• by Wendy Davis  @wendyndavis, November 8, 2023

New York and Minnesota YouTube users are pressing an appeals court to reinstate a lawsuit claiming Google violated state privacy laws by retaining video viewing records.

In papers filed this week with the 9th Circuit Court of Appeals, lawyers for the YouTube users argue that New York and Minnesota privacy laws unambiguously allow people to sue companies that retain video renters' credit card information and information about videos they watched.

Both Minnesota and New York ban disclosure of viewing data without consent, and require companies to promptly destroy identifiable information as soon as practical, with an outer limit of one year from the time the data is no longer needed.

Last October, Minneapolis resident Burke Minahan alleged in a class-action complaint that Google violated unlawfully kept records of the videos he streamed. Minahan's suit was later joined by New York residents, who alleged the company was violating a New York law.

U.S. District Court Judge Yvonne Gonzalez Rogers in the Northern District of California threw out the complaint earlier this year, ruling that laws in New York and Minnesota only authorize lawsuits against companies that disclose consumers' information, and not over a failure to shed the records.

The YouTube users' attorneys are asking the 9th Circuit to reject that conclusion. Among other arguments, they say the state lawmakers “clearly provided for their citizens to bring a private right of action for violations of any of the operative provisions” of the video privacy laws.

“There is nothing ambiguous about the language in these provisions, nor is there anything out of the ordinary about a statute providing a private right of action for violations of any or all of its operative provisions,” they add.

They also argue that lawsuits over failing to delete records is consistent with the purpose of the privacy statutes.

“The reasoning for providing a private right of action for failing to destroy personally identifiable information does not come out of left field,” counsel writes. “A holder of sensitive information cannot disclose data it does not retain.”

Google isn't the only company to face litigation for allegedly retaining video viewing records.

Apple and Amazon were also sued for allegedly violating New York and Minnesota privacy laws. Trial judges dismissed the complaints against both companies, but users who sued Apple recently asked the 9th Circuit to revive their claims. It's not yet clear whether the plaintiffs who sued Amazon plan to appeal.