The FTC and YouTube Should Allow for a Mixed-Audience Exception^[1]

The FTC and YouTube are not allowing for a “mixed-audience” exception on YouTube. This is confusing and concerning because the Stipulated Order and COPPA Rule allow for this exception. It is urgent that the FTC and YouTube fix this problem before January 2020, when thousands of creators will unnecessarily lose personalized ads for their audience 13 and up.

We ask the FTC and YouTube to clarify and make changes to allow for the “mixed-audience” exception. This may save thousands of creators businesses and allow millions of users to view and participate on YouTube (with comments, notifications, etc.) as teens and adults on “mixed-audience” content. The FTC is now considering creators “operators,” under COPPA, but creators have no control over the operation. It will be disappointing if creators seek compliance with COPPA in the “mixed-audience” category, but the only thing preventing them is the FTC and YouTube failing to clarify and provide for this exception.

The Stipulated Order^[2] and the COPPA Rule^[3] are identical in defining a “Website or Online Service Directed to Children.” Both state, in part, that:

(3) A Web site or online service that is directed to children under the criteria set forth in paragraph (1) of this definition, but that does not target children as its primary audience, shall not be deemed directed to children if it:

(i) Does not collect personal information from any visitor prior to collecting age information; and

(ii) Prevents the collection, use, or disclosure of personal information from visitors who identify themselves as under age 13 without first complying with the notice and parental consent provisions of this part.^[4] 

The FTC explained why they carved out this exception:

[T]he Commission proposed revising the definition of Web site or online service directed to children to allow a subset of sites falling within that category an option not to treat all users as children. The proposed revision was sparked by a comment from The Walt Disney Company that urged the Commission to recognize that sites and services directed to children fall along a continuum and that those sites targeted to both children and others should be permitted to differentiate among users.

…

The Commission amends paragraph (3) of the definition to clarify when a child-directed site would be permitted to age-screen to differentiate among users. . . . Paragraph (3) codifies that a site or service that is directed to children, but that does not target children as its primary audience, may use an age screen in order to apply all of COPPA’s protections only to visitors who self-identify as under age 13.

…

[T]he Commission is now permitting this on sites or services that target children only as a secondary audience or to a lesser degree . . . .^[5]

Both the Stipulated Order and COPPA Rule acknowledge that an online service may fall under the criteria of “child-directed,” while not “target[ing] children as its primary audience.” In this situation the online service should not be deemed “child-directed,” as long as there is an appropriate age screen and prevention of collection of personal information from users identifying as under 13.

The FTC has expounded on the “mixed-audience” exception on its frequently asked questions page:

COPPA is not triggered by an adult uploading photos of children on a general audience site or in the non-child directed portion of a mixed-audience website.^[6]

. . .

[T]he amended Rule provides for a narrow exception for a site or service that may be directed to children under the criteria set forth in FAQ D.1 above, but that does not target children as its primary audience.  For instance, a child-directed site may target children under age 13, as well as parents or younger teens.^[7]

…

What evidence would I need to demonstrate whether children under age 13 are or are not the “primary target audience” for my website? As the operator, you should carefully analyze who your intended audience is, the actual audience, and in many instances, the likely audience for your site or service.  In making these determinations, you should keep in mind the factors for a “Web site or online service directed to children” . . . .^[8]

…

Although you may intend to operate a “teen service,” in reality, your site may attract a substantial number of children under 13, and thus may be considered to be a “Web site or online service directed to children” under the Rule. . . . If your service targets children as one of its audiences – even if children are not the primary audience – then your service is “directed to children.”

In circumstances where children are not the primary audience of your child-directed service, the amended Rule allows you to employ an age screen in order to provide COPPA’s protections to only those visitors who indicate they are under age 13. . . . . ^[9]

While the FTC referred to the “mixed-audience” exception as a “narrow exception,” thousands of YouTube creators likely fall under this exception. However, the FTC and YouTube appear to ignore this “mixed-audience” possibility in their recent explanations of what is “child-directed” content^[10] or videos “made for kids.”^[11] 

Creators should have an option to designate in the “mixed-audience” category, and teens and adults should be able to watch “mixed audience” content with all the normal YouTube features. As Malik Ducard (YouTube VP) repeated at the FTC workshop, adults should be treated as adults when using YouTube.^[12] Teens and adults should be able to watch “mixed-audience” content on YouTube Main, while children can still view “mixed-audience” content on YouTube Kids.

YouTube will have to make changes for the “mixed-audience” category to function legally on YouTube. Currently, anyone can access YouTube videos without logging in and going through an age screen. Users who are not logged in and age screened should by default be treated as children or not have access on YouTube Main when viewing “mixed-audience” content. But, users who are logged in and self-identified as 13 and older should have full access to all the normal YouTube features (comments, notifications, etc.) and receive personalized ads when viewing “mixed-audience” content.

YouTube may not have allowed for this exception because of concerns with their own liability. YouTube is likely overprotective and cautious to avoid further COPPA lawsuits from the FTC and individual states.

Perhaps YouTube is not providing for the “mixed-audience” exception because YouTube does not want to update its system to comply with the “mixed-audience” exception, especially when YouTube likely lacks clarity from the FTC on what changes would be adequate. YouTube does not want to change the nature of its system (like forcing everyone to log in before viewing), just to have the FTC shut it down.

Changes may also have to be made for the age screen to qualify for this exception.^[13] YouTube may not have enough clarity from the FTC on whether their current age screen is acceptable. YouTube has legitimate concerns about the adequacy of any age screen, because the FTC in its’ Revised Complaint disregarded the application of an age screen on channels directed to children.^[14] Perhaps YouTube is concerned the FTC would show similar disregard to its age screen for content designated as “mixed-audience” content. But, the FTC is bound by the COPPA Rule and Stipulated Order to allow for this “mixed-audience” exception where an appropriate age screen is applied before any personal information is collected from a user. The FTC needs to clarify whether YouTube’s current age screen is appropriate, for the “mixed-audience” exception.

Creators need significantly more clarity from the FTC on the difference between “child-directed,” “mixed-audience,” and “general-audience” content. Currently the FTC is providing examples on the extreme ends of the spectrum, but this is not very helpful when so much of YouTube content falls somewhere in the middle. Creators understand the difference between content that is primarily targeting a 3 year old as compared to targeting a 33 year old. But, nobody understands the difference between content that is targeting a 12 year old as compared to a 13 year old.

This FTC regulation of COPPA for creators is like a speed limit sign that says: “don’t go too fast.” Instead of providing a specific number, like 65 mph, the FTC is only providing creators vague guidelines that leave creators guessing. Then when creators come to the FTC for clarification, the FTC provides extreme examples like a car driving 5 mph is not going too fast, but a car driving 125 mph is going too fast. The FTC also provides “factors” that could equally apply to going too fast or not going too fast, and nobody knows how to define or weigh the factors. Creators are especially concerned because if creators are going “too fast” they face tickets up to $42,530 for each violation!

The Constitution requires the government provide clear regulations so citizens know whether the regulations apply to them or not.^[15] The FTC must clearly define the lines between these categories, not just provide examples on the extreme ends or “factors” that are undefined and unclear. Otherwise, this regulation is unconstitutionally vague and raises legitimate concerns of arbitrary enforcement (like shooting fish in a barrel).

The FTC’s inability to provide clarity is a strong enough reason for the FTC to reconsider regulating COPPA based on the nature of content. The FTC should pull back its regulation to its primary purpose, which was to put parents in control of protecting children’s personal information.^[16] The FTC should continue to call on legislators to make new laws to regulate those things online, rather than pushing this over 20 year-old law  beyond its bounds.