While video game headlines have been squarely focused on the intense regulatory scrutiny of Microsoft’s record-shattering acquisition of Activision Blizzard, the FTC more quietly upended gaming’s legal landscape through its settlement with Epic Games, Inc. for its Children’s Online Privacy Protection Act (COPPA) violations within Fortnite, a massively popular multiplayer shooting game. Epic will pay a record-breaking $275 million fine after a finding that Fortnite is a “child-directed” online service. The FTC is sending a clear message to video game businesses that they will be expected to comply with COPPA’s provisions, including and especially with its requirements that parents must consent before the company can collect the data of children under thirteen years old. The FTC has also ordered Epic to disable voice chat and text communication within Fortnite for users under age thirteen without affirmative parental consent. Through this sweeping action, the FTC touches upon a fundamental question: when it comes to video games, what counts as being “child-directed”?
COPPA puts forth a list of factors the FTC is permitted to consider in evaluating whether a service is “child-oriented.” Two of those factors are “empirical evidence regarding audience composition,” and “evidence regarding the intended audience.” Empirical evidence was a significant component of the FTC’s complaint, finding that 53% of children between ten and twelve play Fortnite weekly. Epic, however, zeroed in on the “intended audience” consideration, arguing that “Fortnite is rated Teen and is directed at an older teen and college-aged audience” and bemoaning that “[d]evelopers who create a teen-rated or mature-rated game can no longer assume that it won’t be deemed to be directed to children. . . . Younger players who are interested in higher-rated games can find ways to access them.”
Epic’s claim is simultaneously laughable and somewhat sympathetic. It is laughable given Fortnite’s obvious and deliberate appeal to children. Its cartoony graphics, social spaces, and free-to-play nature have, in alignment with the FTC’s findings, nurtured a massive community of under-13 gamers. Fortnite is often joked about in the gaming community as a sort of kindergarten, and any middle school teacher knows the prolific “Fortnite dances” that occur on the playground. Fortnite-branded toys, clearly aimed towards young children, can be found in the toy section of Target.
Epic’s plight is also somewhat sympathetic, however, given that they have in some ways signaled that Fortnite is not intended for young children (even if they haven’t tried to turn away the children who flock to the game). Fortnite is rated “T for teen” by the ESRB, indicating that the game is meant for those thirteen and up, and a large bold “T” can be found displayed prominently on both physical copies of the game and on digital storefronts. Fortnite hosts regular crossover events, often with IP obviously directed at adults like John Wick, The Witcher, and The Evil Dead. The game features semi-realistic military weapons all over its art and advertising.
Epic is also right that younger players can virtually always find creative workarounds to play the games they want to play. Part of the fault lies with parents, who are often not as discerning as they should be when it comes to video games. A UK study found that 86% of parents don’t follow age restrictions on video games, and GameStop employees have often told me of their failed attempts to prevent ignorant parents from buying M-rated games (intended only for adults) for their kids. Children can also be sneaky and creative, lying their way past age verification (as I, and all my friends, did as kids to access our favorite games), finding loopholes in parental controls, and “borrowing” their parents’ credit cards.
This puts game developers in an uncertain spot. Even if they do everything right in marketing their games towards older teens and adults, their games might still be faced with an onslaught of young players. The degree to which the FTC weighs the de facto age of a game’s audience potentially implicates games far beyond Fortnite, both because Fortnite utilizes design features that are commonplace in many free-to-play games (and that are presumably less problematic when employed on adults), and because Fornite is hardly the only T- or M-rated game with a sizable young audience.
The safe solution is for all online games to be COPPA compliant even if they’re directed towards adults, but complying with additional regulations might be onerous for small developers or might fundamentally change the nature of the game’s community (e.g., games where voice chat is enabled by default, arguably serving as a “signal” that the game is meant to be played socially through cooperation and communication). The FTC ought to provide more thorough guidelines as to when they’ll consider a game to be “child-directed,” else game developers need to accept yet another nexus of regulatory uncertainty.
 Lesley Fair, Record-Setting FTC Settlements with Fortnite Owner Epic Games Are the Latest “Battle Royale” Against Violations of Kids’ Privacy and Use of Digital Dark Patterns, Fed. Trade Comm’n (Dec. 19, 2022), https://www.ftc.gov/business-guidance/blog/2022/12/record-setting-ftc-settlements-fortnite-owner-epic-games-are-latest-battle-royale-against-violations [https://perma.cc/HP3Z-GFKH] [http://web.archive.org/web/20230204164737/https://www.ftc.gov/business-guidance/blog/2022/12/record-setting-ftc-settlements-fortnite-owner-epic-games-are-latest-battle-royale-against-violations].
 Children’s Online Privacy Protection Rule, 16 C.F.R. § 312.2 (2013).
 Lesley Fair, Record-setting FTC Settlements with Fortnite Owner Epic Games Are the Latest “Battle Royale” Against Violations of Kids’ Privacy and Use of Digital Dark Patterns, Fed. Trade Comm’n (Dec. 19, 2022), https://www.ftc.gov/business-guidance/blog/2022/12/record-setting-ftc-settlements-fortnite-owner-epic-games-are-latest-battle-royale-against-violations.
 Epic FTC Settlement and Moving Beyond Long-Standing Industry Practices, Epic Games (Dec. 19, 2022), https://www.epicgames.com/site/en-US/news/epic-ftc-settlement-and-moving-beyond-long-standing-industry-practices [https://perma.cc/8LE7-VADD] [http://web.archive.org/web/20230204164533/https://www.youtube.com/watch?v=82oJt2enz8A].
 See, e.g., Jason Gastrow, Fortnite Daycare, YouTube (Feb. 19, 2022), https://www.youtube.com/watch?v=82oJt2enz8A [https://perma.cc/W4CQ-Y4Z9] [http://web.archive.org/web/20230204164533/https://www.youtube.com/watch?v=82oJt2enz8A]; see also Jason Gastow, Fortnite Daycare 2, YouTube (July 22, 2022), https://www.youtube.com/watch?v=CyI7G8G8-qg [https://perma.cc/2935-MAWM] [http://web.archive.org/web/20230204164205/https://www.youtube.com/watch?v=CyI7G8G8-qg].
 Search results for “Fortnite” in category “Toys”, Target, https://www.target.com/s?searchTerm=fortnite&sortBy=relevance&category=5xtb0 [https://perma.cc/H8BY-QM38] [http://web.archive.org/web/20230204163903/https://www.target.com/s?searchTerm=fortnite&sortBy=relevance&category=5xtb0] (last visited Feb. 4, 2023).
 See, e.g., Fortnite, Epic Games Store, https://store.epicgames.com/en-US/p/fortnite (last visited Feb. 4, 2023).
 Alex, Tsiaoussidis, Every Single Fortnite Collab & Crossover in Battle Royale’s History, Dexerto (Feb. 3, 2023), https://www.dexerto.com/fortnite/every-fortnite-collab-crossover-battle-royale-history-1645672/ [https://perma.cc/5QDC-MBXF] [http://web.archive.org/web/20230204163527/https://www.dexerto.com/fortnite/every-fortnite-collab-crossover-battle-royale-history-1645672/].
 Majority of Parents Let Their Kids Play 18-Rated Games Reveals Survey, Metro (July 13, 2018), https://metro.co.uk/2018/07/13/majority-parents-let-kids-play-18-rated-games-reveals-survey-7712123/ [http://web.archive.org/web/20230204163103/https://metro.co.uk/2018/07/13/majority-parents-let-kids-play-18-rated-games-reveals-survey-7712123/]. Though there isn’t any comparable study of parents in the US, I wouldn’t be surprised if the numbers were comparable here, especially given that the European PEGI system of rating games is arguably better at signaling the age-appropriateness than the American ESRB system.
 See Andrew K. Przybylski & Netta Weinstein, Violent Video Game Engagement Is Not Associated with Adolescents’ Aggressive Behaviour: Evidence From a Registered Report, 6 Royal S’y Open Science (2019), https://doi.org/10.1098/rsos.171474 (finding that 48.8% of adolescent girls and 68% of adolescent boys played a video game categorized as “violent” by PEGI or ESRB ratings at least once in the past month). Though there isn’t a lot of data about children under 13 specifically (the critical age at which COPPA regulations apply), play any popular multiplayer game like Call of Duty, Grand Theft Auto Online, League of Legends, and Counterstrike: Global Offensive, and you are likely to encounter players whose ages are far below the ESRB recommendation.