• by Wendy Davis  @wendyndavis, November 30, 2020

Aiming to revive claims against Google, New Mexico's top law enforcement official has appealed a trial judge's dismissal of a privacy lawsuit over the company's educational apps.

The original lawsuit, brought earlier this year by state Attorney General Hector Balderas, alleged that Google violated the federal Children's Online Privacy Protection Act -- which prohibits website operators from collecting data from children younger than 13 without parental consent.

Balderas alleged that Google “publicly positions Google Education as a benign tool that is an answer to resource-deprived schools nationwide,” but “secretly uses Google Education as a means to monitor children while they browse the internet, including in their private homes, on their private computers and phones, and on their private networks.”

Google argued the lawsuit should be dismissed for several reasons, including that it complied with guidance provided by the Federal Trade Commission, which is tasked with implementing the children's privacy law.

The FTC says schools consent in lieu of parents, as long as the information collected is used for a school-authorized educational purpose.

U.S. District Court Judge Nancy Freudenthal threw out the lawsuit in October. At the time, she said she was deferring to the FTC's position.

“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.

Balderas' appeal will be heard in the 10th Circuit Court of Appeals.

Among the lawyers working on the appeal is Jay Edelson, who has brought privacy lawsuits against numerous tech companies, including Facebook, Netflix and Google.