• by Wendy Davis  @wendyndavis, January 22, 2014

Google and Viacom are asking a federal judge to dismiss a potential class-action lawsuit accusing the companies of violating privacy laws at Nick.com, NickJr.com and NeoPets.com.

The lawsuit, brought on behalf of children under 13, stem from allegations that the companies place cookies on sites visited by kids. The complaint alleges that Viacom and Google "developed, implemented and profited from cookies" that tracked video viewing by children. The users allege that the companies are violating the federal wiretap law, various New Jersey and California laws and a federal statute prohibiting video rental services from disclosing users' personally identifiable information without their written consent.

The litigation grows out of six nearly identical separate complaints, filed in late 2012. The cases were consolidated and assigned to U.S. District Court Judge Stanley Chesler in Newark, N.J. The gist of all the lawsuits is that Viacom and Google's DoubleClick use cookies to collect information about users under 13, including the videos they watch. It's not apparent from the complaint why the lawsuit was brought only on behalf of users under 13; the wiretap law and video privacy law apply to all Web users, regardless of age.

Viacom says in its motion to dismiss the lawsuit that its cookies don't tie information about the videos people watch with their “real-world names and addresses.”

The company adds that cookies that are used to serve behaviorally targeted ads draw on anonymous information. “Even to the extent that a visitor to a Viacom Web site saw (for example) an ad for a certain movie on his computer screen because his computer previously had been used to run searches about that movie, there is no allegation that Viacom’s systems identify that user as John Smith of Newark, New Jersey,” the company says in papers filed last week.

The company also says that the users can't proceed in federal court without allegations that they were injured. Viacom adds that a potential benefit to itself -- such as the ability to serve targeted ads -- doesn't translate to an injury for the user.

“Plaintiffs’ theory of injury is that even an anonymous Web browser’s history has economic value, and that Viacom somehow 'injures' them by allegedly using that history to customize advertising on the Web sites plaintiffs enjoyed for free,” Viacom argues. “In other challenges to the use of cookies, that sort of 'injury' has been held constitutionally insufficient for purposes of standing because it is too abstract and speculative.”

Google also filed papers asking for the case to be dismissed. In addition to raising the same arguments as Viacom, Google also says that DoubleClick isn't a video rental service and, therefore, isn't covered by the federal video privacy law.

While several recent lawsuits have alleged that Web companies violate the video privacy law, this litigation appears to mark the first time that companies have been sued under that law solely for placing tracking cookies on computers.

Most of the other lawsuits alleged transmission of real names or pseudonyms that potentially could be linked to names. One pending case against Hulu involves the possible transmission of cookie-based information, but in that instance, the cookies allegedly were tied to registration data that includes real names as well as screen names.