• by Wendy Davis  @wendyndavis, September 29, 2020

Siding with Google, a federal judge has thrown out a privacy lawsuit brought by the New Mexico Attorney General over children's educational apps.

The ruling, issued late last week by U.S. District Court U.S. District Court Judge Nancy Freudenthal, allows Attorney General Hector Balderas to attempt to reformulate his claims and bring them again.

The decision stems from a lawsuit filed by Balderas in February, when he accused Google of violating the federal Children's Online Privacy Protection Act, along with various state laws. The federal children's privacy law prohibits website operators from collecting data from children younger than 13 -- including tracking data -- without parental consent.

Balderas claimed that Google violated representations that its educational products and services only collect education-related data.

Instead, according to Balderas, the company's Chromebooks are configured to upload a host of data, including web-browsing activity, searches and passwords.

Google urged the judge to dismiss the claims, arguing that it complied with guidance provided by the Federal Trade Commission, which is tasked with implementing the children's privacy law. That agency has said schools consent in lieu of parents, provided that the information is used for a school-authorized educational purpose.

“Schools, unlike Google, know who each student’s parents are and, unlike Google, are typically in regular contact with parents to obtain consent for a variety of other in-school activities. Schools therefore are well-positioned to obtain parental consent,” the company wrote in papers filed in June.

Freudenthal said in the ruling that she was deferring to the FTC's guidance in the matter.

“FTC guidance is persuasive in recognizing a proper notice and consent role for schools given that schools communicate with and obtain consent from parents and guardians they regularly contact for any number of other school-based activities,” she wrote.

The judge gave Balderas until October 13 to amend his claims.