Hubbard v. Google LLC

• Decision Date: 21 December 2020
• Docket Number: Case No. 19-cv-07016-BLF
• Citation: 508 F.Supp.3d 623
• Court: U.S. District Court — Northern District of California
• Parties: Nichole HUBBARD, et al., Plaintiffs, v. GOOGLE LLC, et al., Defendants.

508 F.Supp.3d 623

Nichole HUBBARD, et al., Plaintiffs,

v.GOOGLE LLC, et al., Defendants.

Case No. 19-cv-07016-BLF

United States District Court, N.D. California, San Jose Division.

Signed December 21, 2020

David S. Golub, Ian Wise Sloss, Steven Bloch, Silver Golub and Teitell LLP, Stamford, CT, Caroline Camille Corbitt, Jonathan Krasne Levine, Pritzker Levine LLP, Emeryville, CA, for Plaintiff Nichole Hubbard.

Caroline Camille Corbitt, Jonathan Krasne Levine, Pritzker Levine LLP, Emeryville, CA, for Plaintiffs Jay Goodwin, Bobbi Dishman, Renee Gilmore, Cara Jones, Justin Efros.

Edith Ramirez, Adam Cooke, Michelle A. Kisloff, Hogan Lovells US LLP, Washington, DC, Christopher J. Cox, Hogan Lovells US LLP, Menlo Park, CA, Helen Yiea Trac, Hogan Lovells US LLP, San Francisco, CA, for Defendants Google LLC, YouTube LLC.

Christopher Chorba, Jeremy Sokol Smith, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, Cassandra Lee Gaedt-Sheckter, Gibson, Dunn and Crutcher LLP, Palo Alto, CA, Edith Ramirez, Hogan Lovells, Washington, DC, Joshua H. Lerner, Gibson Dunn Crutcher LLP, San Francisco, CA, for Defendants Cartoon Network, Inc., Cartoon Network Studios, Inc.

Adya Simone Baker, Pro Hac Vice, Jeffrey G. Landis, ZwillGen PLLC, Edith Ramirez, Hogan Lovells, Washington, DC, Jui-Ting Anna Hsia, ZwillGen Law LLP, San Francisco, CA, for Defendants DreamWorks Animation LLC, DreamWorks Animation Television, LLC.

Jeremy Seth Goldman, Amy Rebecca Lawrence, Frankfurt Kurnit Klein Selz PC, Los Angeles, CA, Edith Ramirez, Hogan Lovells, Washington, DC, for Defendants Hasbro, Inc., Hasbro Studios LLC.

Jonathan Hugh Blavin, Attorney at Law Munger, Tolles & Olson, LLP, San Francisco, CA, Ariel Tal Teshuva, Jordan Dentler Segall, Nefi D. Acosta, Munger Tolles & Olson LLP, Los Angeles, CA, Edith Ramirez, Hogan Lovells, Washington, DC, for Defendant Mattel, Inc.

Edith Ramirez, Hogan Lovells, Washington, DC, Elana Rebecca Levine, Jacobson, Russell, Saltz, Nassim & de la Torre, LLP, Michael Jeffrey Saltz, Jacobson, Russell, Saltz & Fingerman LLP, Los Angeles, CA, for Defendant Remka, Inc.

Edith Ramirez, Hogan Lovells, Washington, DC, Elana Rebecca Levine, Jacobson, Russell, Saltz, Nassim & de la Torre, LLP, Los Angeles, CA, for Defendants RTR Production, LLC, RFR Entertainment, Inc.

Angel A. Garganta, Venable LLP, San Francisco, CA, Christina Marie Nordsten, Sarah E. Diamond, David Edward Fink, Venable LLP, Los Angeles, CA, Edith Ramirez, Hogan Lovells, Washington, DC, for Defendant Pocketwatch, Inc.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WITH LEAVE TO AMEND

[Re: ECF 93]

BETH LABSON FREEMAN, United States District Judge In 1998, Congress had the foresight to pass the Children's Online Privacy Protection Act ("COPPA"), recognizing both the potential and pitfalls to come with the proliferation of the internet. See 15 U.S.C. §§ 6501 et seq. Now, in 2020, the Court must decide if private citizens have a role in ensuring the law is followed by bringing claims under state laws.

Plaintiffs Nicole Hubbard, as parent and guardian of C.H., a minor; Cara Jones, as parent and guardian of E.J., N.J., A.J., and L.J, minors; Justin Efros, as parent and guardian of J.A.E. and J.R.E., minors; Renee Gilmore, as parent and guardian of M.W., a minor; Jay Goodwin, as parent and guardian of A.G., a minor; and Bobbi Dishman, as parent and guardian of C.D., a minor, ("Plaintiffs") bring this suit against Defendants Google LLC and YouTube LLC (collectively "Google") and Cartoon Network, Inc., Cartoon Network Studios, Inc., ChuChu TV Studios, CookieSwirlC, DreamWorks Animation LLC, DreamWorks Animation Television, LLC, Hasbro, Inc., Hasbro Studios LLC, Mattel, Inc., Remka, Inc., RTR Production, LLC, RFR Entertainment, Inc., and Pocketwatch, Inc. (collectively "Channel Owners"). Plaintiffs allege Defendants unlawfully violated the right to privacy and reasonable expectation of privacy of their children, who are all under 13 years of age and subject to COPPA's protections. Plaintiffs have exclusively brought state law claims against Defendants and cite violations of COPPA as the basis for liability in many instances.

Defendants have filed a motion to dismiss, primarily arguing that all of Plaintiffs’ claims are preempted, and, alternately, that each of Plaintiffs’ allegations fail to state a claim. See Mot., ECF 93. Plaintiffs oppose and argue that COPPA does not preempt the common law right to privacy, which has existed for centuries, as well as more modern consumer protection and privacy statutes and the right to privacy embedded in the California Constitution. See Opp'n, ECF 95. Defendants filed a reply brief in response. See Reply, ECF 98. This Court finds that Plaintiffs’ state law claims are expressly preempted by COPPA. The Court will DISMISS the action WITHOUT PREJUDICE, allowing Plaintiffs the opportunity to amend the complaint to allege facts showing that Defendants’ conduct amounts to more than solely a violation of COPPA's requirements.

I. BACKGROUND

Google operates the video sharing-platform YouTube ("YouTube platform"). Second. Am Compl. ("SAC") ¶ 2, ECF 92. The YouTube platform is accessible as a website, mobile application, or via an application on a set-top streaming device that can connect to a television. Id. Any individual or organization registered with YouTube, through a Google account, may upload videos they have created. Id. ¶ 2, 54. These videos are uploaded to that individual's or organization's "channel." Id. ¶ 2. Individuals do not have to register or sign in to view videos uploaded to the YouTube platform. Id. ¶ 3. There is no age verification required to view videos. Id.

The YouTube platform is "the #1 website regularly visited by kids." SAC ¶ 4. Defendants Mattel and Hasbro, classic toy brands, are among the Channel Owners who maintain and create content aimed at children. Id. Other Channel Owners do the same: for example, Defendant ChuChuTV's channel features cartoons and nursery rhymes. Id. ¶ 96. Defendants Remka, RTR Production, RFR Entertainment, and Pocketwatch together operate a channel, Ryan's World, featuring a nine-year-old boy unboxing toys and other children's products. Id. ¶ 98. This is the second-most popular YouTube channel, with approximately 22.5 million subscribers and over 33 billion views. Id. Plaintiffs detail the child-aimed content of the other Channel Owner Defendants as well. Id. ¶¶ 100-01; 103-04.

Google collects personal information from individuals who access the YouTube platform. SAC ¶ 57. Included in this information are what Google calls "unique identifiers." Id. ¶¶ 57-58. "Cookies," text files containing unique identifiers that are stored on an individual's browser, track websites a user has visited and the amount of time spent on those websites, among other things. Id. ¶ 59. "Persistent identifiers," data that cannot easily be reset, are additional unique identifiers. Id. ¶ 60. Examples of persistent identifiers include a user's IP address or their device's International Mobile Equipment Identity ("IMEI") number, which is a number assigned to every mobile phone and cannot be changed. Id. ¶ 61. When another website that uses Google's advertising services or analytics tools sends Google the same IP address or IMEI number that has previously visited YouTube, Google knows the individual has visited both websites. Id. ¶¶ 62, 64. Given the proliferation of Google's advertising services and analytics, studies indicate that Google can track individuals on over 80% of the internet. Id. ¶ 62. Google offers the following example: "if you watch videos about baking on YouTube, you may see more ads which relate to baking as you browse the web." Id. ¶ 65. This information that Google collects to develop an individual's user profile is extremely valuable to advertisers. Id. ¶ 63. In turn, Google can charge advertisers higher rates as it collects more data and improves its user profiles. Id.

If a YouTube platform channel achieves a certain level of success by passing a viewership threshold set by Google, a channel owner can choose to "monetize" the channel by allowing Google to run advertisements on the channel. Id. ¶ 67. Google and the Channel Owners share the advertising revenue, with 55% going to the Channel Owners and 45% remaining with Google. Id. Google and the Channel Owners have two types of advertising available to them: behavior targeting or contextual targeting. Id. ¶ 68. Behavior targeting, the default and most lucrative method, serves ads to individuals based on that user's personal information that Google has tracked across the web. Id. ¶¶ 68-69. Contextual targeting does not rely on personal information but rather matches ads with what Google determines is a channel's central theme. Id. ¶ 70.

COPPA, though, limits the amount of data Google is legally able to collect from children without parental consent. SAC ¶ 75. COPPA provides, in pertinent part, that,

It is unlawful for an operator of a website or online service directed to children, or any operator that has actual knowledge that it is collecting personal information from a child, to collect personal information from a child in a manner that violates the regulations prescribed [by the Federal Trade Commission].

15 U.S.C. § 6502(a). SAC ¶ 75. COPPA applies to any operator of a commercial website or online service directed to children under thirteen years of age that collects, uses, and/or discloses personal information from children. Id. ¶ 76. The Federal Trade Commission ("FTC") has interpreted COPPA's definition of "website or online service" to include individual channels on a general audience platform—according to the FTC, "content creators and channel owners" are both "standalone ‘operators’ under COPPA, subject to strict liability for COPPA violations." Id. ; Statement of Joseph J. Simons & Christine S. Wilson, Federal Trade Commission, Regarding FTC and People of the State of New York v. Google LLC and YouTube, LLC (Sept. 4, 2019),...