Children’s User-Data Lawsuit to Proceed Against Google and YouTube As Appeals Court Overturns Dismissal

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An appeals court has officially overturned the dismissal of a lawsuit that accuses Google-owned YouTube of violating multiple states’ laws (as well as COPPA at the federal level) by collecting and tracking children’s user data without parental authorization.

A three-judge appeals panel just recently reversed the district-court dismissal of the relatively straightforward action. Filed against Google, YouTube, and high-profile companies that had uploaded content to the latter platform, the suit specifically maintains that the video-sharing service used “persistent identifiers” to perform the aforementioned data collection and tracking.

“Persistent identifier” is defined in the Children’s Online Privacy Protection Act as information (including IP addresses and cookies) “that can be used to recognize a user over time and across different Web sites or online services.” And per COPPA, websites cannot utilize the “persistent identifiers” of children – individuals under the age of 13 in this instance – to tap into user data without receiving parental consent.

But the plaintiffs allege that YouTube did just that, violating COPPA as well as various related state laws in California, Colorado, Indiana, Massachusetts, New Jersey, and Tennessee. The filing parties only brought claims under these state laws, however, which the presiding judge (upon dismissing the action) determined were preempted by COPPA.

Also worth reiterating is that Google and YouTube in 2019 agreed to pay the FTC $136 million for alleged COPPA violations (on top of forwarding $34 million to New York’s AG), and the settlement represented “the largest amount” that the FTC had “ever obtained in” connection with COPPA. The state-focused case that’s once again moving forward claims that Google had waited until January of 2020, months after finalizing the settlement, to retool YouTube to comply with COPPA.

Bearing in mind these pertinent background details, the initially noted three-judge appeals panel unanimously reversed the dismissal, finding that the suit (and the allegations under state law) doesn’t preempt COPPA.

“Hewing closely to the language of the preemption clause, we determine that Congress intended to preempt inconsistent state laws, not state laws that are consistent with COPPA’s substantive requirements, such as the state law causes of action pleaded in the complaint here,” Circuit Judge M. Margaret McKeown explained in her opinion.

“Since the bar on ‘inconsistent’ state laws implicitly preserves ‘consistent’ state substantive laws, it would be nonsensical to assume Congress intended to simultaneously preclude all state remedies for violations of those laws,” the legal text drives home. “If exercising state-law remedies does not stand as an obstacle to COPPA in purpose or effect, then those remedies are treatments consistent with COPPA.”

Besides the reversal of the dismissal, the appeals court remanded to the district court so that it “can consider in the first instance the alternative arguments for dismissal, to the extent those arguments were properly preserved.”