• by Wendy Davis  @wendyndavis, March 9, 2023

A federal appeals court has asked the Federal Trade Commission to weigh in on whether parents can sue YouTube for allegedly tracking their young children for advertising purposes.

The 9th Circuit Court of Appeals ruled last December the federal Children's Online Privacy Protection Act doesn't prevent the parents from proceeding with their lawsuit. That federal law prohibits website operators and apps from collecting tracking data from children under 13, without parental consent.

That law also doesn't allow for private lawsuits; instead, the Children's Online Privacy Protection Act tasks the FTC and state attorneys general with enforcement.

The 9th Circuit's request to the FTC comes in a battle dating to 2019, when California resident Nicole Hubbard sued YouTube and various channel operators on behalf of her child. She alleged in a class-action complaint that her 5-year-old child watched YouTube channels aimed at young children, and that YouTube and other companies wrongly collected tracking data.

Her complaint, later joined by other parents, 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 Online Privacy Protection Act by collecting data from viewers younger than 13, without parental consent.

Among other claims, the parents said the alleged data collection amounted to “intrusion upon seclusion” -- a privacy claim that can be brought in California, and that involves “highly offensive” conduct.

Google argued the case should be dismissed, contending that the claims centered on the alleged violation of the federal children's privacy law, which doesn't allow for private lawsuits.

The parents countered that privacy claims such as intrusion upon seclusion are rooted in state standards, and therefore not overridden by the federal law.

A trial judge threw out the parents' lawsuit, but a three-judge panel of 9th Circuit Court of Appeals said the case should be reinstated. Those judges said the federal law doesn't preclude private lawsuits for intrusion upon seclusion.

Google recently urged the 9th Circuit to reconsider, arguing that the panel gave short shrift to the wording and purpose of the federal children's privacy law.

That statute “established a uniform nationwide standard governing the personal information online service providers can legally collect from children under 13, a standard critical to parents, children, and organizations that create and deliver online content and services for children,” Google wrote.

The 9th Circuit on Wednesday invited the FTC to file a friend-of-the-court brief outlining its position on whether the Children's Privacy Protection Act overrides the parents' claims. The appellate court gave the FTC until April 7 to decide whether to weigh in; if so, the agency must file a brief by May 20.