COPPA

The Federal Trade Commission's unclear guidelines for what needs to be marked as directed for children is leaving YouTubers' scambling for answers.

As the year comes to a close, content creators on YouTube are experiencing an existential dread due to the website’s violation of the Children’s Online Privacy Protection Act. Earlier in November, the video sharing site revealed a new policy going into effect Jan. 1, 2020 that forces channel owners to mark any YouTube channel or YouTube video that is “child-directed” as “for kids.” If they are not, they must be marked “not for kids.” This is to protect the privacy of children under the age of 13 from predatory marketing. Problem is, marking videos as “for kids” means a massive reduction in ad revenue and discoverability for content creators, and the parameters for what videos are “child-directed” are so vaguely defined by COPPA that unsuspecting channels could fall prey to the policy’s biggest kicker: a $42,530 maximum fine per video for any channel content that is in violation.

Back in September, the Federal Trade Commission fined Google and YouTube $170 million for “illegally [collecting] personal information from children without their parents’ consent.” The fine was paid, but it wasn’t the only stipulation in the FTC’s settlement. That’s where YouTube’s new policy comes in, forcibly shifting the onus to mark one’s content as directed to children onto the content creators. At the core of YouTubers’ panic and confusion is the language of "A Survey on Compliance," a document created by the FTC that collects survey data of websites that either did or did not fully comply with the COPPA Rule of children’s privacy protection. As many content creators have been highlighting in videos and on social media, the FTC’s guidelines for what counts as “child-directed” is anything “appealing to children,” including, “kids’ jokes, music, kids’ games, video/computer games, children’s tv shows or stars, cartoon characters, sports, stories, toys, children’s books, fantasy, children’s arts and crafts, pets,” “bold or fast-moving graphics,” “bright and vibrant colors” or language such as “fun,” “whatever,” “cool,” “duh” and “games.”

There are wrinkles, however — the compliance survey has not been updated since its publication in 2002. The updated FTC website has a page specifically addressing YouTube channel owners that omits the mention of such broad parameters as sports, features a compliance plan to help YouTubers avoid the looming fines and specifies, “unless you’re affirmatively targeting kids ... you don’t have to worry about COPPA.”

And yet, some further wrinkles — the compliance survey states in its intro summary that it “establishes a benchmark for future analysis of Rule compliance.” This could be interpreted literally, meaning that the report is essentially the master reference for all current concerns. However, the fact that the updated FTC website has altered language and material specifically for YouTubers could be interpreted to mean the report is a guideline, rather than a glorified Bible.

Children’s privacy should absolutely be protected from predatory services, but the FTC seems a little too happy about a culling, with the only avenue of offered aid being a Dec. 9 deadline for objectors to submit comments. Likewise, YouTube is not forthcoming with support — the website is offering no legal advice other than “get a lawyer.” Members of the YouTube community are countering this lack of support by starting a petition for the FTC’s reconsideration of the COPPA Rule.

When a government organization waves around multiple sets of rules and doesn’t tell you which ones you need to follow, the vise of litigation could clamp around anyone. We need specifics. Not an overzealous FTC. Now is the time for them to lay out a better plan with Google and YouTube to help identify what is or is not safe, because COPPA may not stop with YouTube — social media, online stores and even streaming services could come under attack. If any of them are like YouTube and pay their fines without sneezing, the public could once again be forced into a no-win scenario.

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