COPPA, otherwise known as The Children’s Online Privacy Protection Act of 1998, has been a law on the books (15 U.S.C. §§ 6501–6506 (Pub.L. 105–277, 112 Stat. 2681-72) in the U.S. since 1998. The law was designed to help aid parents in controlling what information websites can collect from their children, prohibiting unfair, or deceptive acts, regarding the procurement, use, and sharing of kids’ personal info.
This law,in recent months, has caught the attention of the world, as Google and YouTube were fined because of alleged violations. The investigation into YouTube was initiated because of complaints by consumer groups and privacy advocates.
Under this Federal law, a child is defined as any individual under the age of thirteen. This law covers any, and all, means of collecting data online about children, including tracking online browsing history, and also covers targeted ads directed at this age group using such data. Since 2013, when the law was amended to cover “persistent web identifiers”, something most of us are more familiar with as “web cookies,” this has been the case.
Cookies allow a website to keep track of things between web sessions, and between web pages and sites. This could be viewing history, what’s recently been purchased, time spent online, or anything else that may be ascertained indirectly from a website visitor’s Internet use patterns. Primarily, cookies serve to help a web site personalize user experience.
The New York State Attorney General, along with the FTC, accused Google, and its YouTube subsidiary and website, of illegally collecting kids’ personal data without express parental consent. At this point, YouTube is the world’s top Internet video site, hosting more videos, with more views, than any other place on the web.
On September 4th, 2019, Google LLC and its subsidiary, YouTube LLC, settled these allegations in a deal that required the company to pay $170 million in fines, as well as the discontinuance of any practices that are banned by the law. This was not the first privacy-related judgement against Google, however, this decision is unique in that it threatens to permanently alter the landscape of YouTube, and the Internet, drastically, creating unprecedented change. Some would say this latest decision will bring sure disaster for online viewers and content creators alike.
The COPPA Rule requires parental consent for collecting information from (and about) kids, and Google had been using identifiers to follow a user’s Internet browsing history, for the purposes of targeted advertising. Targeted advertising is the practice of placing ads to individual users best suited to each user, based on their perceived demographics, likes, and preferences, all gleaned from algorithmic consideration of what they watched, and where they went, while online. Nowhere is a child questioned, nowhere does a kid supply answers to queries of any sort; it’s all done automatically, using AI to sort of guess the age of the user.
FTC Chairman Joe Simons was blunt, “YouTube touted its popularity with children to prospective corporate clients. Yet when it came to complying with COPPA, the company refused to acknowledge that portions of its platform were clearly directed to kids. There’s no excuse for YouTube’s violations of the law.” The complainants in the case, the FTC and NY Attorney General, believed that YouTube, a general-audience site, offered specific channels that were aimed at kids, and therefore considered YT to be in violation.
But was the YouTube website and app aimed at kids? Clearly, Google’s designation of YouTube as a general interest online destination is completely fair; though there are specific channels that individual YouTubers created for kids, the YouTube platform itself is not in any way a web interface geared to use by children, specifically. While the YouTube Kids app served to protect kids from more mature content, the channels featured on the app displayed ads to its young viewers that were specifically targeted at children. And, that violated the law, according to the FTC.
However, can it be legally assumed that a child under age 13 can put an app on their phone without their parents’ express permission? In fact, while most kids within this age group must obey their parents, and most caregivers exert strict editorial control over what their kids see, Google and YouTube conceded and settled. Did most, if not nearly all, kids within this age group actually require their parents permission to install the app in real life? Probably. However, YouTube did not take the necessary steps to prove this crucial truth.
In fact, any families I know with kids under the age of thirteen have parents watching the kids’ Internet use with extreme care, without exception, as would be expected. Perhaps YouTube shouldn’t have conceded so quickly? As the law is written, there may have been little choice. But does COPPA really protect children? Or, is it merely a feel-good measure by advocated by people completely clueless about what might actually protect (and harm) our nation’s children?
What if 1,000 YT kid-users and their parents were surveyed, and it ended up being a provable fact that all the children surveyed indeed had had their parents’ permission to use YouTube or install the YT app? I have news for you: This was quite likely what would have been the case, had such an investigation been undertaken. Discovering that kids under 13 were using the Internet unsupervised, on any large scale, would be highly unlikely. Parents should keep track of what their kids are doing with their phones, and that extends far beyond their use of Google to view innocent children’s videos. Every parent of young kids I know does, at least. Possible, the present COPPA law is flawed, as written and interpreted?
Would things have turned out differently if the app featured a button for parents to click assuring that their kids had such verifiable permission, after scrolling through a COPPA-specified notice, before allowing the app to go live for its younger users on their phones? Or, what if YT had utilized another means to verify that a parent, indeed, approved of their kid’s use of YouTube or its app? Would something so simple have averted the fines? Would Google have been protected?
Quite possibly not, as the complaint is not only about the YouTube kids App, although it was one issue cited. In fact, this also has to do with the fact that YT is free for anyone, of any age, to view content, without creation of an account. (Subject matter aimed at adults does require login and an account registered to someone over eighteen years of age.) Also, anyone creating an account, which requires a date of birth, may be served age-specific advertising, and if their age indicated they were under thirteen, the ads were, in fact, for “kid stuff.” These were all factors.
Google channels are rated Y (generally intended for ages 0-7); G (intended for any age); PG (generally intended for ages 10+); Teen (generally intended for ages 13+); MA (generally intended for ages 16+); and X (generally intended for ages 18+), to protect kids from material unsuitable for their age group, and best identify what would be most appropriate for each and very viewer. The Y-rated channels also collected user data and served behavioral advertisements. As there was no COPPA-specific parental permission form or other check in place, this practice, meant to protect kids, was also attacked in the suit, as targeted advertising was in use.
How Will YouTube Be Changing?
As part of the settlement, YouTube is required to institute an FTC-compliant “kids content” tracking and labeling system. The deadline for implementation of the compliance system is January of 2020. While this sounds simple enough, in fact it is anything but. YouTube video creators were sent scrambling. The September ruling places the onus of responsibility for proper channel labeling on YouTubers who create the content, not YouTube. Here’s where it gets weird.
What IS actually made for kids? A channel run by adults about Disney World, aimed at adults seeking to visit Disney World, may yet be considered a “kids content” channel. A channel about what kids did in the 1980s, run by adults and primarily for adults to view, may also. We just don’t know. Why not? It’s unclear.
And, if a channel opts to be designated “for kids,” that channel’s owner cannot earn from ads as before, a significant way content creators fund their projects and get compensated for their time and energy. Kid-targeted video creators realize this means they can no longer profit as they once had from their children-oriented videos.
This will certainly dampen creativity, and not just for kid-centric channels. As the fines (the law clearly states that civil penalties of up to $42,530 per violation are a possibility) are real and the danger to content creators is also, many fear they, too, will be targeted by the FTC. “Child-targeted” leaves a serious amount of wiggle room in its interpretation; it isn’t so clear how many of the “grown up” channels will fare that may seem to be kid-oriented,but actually are not.
There’s no way this won’t decrease the amount of family-friendly, child-focused content available on YouTube. A law meant to protect kids will actually keep kids from content that is best suited for them. Truly, this is a paradox. COPPA is creating a nightmare for parents, kids, and content creators, alike.
Which YouTube Channels Will Be Affected?
Gaming content, while often made by adults for adults, may also subject to the FTC rules. A considerable amount of content is at risk. Anything with cartoons or animation is also potentially subject to COPPA. And, once a video is marked “for kids,” the video will have no notifications, no comments, will not be searchable, cannot be suggested, and will earn its creator a projected ~60 – 90% less revenue.
The issue is, COPPA is exceedingly vague about what exactly constitutes children’s content. Under “subject matter”, the FTC language includes video/computer games, music, cartoon characters, sports, stories, fantasy, pets, and more. Actually, the list is more extensive, though the actual designation of kids content is a bit more complex, requiring two or more conditions be met: That the content’s subject, presentation, or interactivity is geared toward a young audience.
What does this mean for YouTube, and the Internet? Will the richness of content that we have grown to enjoy on YouTube abruptly cease to be on January 1st? Will many individual channel operators lose their sole source of income? Will creativity be suppressed? These are all distinct possibilities.
While we can all applaud efforts to protect children online, it’s questionable whether COPPA’s compliance rules are fair, clear, and precise enough not to serve as an exceedingly wide drag-net for all things cute, cuddly, and funny on YouTube. Channels that bring people of all ages joy and laughter may be shut down, in the interest of “protecting children.”
Is this truly a social good? Will our lives be that much better without the latest funny cat video? Is stifling creativity consistent with American values, the concern for fostering freedom of expression, freedom of speech? We shall soon see. Perhaps this could have been executed differently, as we all wish to protect kids, but not at the cost of online freedom. COPPA violates kids’ rights. COPPA violates content creators’ rights. And, COPPA does not meet the goal it sets out to accomplish.
What Can Be Done About COPPA?
Presently, there is are numerous petitions online asking the FTC to reverse its decision, or find another solution. Family-friendly content must be protected, and many Americans are in agreement that the solution is more of a problem than a satisfactory answer. Read about COPPA and the YouTube case. Read the text of the COPPA law.
And then, if you feel that your family will suffer under the FTC’s new guidelines, by all means, consider signing a petition. It is ironic that the loss of kid-friendly videos may set kids searching the web for entertainment and learning, only to find the kind of videos YouTube tried so hard to protect kids from with its age-specific video designations. And, who knows where kids will end up; it could be on video-sharing sites far less child-friendly than YouTube, places decidedly kid-UNfriendly, in fact.
An excerpt from the COPPA rule follows:
Determine whether a site is primarily directed to children 12 and under.
A Web site that is primarily directed to children should have AT LEAST TWO of the following
three factors present: Subject Matter, Presentation, and Interactivity. If a site is directed to a
mixed audience, adults and children, but has a designated children’s area that is “primarily
directed to children 12 and under” within the same URL, you should examine the children’s area
to determine whether the site is “primarily directed to children 12 and under.”
Many times, you should be able to tell from the home page whether the site is primarily directed
to children. (The term home page refers to the main web page for a business, organization,
person and is often labeled as such on the screen.) But you may need to view other pages,
indexes, or a site map if one is provided.
subject matter that is appealing to children ( e.g.,
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, products primarily purchased or consumed by kids like snack food or cereal)
a. language of the Web site such as language that is simple enough to be
understandable to children 12 and under; short, colorful descriptions; slang and pop
culture phrases (e.g., a kids’ site may be identified by such language as “kids only,”
“fun,” “free stuff,” “whatever,” “cool,” “duh,” “games,” “Ask your parents….” etc.)
b. whether the Web site uses visual content appealing to children
(animated characters, bold or fast-moving graphics, or bright and vibrant colors)
Protecting Children’s Privacy Under COPPA
B-2 c.use of host characters (often a character property used offline, on television, in
movies, or comics or books)
d. the age of the models portrayed on the Web site (using children as models)
e. whether advertising appearing on the Web site is directed to children under 13
(e.g., ads for products primarily purchased or consumed by kids, or ads that are presented
in such a way that they appear to be directed to children)
f. audio content appealing to children (e.g., simple or popular tunes or songs, cartoon
voices, child-like noises and sound effects)
whether the Web site hosts interactive child-oriented activities and incentives
(surveys/polls; clubs; prizes/premiums; homework help; contests/games; pen-pals;
chatrooms; posting winners’ home pages, stories or art work; guestbooks; downloads or
screen-savers; electronic postcards or e-cards)