Google can't dodge New Mexico AG's children's privacy claims
2/3/21 REUTERS LEGAL 21:30:18
Copyright (c) 2021 Thomson Reuters
Sara Merken
REUTERS LEGAL
February 3, 2021
A Google sign is shown at one of the company's office complexes in Irvine, California, U.S., July 27, 2020. REUTERS/Mike Blake
(Reuters) - Google is stuck facing children's privacy claims brought by the New Mexico attorney general, after a federal judge revisited an earlier decision at the company's request but didn't change the outcome at this stage of the case.
While U.S. District Judge Martha Vazquez in Santa Fe agreed with Google that her prior analysis "incorrectly discounted" the significance of a provision in federal children's privacy rules, New Mexico's complaint plausibly states a claim, allowing the allegations to proceed, she said in a Tuesday ruling.
Google didn't immediately respond to a request for comment on the decision, which partly granted a motion for reconsideration filed by the company's lawyers at Wilson Sonsini Goodrich & Rosati and Miller Stratvert.
"As children are facing increased safety risks to their cybersecurity, we are pleased with the judge's ruling and will continue to hold tech companies accountable," New Mexico AG Hector Balderas said in an emailed statement.
New Mexico had originally accused several technology companies of illegally gathering data and tracking kids' behavior online through their software embedded in apps made by developer Tiny Lab Productions, asserting Children's Online Privacy Protection Act (COPPA) and other claims.
While the court in April 2020 tossed the claims against the other ad networks, the ruling partly denied Google's motion to dismiss, holding that New Mexico's allegations make for a reasonable inference that Google had "actual knowledge of the child-directed nature of Tiny Lab's apps." COPPA prevents certain data collection by operators of websites and services directed to kids, or with actual knowledge they are collecting data from children.
Google asked the judge to reconsider the ruling, which it says had a "discrete point of clear legal error" in holding that there was no "relevant" legal distinction between knowing an app is primarily directed to kids and knowing one is directed to both kids and other audiences, called "mixed-audience" apps. The rule distinguishes between these types of apps and imposes liability on ad networks that either know the app is primarily directed at kids or that a mixed-audience app isn't age-screening users, Google said.
New Mexico opposed the motion.
The court's Tuesday ruling included a lengthy analysis of the COPPA rule and the "mixed-audience" provision, ultimately agreeing that the distinction between apps primarily targeted to children and those that are not is "relevant to the actual knowledge inquiry."
Although that warranted reconsideration, the court still found that New Mexico sufficiently alleged the company had actual knowledge the apps primarily target children, through its claims about the nature of the apps and Google's review of the apps' content. The judge found no basis to dismiss the COPPA claim or the intrusion upon seclusion claim.
The case is Balderas v. Tiny Lab Productions et al, U.S. District Court for the District of New Mexico, No. 1:18-cv-00854
For New Mexico: Brian McMath of the New Mexico Office of the Attorney General
For Google: Anthony Weibell of Wilson Sonsini Goodrich & Rosati and Richard Alvidrez of Miller Stratvert
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