Google Asks 9th Cir. to Reconsider Child Privacy Law Preemption Ruling

A petition submitted late last week asked the Ninth Circuit to review a panel’s recent decision involving enforcement of the federal Children’s Online Privacy Protection Act (COPPA). Google and YouTube, appellees in the dispute, argue that the late December ruling deviates from long-standing Supreme Court and Ninth Circuit preemption principles and creates a split of authority.

The case alleges that prior to January 2020, when minors watched YouTube content, its parent company Google allegedly tracked, profiled, and targeted them for behavioral advertising purposes in violation of the federal law. The plaintiffs used state law including invasion of privacy and consumer protection causes of action as vehicles for bringing the suit.

The Northern District of California twice dismissed the complaint, finding that COPPA expressly preempts such state law claims. The Ninth Circuit disagreed, letting the state law claims stand as they did not pose an obstacle to COPPA in purpose or effect.

Last week’s petition said the decision was legally flawed and will have “profound consequences for creators and businesses nationwide.”

The appellees first argued that the panel misinterpreted COPPA by misapprehending who can enforce the law as contemplated by Congress. The legislature granted the Federal Trade Commission (FTC) primary oversight and enforcement authority, and secondarily state attorneys general so long as they coordinate with the FTC, the petition said. Permitting private claims like those asserted here “would  leave  defendants  facing  potential  liability,  including private damages, that is inconsistent with COPPA’s treatment of how activities and actions that allegedly violate the statute are to be redressed,” Google warned.

The petition also cautioned that the decision stands at odds with a 2016 Third Circuit ruling interpreting COPPA. Google highlighted how troubling it was that the Ninth Circuit’s opinion neither discussed nor cited that decision, though its ruling creates a split of authority.

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