Disclaimer: I am NOT a lawyer, and this is not legal advice. I will be quoting directly from COPPA, the FTC Frequently Asked Questions about COPPA, the FTC/YouTube settlement, and the statements from each of the five Commissioners who ruled on the settlement. I may offer my opinion, but please do not take that as legal advice. If you find any errors, please let me know.
I produce educational science videos, targeted to teachers for grades 3-12. Until recently, my website was subscription based, only available to paid members. In August, I transitioned to a site free for everyone, with videos hosted on YouTube. Just as I made the change, the YouTube/COPPA disaster hit, and like thousands of other YouTube Content Creators, I have been trying to find out what I need to do to comply with COPPA.
I read the full COPPA rule, the FAQ for COPPA, the YouTube/FTC settlement, the statements from Joseph J. Simons & Christine S. Wilson, Commissioner Noah Joshua Phillips, Commissioner Rohit Chopra, and Commissioner Rebecca Kelly Slaughter, the five FTC Commissioners who ruled on the settlement, and everything else I could find on COPPA. The more I read, the more frustrated I get.
The first thing you run into as you dig through COPPA is the phrase “directed to children”. As you dig deeper and deeper, that phrase starts to show up in your nightmares. I went to the COPPA rule to find the legal definition. What I found in COPPA shocked me.
(1) In determining whether a Web site 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 Web site or online service, as well as whether advertising promoting or appearing on the Web site 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.
As I said, I am not a lawyer, but with that as the only definition, it seems to say that only the FTC can determine if your content is directed to children or not. They give us some general categories, but no indication of how to draw the line between “directed to children” and general audience. Reading further, part (3) of the same section makes it clear that a website can be directed to children even if most of its audience are not children, so the dividing line does not seem to be based on the number or percentage of children who use your content.
Now, you may be thinking that this is an easy determination. Content such as Sesame Street seems to be clearly “directed to children” with puppets, bright colors, content that teaches letters and numbers, simple songs, etc., so content creators should know if their content is “directed to children”.
If you are thinking that, let me remind you that COPPA defines “children” as individuals under the age of 13. Most seventh graders are twelve years old, so any content that could be considered directed at least partly to Middle School students could be considered “directed to children”.
Pause a moment and think about which topics interest a seventh grader. I doubt you are still thinking of Sesame Street. Instead, you may be thinking of Sports Illustrated, Billie Eilish, Assassin’s Creed, Imagine Dragons, etc. Not what most people think of as “directed to children”, but well within the range of COPPA.
I contacted the FTC because my content seems particularly difficult to classify. I direct my content to teachers, but those teachers usually show my videos to their students. Since the main audience is children, my content could seem to be “directed to children.” But the teacher is using their own account, usually though their own device since many schools block YouTube. The teacher clicks the button, and only the teacher’s information is collected. That sounds more like it is not “directed to children”.
The distinction is very important. If the FTC decides that your content is “directed to children”, you are required to treat everyone who uses your content as if they are a child, even if you have actual knowledge that they are adults. You are not allowed to let them comment on videos. You are not allowed to collect email addresses so that you can notify them of new videos, even if all of the email addresses are obviously from school teachers.
I found an email address for the Coppa Hot Line (CoppaHotLine@ftc.gov). I explained my situation and asked them for help in complying with COPPA. They referred me to:
Kristin Cohen, Attorney, FTC
600 Pennsylvania Ave. N.W
Washington, Dc. 20580
Peder Magee, Attorney, FTC
600 Pennsylvania Ave., N.W.
Washingtion, DC 20580
After several calls, Ms. Cohen finally returned my phone messages, but only to tell me that the definition in COPPA was very clear, and that she could not give any legal advice on how to comply with COPPA. I explained that I am not against COPPA. I just need to know how I am classified under the law so I can comply, and I need a clear definition of “directed to children” to do that. In subsequent emails, I again begged her for help in complying with COPPA, but she stopped responding to any of my questions, phone calls or emails.
In their statements about the YouTube/FTC settlement, the FTC has made it very clear that they intend to hold content creators responsible.
Statement of Joseph J. Simons & Christine S. Wilson
Regarding FTC and People of the State of New York v. Google LLC and YouTube, LLC
September 4, 2019
“This framing puts content creators and channel owners on notice that we consider them to be standalone “operators” under COPPA, subject to strict liability for COPPA violations.”
With a maximum penalty of $42,530 per violation, it is vital for small businesses to know if they are complying with COPPA, but I have yet to find anyone at the FTC who will provide any assistance or advice beyond just telling me to read COPPA. This law goes far beyond Blippi and My Little Pony. Keeping those seventh grade children in mind, a case could be made that most of the content online, from philosophy to porn, is at least partly “directed to children.” We desperately need clearly written guidelines, but so far, the FTC seems more focused on prosecuting us than on helping us comply with the law.
The truly sad part is that this is not doing anything to protect children's online privacy. Certain content is singled out as "directed to children", and in complying with all of the rules, far fewer people use the site. Instead they go to other content, which is not "directed to children", but is much more user friendly. Since the content is not "directed to children", children have no privacy protection. They are watching less appropriate content, and all of their information can still be collected and used. As it is being applied, COPPA is just too poorly written to offer any real protection to children's online privacy.
Have a wonder-filled day,
The Happy Scientist
On Twitter: @scientist_happy