Gathering information doesn’t imply a violation of privacy, court says

Kid Claims Here’s an update to a case we covered in June 2018 – one Sirdonia Lashay Manigault-Johnson and her minor son, nicknamed “R.R.,” sued Google, YouTube and the companies’ parent entity, Alphabet, for allegedly “exfiltrating” her son’s personal information. Such “exfiltration” allegedly occurred when R.R. viewed videos on his mother’s mobile device that resulted in his personally identifying information going to the defendants.

The complaint asserted that YouTube failed to secure her consent and neglected to provide notice that it was gathering information on R.R., which she maintained was an intrusion upon seclusion in violation of the Children’s Online Privacy Protection Act (COPPA) and violations of California’s constitutional right to privacy and South Carolina’s instruction on seclusion protections.

Double Time

Alphabet, Google and YouTube moved to dismiss with two separate motions – the first claiming that Alphabet should be excused from the suit because, as the parent company, it was not responsible for the alleged misdeeds of its subsidiaries.

The second motion argued that the case needed to be tossed because it was an “attempted end run around [the] exclusive enforcement structure” of the Federal Trade Commission (FTC) – the chief enforcement agent of COPPA under the law. Because Manigault-Johnson was pursuing state claims, the entire case was pre-empted by federal law.

Trying to cover one more base, the motion also held that Manigault-Johnson failed to state claims under state law because the courts had created a record that the behavior in question did not “constitute a breach of social norms or an intrusion into intimate affairs sufficient to state a claim for violation of state privacy laws.”

The Takeaway

On March 31, the District of South Carolina came down firmly on the side of the Google gang.

First, the court’s order allowed Alphabet to bow out altogether; the court agreed with the company’s assertion “that Plaintiffs’ complaint only addresses specific conduct on the part of YouTube and Google and does not allege that Alphabet engaged in any independent wrongdoing.”

So much for Alphabet.

Of more interest to ad law enthusiasts – particularly those interested in the culpability of high-tech platforms in privacy disputes – was the court’s dismissal of Manigault-Johnson’s intrusion upon seclusion claims under both California and South Carolina law. The court found that although she alleged Google and YouTube had gathered information from children without parental consent, it was not “entirely clear” that this collection on its own was “sufficient to allege an intentional intrusion into a matter as to which Plaintiffs had an objectively reasonable expectation of privacy.”

Having maintained that the collection of information was not enough to support the California claims, the court wasn’t required to rule on the COPPA pre-emption argued by Google and YouTube. But it did anyway.

The court noted that the plaintiffs’ claims were predicated on violations of COPPA rather than on state law as the plaintiff asserted, and as such, “in the interest of creating a complete record, the Court simply notes … that Plaintiffs’ complaint does not accuse Defendants of conduct beyond that regulated by COPPA.”

And so went the rest of the case. Heads up to anyone facing down a case where, as the court put it, “Plaintiffs seek to use the vehicle of state law to privately enforce the provisions of COPPA.”