• by Wendy Davis  @wendyndavis, January 27, 2020

The mother of a 5-year-old YouTube viewer has no grounds to sue either YouTube or channel operators for allegedly tracking young children in order to serve them with targeted ads, the companies contend in new court papers.

The complaint “should be dismissed in its entirety lawsuit,” the online video platform and channel operators -- including Hasbro, the Cartoon Network, Mattel, and DreamWorks --  argue in a motion filed last week with U.S. District Court Judge Beth Labson Freeman in San Jose.

The companies argue that the lawsuit, brought by California resident Nicole Hubbard, marks “an attempted end run” around the federal Children's Online Privacy Protection Act. That law prohibits certain forms of data collection from children, but doesn't allow for lawsuits by private parties.

The battle dates to last October, when Hubbard alleged in a class-action complaint that her child, identified only as “C.H.,” watched YouTube channels aimed at children -- including Ryan ToysReview, Hasbro's “My Little Pony Official,” and CookieSwirlC.

Hubbard sued around two months after Google agreed to pay $170 million to settle allegations by the Federal Trade Commission and New York Attorney General that YouTube violated the federal children's privacy law by collecting data from YouTube viewers younger than 13.

The Children's Online Privacy Protection Act prohibits companies from knowingly collecting personal information -- including web-browsing data that is used to target ads -- from children under 13, without their parents' permission.

The FTC alleged in its complaint against YouTube that the company hosts “numerous channels” directed to children. The agency added that Google promoted YouTube to Mattel, Hasbro and others as a “top destination” for kids.

Google did not admit to violating the law as part of the settlement.

Hubbard's claims include “intrusion upon seclusion” -- a broad privacy concept that involves “highly offensive” conduct -- and violations of California's unfair competition law.

But the companies argue in a joint motion seeking dismissal that the “core allegations” stem from the federal Children's Online Privacy Protection Act, which only allows enforcement actions by the Federal Trade Commission and state officials.

“In keeping with Congress’ mandate, the FTC has already taken action to address the alleged data practices plaintiff challenges by bringing an enforcement action against Google LLC and YouTube LLC ... in coordination with the New York state attorney general,” the companies write.

YouTube and the others add that the Children's Online Privacy Protection act overrides certain overlapping state law claims “regardless of how those claims are styled.”

The companies also argue that the allegations of online tracking don't support a claim for “intrusion upon seclusion.”

“Collection of online activity, geolocation, and browser/device information, particularly where as here it was in accordance with public disclosures, does not give rise to an expectation of privacy, much less meet the high standard of egregious conduct,” they argue.

YouTube and the channel operators add that a federal judge in South Carolina dismissed a lawsuit alleging that the YouTube violated young children's privacy by tracking them across the web for ad-targeting purposes.

U.S. District Court Judge Bruce Hendricks in Charleston, South Carolina said in that case that the allegations, even if true, wouldn't support the finding that Google violated state law.

The Cartoon Network, DreamWorks and Mattel also argued in separate papers that the case against them should be dismissed because Hubbard didn't allege that C.H. watched any of their videos.

Several years ago, New York state prosecuted Mattel, Hasbro and two other companies for allegedly allowing young website visitors to be tracked by third parties for ad-targeting purposes.