-directed,
or also COPPA can be triggered
if you have actual knowledge
that kids are watching your
content or using your services.
So if you run through
that 10-factor analysis
and you say, "Okay, factor number one.
"This is an adult subject matter.
"I don't have any child celebrities.
"I don't have music that would
be attractive to children,"
and you determine that your content is not
child-directed as based on those factors,
then you might not fit
in this bucket at all.
But if you feel that under
that 10-factor analysis
your content might be
considered child-directed,
or you have actual knowledge that
children are watching your videos,
then you would need to rely on
the mixed audience exception.
The mixed audience
exception recognizes that
some services and videos are appealing
to both children and non-children alike.
And as a result, it
allows content creators
to get out of that box of child-directed
if they meet certain requirements.
The so-called mixed audience exception
is found in section 312.2 again,
and states specifically that,
"A website or online service
"that is directed to
children under this criteria
"set forth in paragraph (1),"
that's the 10 factors we talked about,
"but that does not target
children as its primary audience,
"shall not be deemed
directed to children if,"
one, "it does not collect
personal information
"from any visitor prior to
collecting age information."
And two, "Prevents the
collection use or disclosure
"of personal information from visitors
"who identify themselves
as under the age of 13
"without first complying with the notice
"and parental consent
provisions of this part."
Now some commentators including my friend
and fellow lawyer, Ian
Corzine, have argued
that YouTube is hiding
the ball by not explaining
to creators that the mixed
audience exception exists
and by not making the
mixed audience exception
an option when you're uploading a video.
Unfortunately, I don't think that
that's really true, and here's why.
Remember that the mixed audience exception
applies only when, number one,
your primary audience is not children,
but also it has two
additional requirements
regarding personal information.
It means that operators, and remember,
YouTube creators are
operators under COPPA now,
cannot collect personal information
from visitors prior to
collecting age information,
and that they prevent the
use of personal information
from visitors who identify themselves
as under the age of 13.
Now you might assume
that you could just rely
on the general YouTube age gate
and the fact that YouTube is actively
segregating users based on their age.
They put children in YouTube kids,
and they put everybody
else in YouTube main.
But the problem is that the
FTC appears to be taking
the position that YouTube,
let alone creators,
cannot rely on the overall age gate,
or sometimes called the swing gate,
in terms of assuming
that people who are using
YouTube main are over the age of 13.
And on top of that, if you put an age gate
on every single video and required people
to affirmatively state that
they are over the age of 13
before they watched any
video that is marked
as not directed at children,
well, number one, you're
putting a burden on adults,
which is sort of an iffy area.
But if YouTube can't rely
on their general age gate,
in the terms of service it says,
no one under the age of
13 can use YouTube main,
then why would the FTC take their word
on an age gate on any particular video?
Remember that to sign up for
YouTube in the first place
you have to certify that
you are over the age of 13.
And if you put in a
birthdate that is below that,
you will be rejected from
creating a YouTube account.
And if that's not good enough for the FTC,
then the only thing that YouTube can do
is what they're doing that effectively
there is no mixed audience exception.
If anything is considered child-directed,
then they have to turn off the algorithm.
They have to turn off comments,
and we are limited into
stating that a video
was either directed at children,
or it is not directed at children.
And in a way, children are
getting a veto on adult behavior.
YouTube may have to take the position
that for a child-directed video
or a partially child-directed video,
they have to remove all
persistent identifiers
whether the audience
is children or adults.
Now it's unclear if this is required.
When Malik Ducard of YouTube
spoke to the FTC in October
this is one of the things that he
really wanted clarification from the FTC.
But for the time being,
the mixed audience
exception is up in the air.
It's not clear that either
YouTube or YouTube creators
will ever be able to meet the requirements
depending on how strictly the FTC
is interpreting their rules.
And it's unclear, who if anyone,
can take advantage of the
mixed audience exception.
So what are the consequences
of COPPA in this context?
Well, we can probably
be sure that some people
are gonna make less content.
Some people are going to be too afraid
of the regulations, of potential fines.
We've already seen people
delete their entire channels.
We've seen some people take
their content behind paywalls.
And some will lose monetization entirely,
while others see maybe
1/10 of their AdSense
as they have to deal
with contextualized ads
instead of personalized ads.
And in some instances
the FTC has said that
the alternative to not
using persistent identifiers
is to remove the videos entirely.
That's what TikTok had
to do when they got hit
with a nearly $6 million fine for almost
these exact same COPPA violations.
And there are other unintended
consequences of COPPA.
One of the biggest
ironies is that platforms
may now be required to collect more data
on their users, not less.
It forces apps and platforms and websites
to get more info about their
audience, about their age,
and be able to enforce
these different age gates.
We can probably also be sure that some of
the machine flagged videos
are gonna be false positives.
And who knows if individual creators
are going to be able to appeal a decision
that a video was marked as child-directed
when they had no intent of directing
their videos to children.
Of course, as a lawyer, I can't help
but wonder if this
whole enforcement action
is legal in the first place.
As I mentioned earlier, I think that
there may be some
constitutional issues here.
I wouldn't necessarily hang
my hat on these arguments.
But thinking out loud, I
can think of somethings
that may be problematic for the way
that the FTC is handling this.
First, as I mentioned before,
the way that this is being enforced
basically, restricts content based
on viewpoint and the intended audience.
When you are restricting
speech based on viewpoint,
you run into some First Amendment issues.
And I wouldn't say that
this necessarily applies,
but there is a notion
in First Amendment law
about a heckler's veto.
You see this a lot in college campuses
that just because someone
is going to protest
and that protest may spawn
violent counter protests,
you don't allow the
violent counter protests
to stifle the original protest.
That's called a heckler's veto.
And if we considered child-directed
to be the lowest common denominator,
effectively, that has
stifled regular speech.
That's the heckler's veto.
And by analogy, if we
said that the content
that was viewed by, let's
say, 25% of children
was enough to trigger COPPA,
then that minority of children
that watch this content
have then placed huge
burdens on that content
with respect to everybody
else who are not children.
It's sort of like a
child's heckler's veto.
And let's not forget that children
have free speech rights too.
In Brown versus Entertainment
Merchants Association
decided in 2011, the
Supreme Court struck down
a 2005 California law
which banned the sale
of certain violent video games to children
without parental supervision.
Just because we're dealing with children
doesn't mean that they lack
First Amendment protections as well.
Fellow YouTube lawyer, Jeremy Johnston,
thinks that this law may
be unconstitutionally vague
based on the 10-factor analysis.
That may be the case.
I have my doubts, but it's
an interesting argument.
And there's an open question as to whether
the FTC has exceeded its
regulatory authority.
We looked at the original
statutory language,
and there's a big difference between
a child's Social Security number
and the new definition
of personal information,
which includes persistent identifiers.
Now admittedly, regulatory
authorities receive
what's called a Chevron deference,
which means that courts are very unlikely
to overrule the rulemaking
of various agencies.
But at least theoretically,
they're still bound
by the language of the statute itself.
Now I regret to inform you that
unfortunately, this
situation can get worse.
The last rule review
for the FTC was in 2013.
That is what put in place
these new definitions
that we are just now grappling with.
But those definitions
could get even worse.
There is a big movement to expand
the 13-year-old cut-off to even later,
maybe 15, 16-year-olds
to expand COPPA to apply
to teenagers as well as
children under the age of 13.
There's a big push to expand COPPA
past child-directed to
include child attractive,
so that regardless of
what your intent was,
if really any children are
attracted to your content,
then it's considered
child-directed as well.
The $170 million fine
that YouTube had to pay
as part of the consent
decree was only approved
by the FTC as a three-to-two split
amongst the commissioners.
The other commissioners wanted to make
the fine much, much worse,
and put in place much
more draconian procedures.
So things can get worse
before they get better.
But that raises the
question, what can we do?
Well, whether you are a YouTube creator,
whether you are a fan of other creators,
there's a lot that can still be done.
First of all, leave comments with the FTC.
Everyone has until December 9th 2019
to leave comments with the FTC.
I'll leave some links in the description
for where you can leave those comments
and some suggestions as
to what kind of wording
you should leave with the FTC.
A big thanks to Jeremy Johnston
who put all of that together,
who has spoken to the FTC and has really
been the tip of the spear when it comes to
creating this movement among creators,
recognizing the danger
and recognizing that
we need to reach out to the FTC.
I will say, don't be rude to the FTC.
Don't call them names,
don't use profanity.
It's going to be some poor staffer
that reads all of these comments.
But the more comments that we can leave,
the better.
Also reach out to the FTC
commissioners on Twitter.
I'll leave some links to
their Twitter handles.
Don't just limit yourself to
the FTC comment system itself.
Reach out via Twitter as well.
Make your voices known.
Additionally, reach out to
your legislators as well.
They can put pressure on the FTC.
Their voices would be
welcome in this as well.
In terms of feedback, explain how COPPA
is going to lead to less content,
that it's too much of a risk
for individual creators,
that it's making it
not monetarily feasible
for many of the smaller
channels out there.
Explain that the mixed audience exception
needs to be expanded to make
sure that creators are safe
regardless of what the FTC
may decide on an ad hoc basis.
Explain how the YouTube system works
and that the age gate
should be sufficient,
and that it's not fair to
treat adults like children
that we should allow adults
to be treated like adults.
Explain that YouTube Kids
is a great place for kids,
and for parents that
want to take their kids
out of YouTube main, it
presents a great alternative.
And also that we should expand the ability
of parents to be able to consent.
If a parent hands off
their device to a child
and allows them to use YouTube main,
that should be considered
a form of parental consent,
which is not currently
recognized by COPPA.
Explain that based on the
way that the Internet works
using persistent identifiers
as a form of PII for children
doesn't make any sense
and that the definition
of personal information should not include
persistent identifiers or
that persistent identifiers
should be treated differently.
And for more information,
I would recommend
checking out Jeremy Johnston
and Ian Corzine's channel
for the opinion of two
other great lawyers.
Now for better or worse, COPPA is just one
of the many issues that creators
need to deal with online.
And while it's not great,
the thing that steers
creators the most is usually copyright,
and that's why I created
CopyrightCourse.com
to give all creators the tools they need
to be able to deal with copyright online
and use copyrighted
material in a fair use way.
You can use the link in the description
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Because the fat cats in Hollywood
have hundreds of corporate lawyers
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I think it's time to give
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And maybe you wanna make YouTube videos,
but are afraid of doing something wrong.
Maybe you already make videos,
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So do you agree with my analysis?
Are you worried about COPPA?
Leave your objections in the comments
and check out my other real law reviews
over here in this playlist
where I'll see you in court.
