• by Wendy Davis  @wendyndavis, December 11, 2024

A federal judge in California signaled that she is likely to require YouTube to face claims that it violated children's privacy by tracking them in order to serve targeted ads.

“The court is inclined to deny dismissal of the privacy claims because plaintiffs have sufficiently alleged that Google engaged in highly offensive conduct,” U.S. District Court Magistrate Judge Susan van Keulen said Wednesday in what she termed a “tentative” ruling.

Van Keulen added that the “offensive conduct” involved allegedly targeting children on YouTube, and violating the Children's Online Privacy Protection Act, which prohibits companies from knowingly collecting personal data -- including pseudonymous tracking data -- from children under 13 without parental consent.

She said she issued the tentative ruling “to facilitate a productive discussion of the issues” at a hearing scheduled for December 17, adding that she will “hear argument on any issue that either side wants to address” on that date.

The tentative ruling comes in a battle dating to 2019, when California resident Nicole Hubbard sued YouTube and various channel operators -- including Cartoon Network, DreamWorks, Mattel and Hasbro -- 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 tracking cookies from viewers younger than 13.

The parents' class-action 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.

U.S. District Court Judge Beth Labson Freeman in San Jose initially dismissed the complaint on the theory that it was foreclosed by the federal Children's Online Privacy Protection Act, which doesn't allow for private lawsuits.

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 claims rooted in state laws -- 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.

Google then renewed its request to dismiss the case, arguing that 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 argued that they couldn't be held liable for allegedly acting in concert with Google unless they actually knew about the company's data collection practices.

While van Keulen is poised to reject Google's argument, she signaled she will accept the channel operators' contention and dismiss the claims against them.

“The court is inclined to dismiss the channel owners from this action,” she wrote. “The channel owners did not collect plaintiffs’ data, and so they cannot be held directly liable for any of plaintiffs’ claims.”