Episode 32: Kids Privacy in the Ad Space with Gary Kybel

Release Date: June 4, 2025

Overview

In Episode 32 of The Monopoly Report, host Alan Chappelle engages in a comprehensive discussion with Gary Kybel, a seasoned partner at Davis and Gilbert law firm. The episode delves into the intricate landscape of children's online privacy, examining legislative frameworks like COPPA and emerging state-level initiatives. Gary's extensive experience in the ad tech space provides listeners with deep insights into the evolving challenges and regulatory responses aimed at protecting minors in the digital advertising ecosystem.

1. Evolution of Children's Online Privacy Protection

Initial Framework: COPPA

• Gary Kybel reflects on the inception of the Children's Online Privacy Protection Act (COPPA) in 1998, highlighting its bipartisan support aimed at safeguarding children’s data in the nascent online environment.

  "Back in 1998, it was an easy idea to get people to coalesce around. Today, it's an easy issue when we talk about privacy issues. Children are not able to make proper decisions about how their information is used." [04:53]

• Alan Chappelle concurs, noting the shift from COPPA's original focus on basic data collection (like email addresses) to more complex concerns about profiling and targeted advertising.

Transition to COPPA 2.0

• The conversation shifts to the anticipated updates under COPPA 2.0, which aim to address modern technological advancements.

  "The FTC is trying to stay on top of the changes in technology to continue protecting children and adapt consent mechanisms in light of new technologies." [09:02]

• Gary explains the enhancements in COPPA 2.0, emphasizing stricter standards for behavioral advertising and more diverse methods for obtaining parental consent, such as mobile apps and text messaging.

  "COPPA is being updated to reflect behavioral advertising and modern consent methods, ensuring protection remains robust in today's digital landscape." [09:02]

2. Challenges with Defining Child-Directed Content

Ambiguities in "Child-Directed" Classification

• Alan raises the issue of COPPA's vague criteria for determining what constitutes a child-directed site or app.

  "How does the FTC decide that XYZ.com is child directed and ABC.com is not?" [10:15]

• Gary discusses the subjective nature of these determinations, using examples like general sports websites versus sites with content explicitly targeting children (e.g., a site with animated dinosaurs).

  "It's very subjective, and you can always argue what it means to be directed towards children." [12:31]

• The difficulty in creating objective standards comparable to other industries, such as alcoholic beverages, is highlighted, underscoring the complexities businesses face in compliance.

3. Impact of State-Level Privacy Laws

Fragmented Regulatory Landscape

• Alan points out the inconsistency across states, with some defining the age of a child as under 15, others under 16, and some under 18.

  "The hodgepodge of states, each with a different age requirement, is creating havoc for businesses trying to comply." [14:01]

• Gary elaborates on the logistical nightmares businesses encounter when navigating 50 different state laws, often leading to a preference for a national compliance strategy.

  "Most businesses have to adopt a national approach because managing 50 different standards is impractical." [15:30]

Age Appropriate Design Codes

• Discussion turns to specific state initiatives like California's Age Appropriate Design Code and similar laws in Maryland, Nebraska, and Vermont.

  "These codes require businesses to set privacy settings to the highest level by default for services likely accessed by children." [16:34]

• Gary underscores the subjective language in these laws, such as "reasonably likely" and "best interest," which complicates compliance and enforcement.

  "The standards are very subjective, making it challenging to implement consistent privacy protections." [16:34]

4. New York’s Safe for Kids Act and Social Media Regulation

Addressing Social Media Addiction

• Gary introduces New York's Safe for Kids Act (SAFE), which targets the addictive nature of social media algorithms designed to engage teenagers.

  "In New York, you're prohibited from having an addictive feed designed to keep under-18 users engaged." [19:41]

• Alan humorously contrasts New York's regulatory environment with Florida's laissez-faire stance, highlighting regional disparities in legislative approaches.

  "In Florida, it's the wild, wild west." [21:08]

5. Kids Online Safety Act (COSA) and Legislative Hurdles

Goals and Legislative Challenges

• Alan introduces the Kids Online Safety Act (COSA) and asks Gary to explain its objectives and the issues prompting its creation.

• Gary outlines COSA’s intent to build upon COPPA by raising the age threshold to under 16 and enhancing consent requirements.

  "COSA is bumping up the requirements under COPPA, recognizing that treating a child as someone just under 13 might not be adequate." [21:31]

• He expresses surprise at the legislative delays despite the bipartisan support for protecting children online.

  "Protecting children is a bipartisan issue, so I'm shocked that it hasn't passed yet." [22:56]

Business vs. Advocacy Perspectives

• Gary discusses the tension between the business community's desire for flexibility and the advocacy groups' push for stringent protections.

  "The business community is concerned about closing certain avenues for targeting teens, while advocates focus on comprehensive protection." [23:37]

• Alan echoes these sentiments, predicting that inconsistent state laws may eventually prompt comprehensive federal legislation, similar to the CAN-SPAM Act's preemption of state email laws.

  "The confusion from multiple state laws may drive the business community to seek federal preemption." [27:57]

6. Future of Children’s Privacy Regulations

Anticipated Legislative Developments

• Gary predicts that COPPA 2.0 is likely to pass before comprehensive laws like COSA or an omnibus federal privacy law.

  "I would put COPPA 2.0 at the top of the list for passage, though it’s up to Congress to take action." [24:54]

• He anticipates further state-level regulations focusing on varying age definitions and specific issues like social media addiction.

  "We'll see more states enact laws with different standards, complicating compliance for businesses." [26:07]

Call for Federal Standardization

• Gary emphasizes the necessity for federal legislation to streamline protections and preempt the patchwork of state laws.

  "A federal standard would prevent the complexity arising from 50 different state regulations." [28:45]

7. Brief Discussion on AI Regulation

Intersection of AI and Privacy Laws

• Alan briefly touches on the potential overlap between AI regulation and privacy laws, questioning the likelihood of passing stringent AI-related legislation.

  "The budget reconciliation bill aims to preempt state regulation on AI, but disagreement in the Senate may prevent its passage." [28:45]

• Gary voices skepticism about the immediate success of broad AI regulations, suggesting that more focused, narrower laws might emerge instead.

  "I don't see the outright moratorium passing, but more targeted legislation on specific AI issues could be forthcoming." [29:15]

8. Personal Insights

Gary Kybel’s Hobbies

• In a lighthearted exchange, Gary reveals his unique skill in playing the accordion, a hobby from his youth that occasionally resurfaces to amuse his family.

  "I know how to play the accordion. I take it out every couple of years and annoy the family with it." [32:24]

• Alan adds that Gary also plays the trumpet, humorously noting these as traits attractive to women.

  "Two things that attract women." [33:08]

Conclusion

Alan and Gary wrap up the episode by acknowledging the complexities and ongoing challenges in safeguarding children's privacy within the ad tech ecosystem. They touch upon the broader implications of government regulation on free speech and hint at future discussions on First Amendment concerns related to the Kids Online Safety Act. The episode underscores the critical need for balanced, coherent legislation that protects young users without stifling innovation or imposing untenable compliance burdens on businesses.

Notable Quotes

• “Privacy about data was an important issue that evolved over the early 2000s and now absolutely dominates every conversation in the digital media ecosystem.” — Gary Kybel [02:10]

• “COPPA is always an easy one for the FTC and then a popular one for the FTC.” — Gary Kybel [07:19]

• “The business community strongly has a concern about closing off permanently certain avenues and certain potential customers.” — Gary Kybel [24:41]

• “A federal standard would prevent the complexity arising from 50 different state regulations.” — Gary Kybel [28:45]

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