Ninth Circuit breathes new life into children's class action lawsuit against Google for YouTube ad tracking

Google and YouTube previously paid a $170 million fine to the Federal Trade Commission for ad-tracking that targeted children under 13

Alphabet Inc.'s Google will have to face a class action lawsuit brought by children whose parents claimed the company tracked their kids' private information and YouTube activity without parental consent in order to send them targeted ads. 

The 9th Circuit Court of Appeals in Seattle on Wednesday reversed a lower court decision that dismissed the lawsuit, writing that the judge had incorrectly concluded the children's state law-based claims were preempted by the federal Children's Online Privacy Protection Act (COPPA). 

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COPPA gives the Federal Trade Commission (FTC) authority to regulate how websites collect personal identifying information from children under the age of 13. The statute includes language that bars companies from liability under state laws that are "inconsistent with the treatment of those activities or actions" prohibited by COPPA. 

The 2019 lawsuit alleged that Google and other companies that post content to YouTube violated COPPA and similar state laws by collecting data and tracking the online behavior of children without parental consent. But in July 2021, U.S District Judge Beth Labson Freeman in San Francisco said federal law preempted the plaintiffs' claims under California, Colorado, Indiana, Massachusetts, New Jersey and Tennessee law and dismissed the lawsuit. 

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Google

Lettering with the logo of Google is stuck on a glass pane in the press center. (Rolf Vennenbernd/picture alliance via Getty Images / Getty Images)

YouTube

POLAND - 2022/09/02: In this photo illustration a Youtube logo seen displayed on a smartphone.  ((Photo Illustration by Mateusz Slodkowski/SOPA Images/LightRocket via Getty Images) / Getty Images)

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The 9th Circuit panel reversed that decision 3-0, finding that state laws that supplement COPPA's regulations are not precluded by federal law. 

"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," Circuit Judge M. Margaret McKeown wrote for the unanimous court. 

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Boy holding a phone

28 May 2022, Berlin: A boy lies on a bench and opens YouTube on his cell phone. Photo: Annette Riedl/dpa (Photo by Annette Riedl/picture alliance via Getty Images) (Annette Riedl/picture alliance via Getty Images / Getty Images)

The circuit court remanded the case back to the district court.

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Google-owned YouTube previously paid a $170 million fine in a 2019 settlement with the FTC and New York Attorney General Letitia James over allegations that it violated COPPA by tracking children under the age of 13 and targeting them with ads.