• by Wendy Davis  @wendyndavis, January 15, 2024

Lawyers representing young YouTube users are pressing a federal judge to allow them to proceed with a 5-year-old lawsuit over allegations that the platform -- along with channel operators including Cartoon Network, DreamWorks, Mattel and Hasbro -- violated children's privacy by tracking them in order to serve targeted ads.

In papers filed Thursday with U.S. District Court Judge Beth Labson Freeman in San Jose, counsel argues that Google and the operators “failed to implement any measures to safeguard the privacy of minors,” such as obtaining parental consent.

“Plaintiffs are minor children who themselves could not properly consent to Google’s profiling,” the attorneys write.

The argument comes in a battle dating 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.

Hubbard's 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 wrongly collected data via cookies from viewers younger than 13.

The complaint included a claim that Google engaged in “intrusion upon seclusion” -- a privacy charge that can be brought in California and several other states, and involves “highly offensive” conduct.

Freeman initially threw out the lawsuit, ruling it was foreclosed by the federal Children's Online Privacy Protection Act. That law prohibits website operators and apps from knowingly 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.

Last year, a panel of the 9th Circuit Court of Appeals reinstated the case, ruling that the federal children's privacy law doesn't prevent people from bringing private lawsuits for related privacy claims such as intrusion upon seclusion.

Soon after that decision, counsel alleged in an amended complaint that Google and other companies engaged in “highly offensive” violations of privacy norms in more than a dozen states, and violated consumer protection laws in various states.

The complaint also alleged that Hasbro and the other channel owners either knew or “should have known” that Google was tracking young children, and benefited from ad revenue allegedly associated with ads that harnessed tracking data.

“All defendants therefore acted with a common purpose and jointly economically benefited when the channel owner defendants’ content successfully lured children on to YouTube and Google showed these children behavioral targeted advertisements,” the complaint alleges.

Last month, Google and the other companies again asked Freeman to dismiss the case for numerous reasons.

Among other arguments, the companies said the plaintiffs couldn't show that the companies ran afoul of privacy standards -- in part because the alleged data collection and use “was clearly disclosed and involved data elements routinely captured as part of internet browsing activity.”

The channel operators also argue that they can't be held liable for allegedly acting in concert with Google unless they actually knew -- as opposed to should have known -- about the company's data collection practices.

On Thursday, lawyers for the parents urged Freeman to reject the companies' arguments and allow the case to proceed.

“Plaintiffs allege both that the data collected and used by defendants was sensitive and significant, and that the manner in which this data was collected violates social norms,” counsel wrote.

“Plaintiffs allege in detail why they had a reasonable expectation of privacy in viewing children’s content on YouTube, and why defendants’ tracking of their [personal information] in order to show them behavioral advertising was highly offensive,” they added.

They also argue they should be able to proceed against the channel operators because they allegedly “entered into agreements with Google and specifically chose to allow Google to show behavioral advertising to viewers.”

“Google set the trap; channel owners baited it; and they both illegally profited,” counsel writes.

Freeman is expected to hold a hearing in the matter on February 8.