• by Wendy Davis  @wendyndavis, May 22, 2023

The federal children's privacy law doesn't prevent parents from suing YouTube for allegedly violating California laws by tracking young children, the Federal Trade Commission is telling an appeals court.

The federal Children's Online Privacy Protection Act overrides claims rooted in inconsistent state laws, but doesn't override state-law claims that parallel the federal law, the agency wrote in a friend-of-the-court brief filed over the weekend with the 9th Circuit Court of Appeals.

“Congress did not intend to wholly foreclose state protection of children’s online privacy,” the FTC wrote. The agency said it agreed with a ruling issued last December by a 9th Circuit panel, which held that the federal children's privacy law doesn't foreclose the parents' lawsuit against Google.

The parents' case dates to 2019, when California resident Nicole Hubbard sued YouTube and various channel operators on behalf of her 5-year-old child, who viewed YouTube channels aimed at young children.

Her complaint, later joined by other parents, came around two months after Google agreed to pay $170 million to settle allegations by the FTC and New York Attorney General that YouTube wrongly collected data via cookies from viewers younger than 13.

The parents alleged in their class-action complaint that Google engaged in “intrusion upon seclusion” -- a privacy claim that can be brought in California, and that involves “highly offensive” conduct.

Google contended that the parents' claim should be dismissed on the grounds that the federal Children's Online Privacy Protection Act forecloses private lawsuits over alleged violations of children's privacy.

That federal law prohibits website operators and apps from collecting tracking data from children under 13, without parental consent. It also doesn't allow for private lawsuits; instead, the Children's Online Privacy Protection Act tasks the FTC and state attorneys general with enforcement.

A trial judge agreed with Google and threw out the parents' lawsuit, but a three-judge appellate panel said last year the case should be reinstated. Those judges said the federal law doesn't preclude private lawsuits for intrusion upon seclusion.

Google then asked the entire 9th Circuit to reconsider the matter, arguing that the appellate judges on the initial panel overlooked the purpose of the federal children's privacy law.

The federal law “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.

In March, the 9th Circuit asked the FTC to weigh in on the interpretation of the Children's Online Privacy Protection Act. While the agency's views could inform the appellate judges' decision, they won't necessarily go along with the FTC's interpretation. 

The agency said it disagrees with Google, writing that the company's interpretation of the federal law would override “all state claims involving children's online privacy.”

“Nothing in the statute’s text, purpose, or legislative history supports such sweeping preemption,” the agency wrote.

Questions about the federal children's privacy law's effect on state laws are coming up in other disputes, including a lawsuit challenging California's new Age-Appropriate Design Code, which imposes new restrictions on how web companies treat minors' data.

NetChoice, which is seeking to block that law, says it's overriden by the federal Children's Online Privacy Act, among other arguments.

The FTC hasn't officially weighed in on that matter, but its friend-of-the-court brief in the dispute involving YouTube suggests the agency also believes the federal law doesn't override the California Age-Appropriate Design Code.

Chris Marchese, director of the NetChoice Litigation Center, said through a spokesperson: "We are aware of the FTC's incorrect interpretation, but because our litigation is ongoing, that is all we can say."