Briefing Concludes in Child Online Privacy Appeal Against Google, YouTube and Others

Individuals representing their children ad lidem in a suit against Google LLC, Youtube LLC and “channel owners” such as The Cartoon Network, DreamWorks Animation, and Hasbro Studios, have had the final word in their case alleging “the deliberate violation of the privacy rights of millions of young children.” Monday’s reply brief asks the court to revive the case after a Northern District of California court rejected it on preemption grounds last July.

Specifically, the suit concerns allegations that Google, YouTube, and 11 of their business partners clandestinely obtained access to children’s personal online identifying information. Google then reportedly used the information to track and profile their online activities to develop highly lucrative “behavioral advertising” aimed at individual children.

According to the plaintiffs, the misconduct came to light in late 2019. They then filed suit, alleging damages and injunctive relief claims for invasion of privacy, unjust enrichment, consumer protection violations, and unfair business practices on behalf of themselves and other children in California, Colorado, Indiana, Massachusetts, New Jersey, and Tennessee.

Last summer, the court ruled against the plaintiffs in two separate opinions. Judge Beth Labson Freeman found the state law claims expressly preempted by the Children’s Online Privacy Protection Act (COPPA). In particular, the court ruled that COPPA assigns enforcement authority to the FTC and state attorneys general, thus precluding a private right of action. Judge Freeman further opined that the damages remedies provided by the state laws at issue were “inconsistent” with COPPA’s “remedial scheme.”

In August 2021, the plaintiffs appealed. Now, they argue that Google and YouTube’s primary argument is flawed. According to the brief, Google argues that because Congress granted the FTC authority to enforce COPPA, thereby “manifest[ing] an intent to preempt all state laws that afford remedies for violations of children’s privacy on the internet,” all state privacy laws, everyone accompanied by a remedy, are similarly preempted.

“This absurd outcome should be rejected, and the district court’s decision should be reversed,” the filing says. In support, the plaintiff-appellants explain that this argument ignores jurisprudence establishing that a federal statute’s assignment of enforcement authority to a regulatory agency does not, without more, support preemption.

Further, they contend that it disregards the COPPA’s plain language, and is contrary to “stablished principles of statutory construction.” Finally, the brief argues that if accepted, Google’s contention would have the undesirable effect of using a law designed to protect children from the ills of the internet to deprive them of “longstanding state law protections.”

The plaintiffs are represented by Pritzker Levine LLP, Silver Golub & Teitell LLP and Shapiro Haber & Urmy LLP. Google and YouTube are represented by Hogan Lovells US LLP.