Hubbard v. Google LLC

Background

The plaintiffs are minors under thirteen, represented by guardians ad litem. They sued Google LLC, YouTube LLC, and multiple companies identified as channel owners. The plaintiffs alleged that Google, with the channel owners’ authorization and consent, tracked, profiled, and targeted children on YouTube to generate advertising revenue. The alleged information included Internet Protocol addresses, device serial numbers, and other persistent identifiers that could be used to recognize users over time and across websites.

The complaint asserted intrusion upon seclusion, violations of California’s Unfair Competition Law, unjust-enrichment claims under the laws of several states, consumer-protection claims under the laws of several states, and a claim under the California constitutional right to privacy. The plaintiffs also proposed a class consisting of people who were sixteen or younger when they used YouTube.

Legal standard

The court applied the standard for a motion to dismiss. A complaint must allege enough facts to make a claim for relief plausible, and the court generally accepts well-pleaded factual allegations as true and views them favorably to the nonmoving party. Conclusory statements and unreasonable inferences do not suffice.

COPPA preemption

The court relied on the Children’s Online Privacy Protection Act, or COPPA, which regulates the collection, use, and disclosure of personal information from children under thirteen. COPPA requires covered operators to provide disclosures and obtain verifiable parental consent for covered data collection. The court noted that COPPA includes an express preemption provision barring state or local liability for covered activities when that liability is inconsistent with how COPPA treats those activities.

The court adhered to its prior ruling that COPPA expressly preempted the plaintiffs’ state-law claims. It concluded that Congress assigned enforcement authority to the Federal Trade Commission and, in specified circumstances, state attorneys general, but did not create a private right of action under COPPA. Allowing private plaintiffs to pursue state-law liability for conduct regulated by COPPA would therefore be inconsistent with COPPA’s enforcement scheme.

The plaintiffs argued that their amended complaint alleged deception beyond COPPA’s scope. They relied on Google’s privacy policy, statements such as “Don’t be evil” and “Obey the Law,” and allegations that Google created an expectation of privacy while concealing its purpose of using children’s information for behavioral advertising. The court rejected that argument. It emphasized that the privacy policy disclosed that Google collected information from YouTube users, including viewing activity, browsing history, activity on third-party sites and applications using Google services, Internet Protocol addresses, cookies, and device identifiers. The plaintiffs also conceded that they had not seen the alleged misrepresentations and did not allege that their parents had seen them or would have stopped the children from using YouTube if different disclosures had been made.

The court distinguished a Third Circuit case involving a child-focused website that allegedly stated it collected no personal information from children, even though that statement was allegedly false. In this case, the court found that Google had disclosed data collection and that the plaintiffs had not adequately alleged deceptive conduct placing the defendants’ behavior outside COPPA’s regulation. It also stated that general corporate statements about obeying the law or avoiding evil were not actionable representations.

Proposed class and channel owners

Because all current named plaintiffs were under thirteen and their claims were preempted, the court held that they could not represent a proposed class of people up to age sixteen. The court allowed amendment if the plaintiffs could substitute proper named plaintiffs in the thirteen-to-sixteen age range.

The court further stated that the plaintiffs’ consumer-protection claims sounded in fraud and would have to satisfy Federal Rule of Civil Procedure 9(b), which requires fraud allegations to identify the “who, what, when, where, and how” of the alleged misconduct. The court did not dismiss the channel owners based on their separate arguments because it considered that issue premature after granting leave to amend.

Disposition

The court granted the defendants’ motion to dismiss with leave to amend. The plaintiffs were ordered to file an amended complaint no later than thirty days after the order was filed.