These German YouTubers are Fighting to Figure Out How YouTube Works
They’re trying to use the full extent of the law to compel YouTube to lift the curtain on its algorithm
When the Irish government opened up its country to the burgeoning bevy of tech giants looking to find a home for their European headquarters by instigating a low corporation tax regime in the late 1990s and early 2000s, it probably didn’t imagine that its data protection agency, the Data Protection Commission (DPC), would become the frontline for some of the most contentious battles about how social media platforms work. But actions have consequences.
YouTube’s algorithm is an inscrutable black box that has been the subject of heated debate of late. (In the last two weeks we’ve twice written about the algorithm, once covering a controversial academic study of how it works, and another time how attention on the algorithm overlooks other issues about YouTube.) YouTube declines to explain how it works, resulting in an odd game of Chinese whispers any time you get more than three creators in the same room, sharing increasingly odd theories of how to please the algorithm as if it were some pagan god.
But a German YouTuber best known for firing crossbows and slingshots is trying to change that — and could end up in Irish court to do so.
Jörg Sprave is the creator behind the YouTube union, FairTube (which, full disclosure, FFWD has previously said stands little chance of succeeding). He’s currently battling to get the Irish DPC to compel YouTube to open up exactly how its algorithm works.
“We’re trying to find out what YouTube’s position is around the legal status of the classifications they assign to videos regarding monetization, recommendation, audience labelling and filtering — all these things we know happen,” says Michael “Six” Silberman, one of Sprave’s colleagues in the YouTube union. In part, we know how these things work thanks to the work by a collection of creators who spotted YouTube had accidentally begun leaking how each channel and video rated on an internal metric, the P-Score, late last year. (FFWD exclusively revealed the existence of the P-Score.) But the platform has little reason or compulsion to share how it works.
“YouTube are allowed to be opaque, moreso in America than Europe,” says Lilian Edwards, a professor of law at Newcastle University, who studies data protection.
“If you’re a private company, to some extent what you do is your own business,” she adds. “If you’re Coca-Cola, and you have a formula, you can keep it secret. It’s only if you’re a public body, a government body, that you have any obligation for real transparency. If you’re private, you can really do what you like. It’s a big problem.
“This whole legal area was framed around the fact the government had power, and therefore the government had the requirement to be transparent. But now the power is with the private bodies, the Googles, the YouTubes and the rest of it. What we need, some people say — and I would agree — is more transparency rights against private bodies.”
It’s for that reason Sprave and Silberman are taking the fight to YouTube. “My view is that’s simply an unacceptable answer,” says Silberman. “It’s kind of like in the U.S., if you drive down a highway and get pulled over, the officer says: ‘Do you know why I pulled you over’, and if you said: ‘I don’t know’, then the police officer said: ‘I don’t have to tell you, you’re going in jail,’ that’s insane. But that’s the situation on YouTube right now. Data protection law in Europe was designed to prevent that kind of situation.”
In May 2019, Sprave sent YouTube a subject access request (SAR), which allows users to see what kind of information a company holds on them under European Union law. “I request a copy of all labels or classifications assigned to all of my videos with respect to all relevant published and unpublished policies, including the Advertiser-friendly Content Guidelines, and a complete description of automated and/or human processes used to create those labels,” Sprave wrote in a letter seen by FFWD.
Three months later, YouTube replied through Google Ireland ltd. YouTube provided a rough, high-level explanation of how its algorithm works. “Upon upload, YouTube runs a variety of classifiers on a video to derive content classifications,” the company wrote. “These classifications are constantly updated as our classifier improves. YouTube leverages these classifications to enforce our content policies, personalize a user’s experience by recommending relevant content, and prevent spam, fraud, and abuse on the platform.”
But it wouldn’t go into more detail than that. “Visibility into these classifications would provide bad actors with the information and the opportunity to circumvent our safety guidelines, abuse our platform, and put our users, other YouTube creators, and advertisers at risk,” the company wrote. “Bad actors could obtain information on how their videos are categorized to test YouTube systems and reverse engineer how our proprietary systems work. And this could increase the visibility of harmful content on the YouTube platform, negatively impacting our users who may be exposed to such content. It would also have a negative impact on the advertising ecosystem on YouTube, if advertisers do not have confidence that YouTube can accurately identify and remove harmful content from the platform.” That would have a knock-on effect on creators’ ability to earn money.
Sprave and the FairTube campaign felt that answer wasn’t good enough. “Our understanding is all of this stuff is personal data — not only the classifications of your channel, but of your videos, because data protection case law and guidance of the responsible bodies that has been produced says a piece of data doesn’t have to be about you to be personal data. Any data whose processing impacts you is likely to be personal data, and if the purpose of creating or processing a piece of data is to influence your legal status or behaviour in some way is also likely to be personal data,” says Silberman.
And YouTube’s answer, they felt, didn’t definitively close the issue. In fact, they might have shot themselves in the foot. “What’s interesting about that response is they don’t say it’s not personal data and they don’t give reasons,” says Silberman, who is at pains to point out that YouTube does give users access to some data — just not enough under law, in his opinion. “I think it’s important because our view is all this data is personal data, and if it’s personal data YouTubers have a right to see it, and to contest it if they believe it’s inaccurate.”
Sprave appealed his case to the Irish DPC at the end of August 2019. The case has been kicked down the road as the DPC passed the investigation between offices — it now lies with the Cross Border Unit, who have contacted Google about his concerns.
“The Irish government have just given a lot more funding to the Irish DPC, but obviously not enough when they’re dealing with the tech giants of the entire world, because they all have their European headquarters in Dublin,” says Edwards.
Data protection expert Tim Turner believes the battle to get YouTube to unlock the secrets of how it works could prove difficult. “I think the applicant is trying to get something that is on the fringes of the definition of personal data,” he says. There’s also a Schrodinger’s data element to the whole thing, Turner reckons. “It is impossible to be certain whether he is entitled to what he’s asking for without seeing it.”
That said, Turner thinks that Silberman, Sprave and their colleagues could stand a chance. “Google’s reply is nonsensical,” he says. The applicant is “completely correct to say that [YouTube] haven’t provided him with a valid reply, and so he has a wholly valid complaint and the Data Protection Commission must investigate it. Google’s approach here is incredibly wrong-headed and tactically a mistake because the investigation starts from them being plainly in the wrong about the way they have responded.”
Silberman is keen to point out that he holds no enmity against YouTube. “It’s just that they have so much going on and their attitude is they don’t want to reveal stuff because they’ll have to adjust things,” he says. “I think they’re just hoping they can delay long enough so they don’t have to deal with it. But they owe creators better.”
The Irish Data Protection Commission will soon have to decide if they agree.