#COPPA & This Weeks Villain in the Internet’s Impending Doom Saga
Posted by Erin Carson published November 25, 2019 COPPA & This Weeks Villain in the Internet’s Impending Doom Saga
Video / Audio Version
We intend to remain up on Minds after January 2020 no matter what. We are also going to be on Free Speech Extremist and BitChute if you have trouble finding us. Our domain kekistanchronicle.com should also redirect to something useful.
I am not a lawyer, get a lawyer.
The following is my analysis provided for your convenience. I am merely providing a layman interpretation, as I have to codify this for my compliance, and exposure risk assessment anyway.
Seriously, get a lawyer.
The FTC
The Federal Trade Commission (FTC) of the United States is the agency burdened, by the US Congress, with the duty of enforcing the COPPA legislation described below.
The FTC decides how best this legislation should be interpreted and what regulations would be most suitable to enforce the intent of the legislation.
While the duty of interpreting legislative intent is held by the judicial branch of the U.S. Federal Government, it is a common practice of judges to defer to the regulatory agency responsible for it’s enforcement. While this subjects the FTC to a legal challenge on its implementation of the COPPA, the the FTC is not likely to lose that challenge.
COPPA; the Children’s Online Privacy Protection Act of 1998
The Children’s Online Privacy Protection Act of 1998 (COPPA) is a United States federal law, located at 15 U.S.C. §§ 6501–6506 (Pub.L. 105–277, 112 Stat. 2681-728, enacted October 21, 1998).
Taking effect April 21, 2000, it regulates the collection of personal information by persons or entities on the Internet subject to U.S. jurisdiction about children under 13 years of age. It specifies what should be in a privacy policy, when and how to seek verifiable consent from a parent or guardian, and what responsibilities an operator has to protect children’s privacy and safety online including restrictions relating to the marketing to those under 13.
While children under 13 can legally give out personal information with their parents’ permission, many websites, especially social media sites, prohibit those 12 and under from using their service altogether. This reduces compliance costs.
YouTube’s Folly
YouTube LLC of California has apparently been advising current and prospective advertisers that YouTube can place their ads in front of children. On its own that is not illegal, but YouTube openly claimed to be using illegally collected and retained data profiles they have about children under 13.
This is regarded as fact and is a major reason for YouTube’s settlement agreement with the FTC.
This information was, apparently brought to the attention of the FTC by family and child advocacy groups. This prompted both the civil action against YouTube LLC by the FTC and triggered an early review of the regulatory framework that the FTC has in place. This review was previously scheduled for the year 2023.
The existence of the YouTube Kids application, is immaterial at this point in light of the preceding evidence.
New Enforcement
Firstly it should be made clear, that he FTC has always held the authority to take these enforcement actions and to set new rules, up to the limits of the COPPA. This new enforcement action is punitive and corrective.
YouTube is being punished for open and knowing violation of the regulatory requirement. YouTube’s production partners are being afforded no further leniency either.
YouTube LLC itself, the agency managing a YouTube Channel, and the rights holder are each independently liable for the data collected by YouTube, themselves, TrueView, Google and any other authorized party.
The FTC has confirmed that it intends to pursue fines up to the legal maximum, currently approximately US$42,000 per uploaded video. The FTC has not announced pursuit of “Community posts”/comments, or video comments. That does not necessarily mean they can’t or won’t.
“YouTubers” agreed to the Terms of service. Consent has been given, and the actions of YouTube LLC on their behalf are outstanding liabilities without mitigating circumstance. Every “YouTuber,” myself included, has, knowingly or not, consented to be a participant in a criminal conspiracy which was unachievable with out our involvement. Tendering 45%+ of revenue to YouTube did not provide the service or protections many expected for the associated cost.
The FTC does not see us as victims of this betrayal of our trust, but as perpetrators. “Fish in a barrel, where ‘content creators’ are the fish and YouTube is the Barrel.” This is due to the benefit to YouTube users, big and small. Though, YouTube does not even display data to “Partners” about viewers under 13. Effectively memory holing the existence of children. The benefits of better YouTube services, and for many monetary profits, make YouTube’s users over the age of 12, not only conspirators, but benefactors of these violations, by the standards now being set forth by the FTC.
Though it would seem many advertisers were knowledgeable conspirators in this racket, advertisers are not currently being targeted by the FTC to my knowledge. In spite of producers (rights holders/”content creators”) being specifically targeted.
What violates the rules
Honestly, get a good team, including one or more lawyers and look this over for yourself. This is very serious. I’ll try to give you my take aways though.
Best I can tell, if your content is either suitable for ages 0-12 or contains things that would entice them, like colors animation and certain slang, or both – **YOU’RE FUCKED**.
Let me be clear. That is “OR”. Either one or both. Not “and”. Animations full of swears may not be safe. If the Archer TV show ran on YouTube with targeted ads; Adam Reed (the Creator), Floyd County Productions (the Production company), and YouTube LLC might each receive a fine of US$42,000 per episode. The parties may be barred by the FTC from conducting future business with one another as well. It is not clear if FX Networks may also be subject to fines, but Disney likely would not be directly liable.
For COPPA compliance claiming a video is “FOR Children” is “safer.” The FTC is interested in children’s content that is not marked and thus receives targeted ads when it should not.
Having a video marked as “for children” in the new year will remove comments, and is almost equivalent to having the video unlisted by YouTube unless things change, or I have misunderstood it. Whatever viewership you still receive will draw less revenue. About 10% of prior CPM might be a reasonable expectation.
Claiming a video is “for children” when it isn’t could put you in violation of YouTube’s Terms of Service, though. Getting it wrong in either direction can get you banned from YouTube and Google for life. Failing to claim it is for children can get you a US$42,000 fine, though. Good luck.
Do not take the proceeding as legal advice. Get a lawyer.
I’ve painted a dark picture, and it might not even be that bad. I really think you should take this seriously, though. We certainly are. ****
Foreigners on YouTube
It is not clear to what extent the jurisdiction of the United States may effect those non U.S. citizens living abroad.
YouTube’s operations by subsidiaries outside the United States is a distinct legal issue that I don’t know enough about.
YouTube bears some liability and might be compelled to garner your earnings to pay fines levied against you by the United States government. In fact all U.S. earning could potentially be garnered with out regard to how it is earned until your “debts” are paid in full, with applicable interest and fees.
If fined, or if other action is taken against you, you may be subjected to legal penalty by your government, or by other governments while traveling. Getting sued by “The People of the United States of America” isn’t usually something you should simply ignore. You might want to get some proper legal advice.
RICO & the Absolute Limit
If the FTC’s investigation were drawn to its most extreme points, a US$42,000+ fine per infraction is not the absolute limit of liability.
Theoretically, the claim that material gains are made by the act of fraud involving a criminal conspiracy, could subject all YouTube users to RICO prosecution.
This could allow for extradition to the United States, even from Switzerland.
This doesn’t seem to be a serious concern, nor a current pursuit by any government agency, but just a reminder that things can always get worse.
The Broader Impact
The new enforcement by the FTC is in response to the actions of YouTube, but is not specific to them. Many businesses are now, without question, subject to further liability.
Websites
Facebook pixel, Google analytics, and similar tracking services may collect information about children under 13 years of age. They are not necessarily liable for this.
It is the responsibility of a site operator to provide adequate notice of data collection and appropriate mechanisms for consent.
Alternatively, the site may be made unavailable to the general public at large. If children are prohibited from using your website or other Internet service, you don’t need a consent regime for example.
If you have a WordPress.com sub-domain, which is hosted by Automattic, you are not only required to comply with these rules yourself, but may be held liable for the actions Automattic takes while hosing your site.
If you have a “free” ad supported blog, and Automattic decides to not comply with the FTC rules, you may be considered complicit in that action. This may be particularly true depending on the contents of the terms of service.
I use the preceding example, because the odds are good that you are reading this on the Kekistan Chronicle WordPress blog. This could be true for almost any Internet service however. Am I liable for ads served on Twitter? Maybe.
Now it is usually the case that you have to profit from the interaction in order for the FTC to levy fines against you. It is a business regulator. Don’t assume your lack of profit, or even not-for-profit status exempts you some how. Get some serious legal advice if you are concerned.
Things that aren’t the World Wide Web
Online, includes the use of the Internet and services on it. It may also include facsimile or direct modem connection in some cases. Applications, like video games or word processors are often subject to the data collection rules. This may include e-mail lists.
Steam by Valve
Rights holders of games or other software and works of art distributed on Steam could be held legally liable if Steam’s recommendations system recommends your title to someone under the age of 13.
It is not clear if this can be avoided for non U.S. operations. At a minimum it would seem that Valve, the owner of the Steam distribution system, would have to do all of the following; place sales from non U.S. companies to non U.S. citizens, not residing in the United States, in an overseas subsidiary, operating at a non U.S. data center.
This scenario could apply to many businesses.
## What can or should I do?
Firstly, determine how COPPA and other FTC regulations effect you. Some foreign nationals not living with in the United States may not need to comply with these rules, depending on what you do on the Internet.
For most people though, it might be time to lawyer up. Seriously, this is not a time to blindly trust an article. pay a professional to guide you through this.
The FTC has a public comments period.
There are petitions you may be able to sign.
Brace for compliance, then comply.
What we’re doing
I will be working to shut down most of our Internet presence, by January 2020. The liabilities are now an unnecessary risk for a hobby project. This coincides with a general draw down of our operations across divisions. We are increasingly opposed to further investments in internet technology and services.
Specifically, we aim to be present on far fewer platforms. This includes a withdraw from Twitter, Tumblr, Medium, Facebook, and others. Admittedly we have already left some of these platforms for other reasons.
Shuttering unrelated operations. Poorly Reported will either be shutdown or divested. Any other, nonessential internet presence will be closed out. Kekistan News Wire service is no longer provided. Some articles have been deleted. This will even include old e-mail addresses.
We deleted all of our videos on YouTube and moved to BitChute, a British company. This does not absolve us of liability really, but it might be marginally safer than dealing with a U.S. firm. We hope anyway.
Yes, our presence on WordPress is in doubt. We already have two good alternatives lined up. There are dozens of bad options as well, including self hosting. Links are at the top of this article.