No preemption here. FTC backs state-law privacy protections for children

In an amicus brief filed this week, the Federal Trade Commission once again stood up for children’s privacy protections under state law that are consistent with federal law and its regulations.

The case, Jones v. Google, involved a group of children who, through their guardians ad litem, sued online video platform YouTube and its owner Google, LLC for collecting data and tracking their online behavior without parental consent. The claimants asserted claims under state law, including invasion of privacy, unjust enrichment, consumer protection violations, and unfair business practices.

The conduct alleged in the suit would also violate the federal Children’s Online Privacy Protection Act (COPPA) and the FTC’s regulations. In particular, it included the requirement that children-focused online services give notice and obtain consent before collecting information that would allow them to track children online.

A California district court dismissed the lawsuit, agreeing with Google’s argument that COPPA preempted the children’s state law claims. On appeal, the Ninth Circuit Court of Appeals reversed the trial court’s decision. After an analysis of COPPA’s preemption clause, which overrides state laws that are “inconsistent” with COPPA’s requirements, the court held it was sufficient that the state-law remedies were not an obstacle to, and were consistent with, COPPA.

COPPA’s preemption clause does not bar state-law causes of action that are parallel to, or proscribe the same conduct forbidden by, COPPA,” the court held. The case could go forward.

Google has asked the Ninth Circuit to reconsider its ruling, maintaining its argument that state-law claims involving children’s online privacy are preempted. The Ninth Circuit invited the FTC to weigh in. In its amicus brief, the agency strongly agreed with the court’s decision.

“The panel properly rejected Google’s interpretation, which would have the extreme effect of providing immunity from a wide swath of traditional state law claims that were never discussed in COPPA’s legislative history, much less swept aside altogether,” the agency’s brief said.

In a previous case in the same court against Facebook, the FTC similarly supported state law privacy protections in a dispute over COPPA’s impact on these laws.

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