Court Urged To Revive Children's Privacy Claims Against YouTube, Channel Operators

Lawyers for young YouTube users are urging a federal appellate court to reinstate a lawsuit accusing the video service -- along with Hasbro, the Cartoon Network and other YouTube channel operators -- of violating children's privacy by tracking them for ad purposes.

“This case involves the deliberate violation of the privacy rights of millions of young children -- many under the age of 5 -- by Google, YouTube and 11 of their business partners ... who surreptitiously obtained unlawful access to those children’s personal online identifying information and used it to track and profile their activities on the internet to develop highly lucrative 'behavioral advertising' targeted to each child,” lawyers for the children write in papers filed Monday with the 9th Circuit Court of Appeals.

They are appealing an order issued in July by U.S. District Court Judge Beth Labson Freeman in the Northern District of California. She ruled that the young web users' privacy claims were covered by the federal Children's Online Privacy Protection Act, which doesn't allow for private lawsuits. That law prohibits online companies from collecting personal data from children younger than 13, without their parents' permission.

The dispute dates to 2019, when California resident Nicole Hubbard sued YouTube and various companies that had channels on the video platform -- including Hasbro, the Cartoon Network, Mattel, and DreamWorks -- on behalf of her child. She alleged in a class-action complaint that her 5-year-old, identified only as “C.H.,” watched YouTube channels aimed at children -- including Ryan ToysReview, Hasbro's “My Little Pony Official,” and CookieSwirlC.

The lawsuit came 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.

Hubbard's complaint, later joined by other parents, focused on California state law claims, including “intrusion upon seclusion” -- a broad privacy concept that involves “highly offensive” conduct.

Google and the others argued to Freeman that gist of the claims stemmed from the federal Children's Online Privacy Protection Act, which allows for enforcement actions by the Federal Trade Commission and state officials, but not private citizens.

Lawyers for the children countered that their claims were rooted in norms surrounding privacy, and not the federal children's privacy law.

Freeman rejected the parents' arguments, writing that the allegations were “squarely covered, and preempted, by COPPA and its exclusive remedial scheme that vests enforcement authority in the FTC and state attorneys general.”

The children's lawyers are now asking the 9th Circuit to reverse Freeman's ruling. They argue that California state law supplements the federal children's privacy law, and that claims brought under California state law should have been allowed to proceed.

The lawyers argue that Freeman's decision “will effectively immunize website operators and providers of internet programming from liability, even where they have -- through intentional and systematic breaches of well-established state law privacy rights -- unlawfully obtained, and exploited for profit, the personal information of millions of vulnerable young children.”

“This immunity, nonsensically, would be made available to such persons because they have also violated parallel and overlapping provisions of COPPA,” they add. “Thus, COPPA -- a statute enacted for the specific purpose of protecting the online privacy of young children -- would become, under the district court’s decisions, a device for stripping such children of long-standing state law privacy protections.”

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