In September, 2019 the FTC reached a settlement with YouTube regarding their violation of
the Children’s Online Privacy Protection Act, or COPPA.
The ultra short summary is that under COPPA you’re not allowed to collect identifying
data from children 12 and under without verifiable parental consent.
What the complaint alleged was that while YouTube was claiming to be COPPA compliant
by restricting their platform to individuals 13 and older, they did, in fact, knowingly
gather vast troves of data from children 12 and under, market YouTube to content creators
as the dominant platform in children’s entertainment, and use the collected data to shape a behaviourally
targeted ad network that they actively sold to child-directed content creators, with corporate
channels operated by Hasbro and Mattel being specifically named in the complaint.
As part of the settlement with the FTC, YouTube has agreed to pay $170 million for these violations
and to institute a system whereby channel operators voluntary identify child-directed
content, at which point information-gathering features will be disabled on those videos
or channels.
YouTube has, subsequently, implemented two new systems. The first is, as directed, a
system that requires channel owners to indicate if their content is child-directed, colloquially
“for kids”. This flag can be set at the channel owner’s discretion on a video-by-video
basis or as a channel-wide setting. This is the system the settlement mandated.
The second is an algorithm-driven automated system that seeks out potentially child-directed
content and automatically flags it “for kids”. The exact operation of this system
has not been disclosed to channel owners, however it is safe to assume it includes analysing
language used in the title and description, and a measure of image analysis of the video
itself, possibly language analysis of the soundtrack.
YouTube is not required to do this, they have implemented this voluntarily, an element that
they have loudly proclaimed in an effort at positioning themselves as eager and willing
to go above and beyond in complying with the settlement.
Additionally, the FTC has stated that they consider channel owners on YouTube to be what
COPPA defines as “operators”, which is to say that an individual YouTube channel
should be viewed in the same classification as a website, such as My Little Pony.com,
with YouTube merely functioning as the host. Under this classification channel owners are
strictly liable for COPPA compliance on any child-directed content and may be subject
to fines exceeding $40 thousand US per infringing video. In practical terms an infringing video
is one that is child-directed but has not been properly flagged as such.
Again, it’s worth remembering that the FTC’s primary examples in forming this opinion were
YouTube channels operated by existing corporate entities manufacturing child-directed content
and products, such as Hasbro, Mattel, Nickelodeon, and Disney.
On the whole, I absolutely agree that there was, in fact, wrongdoing on the part of YouTube,
and on the part of several child-directed channels. The FTC’s complaint and the resulting
settlement are absolutely well founded. There are undeniable problems in how YouTube handles
children’s entertainment that need to be addressed, and in that solution channel owners,
without question, bear some responsibility in ensuring that child-directed content is
produced and delivered with due respect for the privacy of their audience.
I would like to focus, however, on where the implementation of this agreement has gone
wrong, resulting in a substantial disruption in operation for a wide range of channels
that bear only superficial similarities to actual child-directed content.
The automated system that YouTube has implemented aligns with what Commissioner Rebecca Slaughter
called a “technological backstop”, an automated system to “identify undesignated
child-directed content and turn off behavioral advertising.” In her dissenting statement
on the settlement Commissioner Slaughter proposed such a system as “a mechanism to ensure
that content creators are telling the truth when they designate their content as not child-directed.”
In Chairman Simons and Commissioner Wilson’s joint statement on the settlement, they acknowledge
Commissioner Slaughter’s preference for a “technological backstop”, but Simons
and Wilson dismiss this option as it would, in their opinion, be “an empty gesture.”
“[YouTube] could easily develop a half-hearted measure that would technically comply with
the order and give the public a false sense of security. Moreover, such a measure likely
would catch in its net channels not directed at children, therefore limiting content to
other audiences while the errors are resolved.”
This is, in effect, exactly what YouTube has done. The system that they have chosen to
implement meets the requirement of the settlement for a system of self-designation, but it additionally
goes further, bluntly implementing an algorithmically-driven system that automatically designates content
as “for kids” based on oblique, overly-broad criteria. This has had the exact effect Simons
and Wilson foresaw, generating a huge volume of false-positives, most notably in adult-facing
channels that discuss all-ages and children’s media from the perspective of adults in the
role of collectors, educators, editorialists, and documentarians.
How this plays out for channel owners on a day-to-day basis is that it adds another automated
detection system that imposes action on the channel immediately and without warning.
A video that is misdetected as child-directed is instantly placed in the “for kids”
classification, forcing channel owners to either wait through the appeals process, or
remove, alter, and re-upload the video.
In order to have their work seen, YouTubers rely on a sophisticated network of recommendations,
a system that is driven by a series of abstract metrics colloquially referred to as “engagement”.
Engagement is tied to viewer actions such as rating a video, leaving a comment, subscribing
to a channel, adding the video to a playlist, and viewing other videos from the same channel
in succession. The “for kids” classification removes several of these systems from a video,
notably comments, subscriptions, playlists, and ratings. Removing these directly limits
the degree to which a video can be engaged with, and thus its position within YouTube’s
recommendations.
As working professionally on YouTube is a highly time sensitive business, with critical
windows for revenue generation, misidentification of content as child-directed at key times
early in a video’s life can have a disastrous impact on the revenue of adult-facing content.
Additionally, misidentification of adult-facing content as child-directed has and will continue
to lead to a substantial quantity of content that is inappropriate for children being added
to the “for kids” classification. While the appropriateness of children’s entertainment
isn’t the purview of the FTC and is out of the scope of COPPA, it is a related issue
that is already being hotly debated on the platform, and it is worth considering that
YouTube’s new automated system has farther reaching impacts than just the issues immediately
at hand.
In rolling out this system YouTube has been vague with users, generating a tremendous
amount of chaos, uncertainty, and animosity that they have done little to dispel, but
much to direct towards the FTC itself, seemingly intent on overwhelming the commission with
an unparsable volume of uninformed panic that could serve to delay or soften the terms of
the agreement against them.
While the commission has recognized the existence of all-ages content and differentiated to
some degree between age-appropriate and child-directed, YouTube has, in their communication with creators,
stressed an overly vague definition of “for kids” with overt stress on the possible
penalties. This has lead many users to conflate YouTube’s broad and ill-defined definition
of “for kids” with the FTC’s, a conflation YouTube has been silent about addressing.
A folk-narrative has evolved among users where they have come to believe that they are potentially
liable to the FTC for anything as small as incidental inclusion of children’s characters
in their videos or a mere cosmetic overlap in interests.
As an example, the YouTube sub community of adult craftspeople modifying children’s
toys, particularly fashion dolls, using sophisticated, adult techniques (including caustics, solvents,
razor blades, power tools, and sewing machines) has been led to believe that the simple overlap
of “dolls” as an interest category is sufficient to not only have their channels
labeled “for kids” by YouTube’s blunt algorithm, but expose them to potential FTC
action if they appeal to have their full monetization and engagement features reinstated.
Rather than create an environment where child-directed content creators are worried about the consequences
of trying to circumvent the “for kids” classification, general audience content creators
are panicking about the hypothetical consequences of accurately describing their content as
“not for kids.”
Some measure of automated detection is likely necessary to stay ahead of serial offenders,
like child-directed content mills cranking out nursery rhyme cartoons, however the application
of this automated system on a video-by-video basis, paired with confusing and vague directions
for channel owners, has served only to generate chaos.
I want to explicitly acknowledge that channel owners absolutely bear some responsibility
in compliance. The solution the FTC mandated, requiring channel owners self-identify child-directed
content, is a reasonable burden.
However, YouTube has additionally passed much of their burden of compliance onto channel
owners as well, and have done so without giving channel owners the appropriately granular
mechanisms or educational resources to make informed, conscious decisions about how data
is collected from and utilized on their channels. This burden is being borne mostly not by corporate
channels such as Mattel, Hasbro, or Disney, who do not rely on YouTube for substantial
revenue, nor by inarguably child-directed independent YouTube channels, but by channels
producing all-ages content that they have monetized with a good-faith assumption that
YouTube was telling the truth about COPPA compliance, that their channels and the ads
on them were being served to an audience aged 13+.
While YouTube could simply remove child-directed advertising from their behavioural ad model
entirely or use their clearly demonstrated ability to discern under-13 viewers and disable
behavioural advertising selectively at the user level, they have instead chosen to structure
their system to place the burden and consequences overwhelmingly on channel operators. YouTube
is in effect trying to build a scenario where they are still allowed to gather and utilize
children’s data in serving targeted, behavioural ads with the blame falling on channel owners
for letting them gather that information and serve those ads.
Channel owners do have some granular control over the types of ads that appear on their
channels, however these controls are not contained within the YouTube platform itself, but within
its sister product, AdSense, and for basic users these AdSense controls do not include
explicit age-group targeting or exclusion, only implicit control based on large subject
matter categories.
By default all channels accept ads in all categories except gambling and alcohol products.
In practical terms the majority of YouTube channels lack the resources to collect meaningful
audience data on their own and are wholly reliant on the data that YouTube chooses to
share with them. Because this data set does not include information on children 12 and
under, the vast majority of good-faith all-ages content producers do not have actual knowledge
of their child audience and would, if provided the opportunity, willingly disable behavioural
ads directed at children. Indeed many channel owners assumed this was already the case.
While it is possible for channel operators to opt out of behavioural advertising as a
whole and limit their ads to contextual ads only, the controls to do so are deeply hidden
and, as Commissioner Slaughter observed, channel owners are warned against doing so because
it may, quote, “significantly reduce your channel’s revenue.”
It is worth noting that channel owners are given no additional data to verify that claim
or assess what YouTube considers to be a significant reduction. Channel owners’ perception of
their incentives, and resulting behaviours, are overwhelmingly shaped by YouTube because
YouTube controls both access to and framing of that information. It is worth considering
to what degree channel owners are left in the dark about where their interests and YouTube’s
interests diverge.
Lastly, while the FTC has determined that individual YouTube channels are ‘operators’
under COPPA and thus have a strict liability for compliance, I don’t feel like that is
an appropriate one-size-fits-all descriptor. While it applies to many channels, notably
corporate channels that have the resources to maintain a self-contained network of related
content and negotiate with YouTube directly as both advertisers and content creators,
the majority of channels simply must take whatever YouTube chooses to give them.
Contrary to the commission’s framing, YouTube is not collecting data on my behalf as an
operator, but is merely allowing me to view a select slice of data that they collect regardless
of whether or not I choose to activate or deactivate behaviourally targeted ads.
Again, it would be possible for YouTube to address much of this compliance by making
alterations to their underlying ad-service. If YouTube is technologically capable of dynamically
serving behaviourally targeted ads to children, something they are demonstrably capable of,
then they are equally capable of using that information to disable that user’s access
to data-collecting features, only serve contextual ads, remove ads altogether, or direct the
user into YouTube Kids. YouTube has at its disposal substantially more sophisticated
means to comply with the Commission’s agreement.
While voluntary content flagging is useful and a good measure, and some measure of automated
detection is likely necessary, YouTube’s response has been deliberately broad, utilizing
their status as a monopoly in online video to force creators to bear the burdens of compliance
without providing them with the tools and data to do so in a meaningful, educated manner.