Court Grants Google’s Motion to Dismiss in New Mexico COPPA Suit

Late last week, Judge Nancy D. Freudenthal of the District of New Mexico granted defendant Google, LLC’s motion to dismiss claims against it regarding the State of New Mexico’s Children’s Online Privacy Protection Act (COPPA) and New Mexico Unfair Practices Act. Google was accused of “spy(ing)” on New Mexico students’ online habits without first trying to or obtaining parental consent as required by COPPA.

The case originated in February, when New Mexico’s attorney general filed a complaint against Google, arguing that its G Suite for Education (GSFE) product, which gives students access to web-based applications including Google’s Gmail, Calendar, Drive, Docs, and others, failed to notify users’ parents of its data collection practices and obtain their consent. 

Google filed its motion to dismiss in June, arguing, among other things, that New Mexico’s COPPA allegation did not state a claim upon which relief could be granted. In support of its motion, Google also requested that the court take judicial notice of several privacy-related documents including its GSFE privacy notice, user agreement, and “notice template for schools when gathering parent or guardian consent.”

Chiefly, Google contended that it satisfied its obligations under the law as set forth by the Federal Trade Commission (FTC), the agency which COPPA “directs to adopt regulations to implement the Act’s general privacy protections to prevent unfair or deceptive online information collection from or about children.” Google claimed that FTC guidance “allows online service providers like Google to use schools as agents and intermediaries for parental notice and consent,” the court explained.

Specifically, Google argued that it complied with its COPPA obligations because “schools who have ordered their GSFE services have received notice of Google’s collection, use and disclosure practices, and have authorized Google to collect personal information from children pursuant to the GSFE Agreement.”

The court first agreed to take judicial notice of the Google-provided documents. It then held that “the State’s complaint fails to state a claim for relief that Google violated COPPA in relying on schools to serve as the parent’s agent and/or to act as intermediaries between Google and parents in the notice and consent process.” In reaching this conclusion, the court sided with Google in determining to defer to FTC guidance on the matter, noting that the agency’s expertise should be heeded partly because it “has extended a degree of care in the consideration of COPPA in the educational context.”

The court further held that Google satisfied the COPPA notification and consent requirements by using schools as proxies. “Ultimately, the law only requires ‘any reasonable effort’ in providing notice to and obtaining consent from parents and, given that schools can provide notice in the scenario when personal information is collected for the use and benefit of the school, it seems persuasive that schools can obtain consent as an intermediary for the scenario when information is also collected by the operator for other commercial purpose,” the court reasoned.

The court declined to exercise jurisdiction over New Mexico’s pendant state law claims, citing Tenth Circuit precedent and “New Mexico’s interest in the remaining legal issues arising under its state and common law.” Finally, the court permitted the plaintiff to amend its COPPA claim by October 13.

New Mexico is represented by the New Mexico Office of the Attorney General, Carney Bates & Pulliam, PLLC, and Edelson PC. Google is represented by Miller Stratvert P.A. and Wilmer Cutler Pickering Hale and Dorr LLP.