Post a video to Youtube, and you might get to enjoy your very own $42,530 fine.
If, that is, you check the wrong box. And by the way, the question of which box to check? It’s a trick question! But why would Youtube propagate confusion on this crucial topic?
Oh, they have a motive. And if you understand it, you’ll be better prepared to manage your new liabilities.
Due to misunderstanding, many Youtube creators are setting themselves up for potentially life-destroying financial risk, so I wanted to simplify and explain some of the insanity before January 1st, 2020.
The day the Machines attack.
Described by FTC bureaucrat Andrew Smith as “shooting fish in a barrel,” the government will be scouring Youtube with unblinking algorithms to automatically identify and administer fines to the owners of videos found to violate children’s protection laws. (COPPA)
On a per-video basis.
$42K PER VIDEO, charged not to Google, but to the content creators themselves.
Most creators are playing it safe, and marking their videos “For adults.” No kids, no problem- right? Can’t get in trouble for showing kids naughty things if you clarify it’s for adults only.
You, my friend, just fell for the trap.
Cartoon characters cussing, killing, and committing unspeakable acts upon one another?
Better mark it “For Kids” or the FTC could sue you for $42,000.
If you’re like me, that initially makes no sense whatsoever.
Isn’t the whole point of the FTC to protect kids from borderline content? Why would Youtube trick people into choosing the wrong option?
Everything becomes clear when you know the backstory.
It begins with Youtube breaking the law.
They were illegally, and knowingly, harvesting the data of children. And selling it. But the government finally woke up and caught them.
After a slap on the wrist ($170 million fine- for Google, that’s basically nothing) Youtube’s lawyers negotiated with the FTC to throw everyone under the bus except for Youtube.
Google pushed the liability for their own voracious data-harvesting onto YOU, and every individual cat-video-maker.
We didn’t ask to harvest viewer addresses, phone numbers, favorite colors, names. Google does all that without our say-so. Even when it’s illegal. Except now, they don’t pay the consequences for those crimes-
You and I do.
Hey, score one for corporate attorneys. That’s a pretty good trick.
Youtube gave everyone a toggle for their videos:
“Harvest data like a bloodthirsty Eldritch abomination,” or “Don’t harvest data like a bloodthirsty Eldritch abomination.”
If a kid happens to glance at your video, and it’s collecting data, the FTC might be coming for you.
Even if it’s explicitly intended for adults. Even if it’s got swearing, blood, gore, content warnings, you name it.
The FTC has made a new guideline; they specifically say it does not matter what the intent of the creator is, or the content of their work. If some boomer regulator or their super-smart AI robot thinks it looks “child attractive,” and Google’s data harvesting is turned on, your neck is on the chopping block.
Is the video clearly for adults? You’ll be paying your lawyer a small fortune to explain that fact in court.
Now, why would Youtube label this data-harvesting toggle so misleadingly? They make it seem more like a content filter or audience rating system- which it is NOT.
“Harvest” or “Don’t Harvest” is clear. Instead they say, “For Kids” or “Not for kids.”
(“Not for kids” turns on data harvesting, and is the option that makes you liable for Google’s activities. I THINK. If you’re confused, hire a lawyer, which is what Youtube tells creators to do in their reassuring explainer guide.) So why the needlessly confusing wording?
I have a little speculation, and it ain’t pretty.
Youtube is trying to trick creators into harvesting kids’ data. Why wouldn’t they?
Google makes money harvesting data. And now that they’ve pushed all the liability onto puny artists, there’s no reason for them to stop.
In fact, to ensure more Youtubers adopt the risk to harvest viewer data, Youtube is going out of their way to disincentivize the “For Kids” (no harvesting) setting.
If a video is toggled “For Kids,” Youtube will delete and disable comments, turn off notifications, remove the ability to add it to playlists, and generally do everything in their power to penalize and bury that video.
So if you want to play it safe?
Youtube doesn’t want you to play it safe. Jump in front of that bullet, and go bring your corporate masters their data. Or you can wither in obscurity.
Oh, and these FTC regulations apply to all content online, not just on youtube. So if a platform you post on is harvesting kids’ data without your knowledge, I guess thanks to Youtube’s lawyers, it’s our problem now. But it appears the FTC will be viewing Youtube as their primary hunting ground. (“The barrel,” as they called it.)
Maybe none of this will be so bad, in practice. Perhaps the FTC just made these laws and announcements for their own amusement, and they won’t crush anyone. Internet Historian makes a good case that this is all overblown, and let’s hope to hell he’s right.
Regarding COPPA pic.twitter.com/rTFhYu51GX
— Internet Historian (@NetHistorian) November 20, 2019
Regardless of how bad the enforcement turns out to be, content creators have innovative liabilities to be aware of. Regulatory risk management has become a new mandatory skill-set for artists like you and I.
So on that note, I am not a lawyer, and this article should not be construed as legal advice. Brush your teeth. Watch your back. Check the right box in our corporate dystopia.
And oh, yeah.
Responses to Frequently Asked Questions:
- It does not matter if your channel is monetized or not. All videos must be flagged correctly, no matter what.
- This is not COPPA’s fault or the government’s fault. Google broke the law flagrantly and the settlement agreement (separate from & superseding law) that Google & the FTC brokered together is what we are now legally bound to abide by, and that agreement, not COPPA, passes the liability & risk on to us.
- The FTC is currently taking public comments to help influence the future of COPPA. I recommend looking into this and participating: https://www.regulations.gov/document?D=FTC-2019-0054-0001 However, note that COPPA and the FTC vs. Google settlement agreement are legally distinct, though related, and updates to COPPA law will not reverse the settlement agreement and will not rescind the current YouTube actions.
They can in theory, at best, pave the way for a future amendment to the definition of “for kids” content as applies to YouTubers under this agreement. Don’t fall victim to assumption or misinformation and direct your ire in completely the inappropriate direction. Please watch & listen to the video or learn about the facts from the source. FTC & YouTube official links are in the video description.
Original FTC announcement document.
Over 89,000 comments and counting- for what that’s worth, here.