Saturday, December 07, 2019

Why doesn't YouTube offer the FTC's "Mixed Audience" designator for channels or videos for COPPA?

Legal Eagle gave a detailed and speculative update on COPPA today, Dec. 7, and it’s almost 50 minues long.

LE uses the term “persistent identifiers” for cookies, and that’s really the term the FTC and the law uses now.

He also explains that the 2013 revision of COPPA section 312.2 allows a channel (or website – the FTC uses the terms interchangeably – a subdomain of a website like a blog on Blogger without unique domain is still a “website”) to be designated as a “Mixed Audience” but that YouTube’s use of persistent identifiers gathering data even from non-child (and probably non-monetized) sites makes this impossible.

He speculates that the age 13 minimum to have a YouTube account would suffice as an age-gate, except that YouTube allows people to view content free and gathers identifiers from these visitors as part of its business model.

Toward the end of the video, he provides an interesting discussion of the idea of a “child’s veto” of what adults can do as an example of a “heckler’s veto”, and maintains that the constitutionality of the FTC interpretation might fail of challenged in court (in a manner similar to COPA in 2007).

He also warns that some in Congress (and at the FTC) want to raise the age to like 15 and the relative modest fine of YouTube ($170 million) was approved only by a 3-2 vote.

There’s another more hopeful interpretation from another YouTubber who spoke to the FRC recently on my Movies blog.

Update: Monday, Dec. 9

Hoeg Law weighs in on Legal Eagle's analysis here.  The crux of it is that YouTube could have offered a mixed-audience identifier if it did require an age-gate (just one sign on) to view YouTube videos, which could be done through a normal Google account. Content that does not target kids but that might inadvertently get directed to kids ("family friendly") arguably needs this kind of verification before data is collected from viewers.  YouTube doesn't want friction for visitors just wanting to browse (neither do informational websites).  It could otherwise assume that all visitors who didn't sign in are under 13.  

Here is YouTube's official comment to the FTC today. 

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