On Friday, September 25, 2020, U.S. District Court Judge Nancy D. Freudenthal granted Google’s motion to dismiss in a privacy lawsuit concerning Google’s G Suite for Education. The court dismissed state law claims on the basis of declining to exercise jurisdiction, but granted Google’s motion to dismiss as to the Children’s Online Privacy Protection Act claim brought by the State of New Mexico.
New Mexico Attorney General Hector Balderas filed this lawsuit in February 2020, alleging that G Suite for Education (“GSFE”) spied on New Mexico students’ online activities for commercial purposes without notice to parents and without obtaining parental consent, in violation of the Children’s Online Privacy Protection Act (“COPPA”), the New Mexico Unfair Practices Act, and New Mexico common law. Balderas’s complaint sought injunctive relief and civil penalties, fees, and costs. Google moved to dismiss the complaint by arguing that “the Federal Trade Commission. . . allows online service providers like Google to use schools as agents and intermediaries for parental notice and consent.” The State countered by arguing that the court did not need to defer to Federal Trade Commission (“FTC”) guidance.
COPPA requires operators, such as Google, “to provide notice and obtain verifiable parental consent prior to collecting, using, or disclosing personal information from children. Such notice must be clearly and understandably written, complete, and must contain no unrelated, confusing, or contradictory materials.” The FTC published guidance in the form of a compliance guide noting that “schools may act as the parent’s agent and can consent to the collection of kids’ information on the parent’s behalf.” Google argued that it complied with COPPA consistent with FTC guidance because it was “using schools as intermediaries or the parent’s agent in the notice-and-consent process.” Therefore, according to Google, schools using GSFE services did receive notice of Google’s collection, use, and disclosure practices and thereby presumed that those schools obtained parental consent.
The court found that Google did obtain verifiable parental consent consistent with guidance published by the FTC. Specifically, applying Skidmore v. Swift & Co., 323 U.S. 134 (1944), the court extended deference to the FTC “because the FTC’s published guidance has ‘the power to persuade.'” The court reasoned that “[t]he FTC has extended a degree of care in the consideration of COPPA in the educational context. . . clarifying when the school may provide consent as an agent.” As such, the court found FTC guidance persuasive as to recognizing a proper notice and consent role for schools acting as intermediaries. The court granted the State leave to amend its complaint to state a COPPA claim for relief that is plausible on its face.
Additional Reading
US judge dismisses New Mexico privacy claims against Google, The Washington Post (September 28, 2020)
Balderas v. Google LLC (Case No. 1:2020cv00143)
Order on Google’s Motion to Dismiss and Motion for Judicial Notice in Balderas v. Google LLC
New Mexico Attorney General Sues Google for Alleged Child Privacy Violations, Justia Legal News (February 28, 2020)
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