Google Squares Off With Minors in Argument Over Online Tracking Laws

When is a cookie not a cookie? Or, rather, when are third-party cookies – used to track users’ browsing habits online –okay to use, and when are they illegal? It’s the question at the heart of an ongoing multidistrict litigation against Google, Inc. over the company’s use of cookies to track the Internet activities of minors (children under 13).

The suits claim that both Google and Viacom have monitored and tracked minors’ online communication in violation of federal wiretapping laws.

The multidistrict litigation, which stems from a series of federally-filed lawsuits dating back to 2012, concerns Google’s practice of using third-party cookies to track Internet communications on certain websites. This is generally done to help companies target advertisements, and is widely accepted on the Internet. However, Google, along with Viacom Inc., allegedly tracked the activity of visitors to nick.com and nickjr.com, and in doing so tracked the online activities of minors – an important distinction under current laws. While third-party cookies are often tracked with a user’s consent (often implied after a site informs users cookies will be tracked), the lawsuit currently being heard in the U.S. District Court for the District of New Jersey argue that minors are unable to provide consent, and so any attempt to track their browsing habits is illegal. The suits claim that both Google and Viacom have monitored and tracked minors’ online communication in violation of federal wiretapping laws, the New Jersey Computer Related Offenses Act, the California Invasion of Privacy Act, and the Children’s Online Privacy Act.

It’s a claim that Google adamantly denies – but if minors never gave consent, and tracking without consent is illegal, how can the companies hope to win their case?

For Google, the answer’s easy: Minors, the company claimed last week, can give consent, and in fact have been doing so, rendering all cookie-tracking perfectly legal. The two companies have now filed a motion to dismiss the case on the grounds that the plaintiffs’ claims are inaccurate.

Google’s stance is an interesting one, but it’s one that plaintiffs dismiss out of hand. The motion to dismiss is being strongly opposed and, in their own motion filed March 3, plaintiffs argued that the companies had entirely missed the point of the suit if they thought tracking cookies was “a routine and consensual Internet practice,” as the companies had argued.

“Defendants repeatedly ignore the fact that this is a class of children,” plaintiffs said. Children, they added, cannot consent in a legal setting because the law does not recognize children under thirteen as being able to do so. If minors cannot consent in any meaningful way, then Google’s argument that obtaining consent and tracking the cookies of users is a widely accepted practice is rendered meaningless.

If consent can’t be given, then consent can’t be assumed – and Google and Viacom could be in big trouble.

The multidistrict litigation was formed in June 2013 when the JPML consolidated six lawsuits to a single court. Google and Viacom have already argued that the suits should be dismissed since no actual harm could be proved, with plaintiffs responding that the laws they allege the companies violated – for example, the Video Privacy Protection Act – do not depend on “monetary harm.” Google has also argued that the lawsuits are flawed for attacking the use of cookies, considered a standard practice for Internet companies. To that, plaintiffs argued that they were not concerned with the use of cookies, or the distinction between first- and third-party cookies (or, indeed, the use of cookies without adult consent), but were instead seeking to stop “the unauthorized use of third-party cookies to share the viewing habits and communications of minor children in violation of firmly embedded federal law.”

Are they arguing semantics, or a vital matter of law? In their motion to oppose dismissal, plaintiffs at one point appealed to the judge to help them defend “fundamental human rights” to privacy established by “over 100 years of common law.” Emotive, indeed, though it takes more than emotions to move a federal judge.

It will be interesting to see how the case progresses. On the face of it, it does seem that Google and Viacom could lose out: it would be a brave judge that took any action to impinge upon the protections of minors, or established that they were able to give consent so easily. On the other hand, can plaintiffs prove that minors’ activities were actively tracked and used – and if so, what’s the solution?

We’ll have to wait and see.

The case is In re: Nickelodeon Consumer Privacy Litigation, MDL number 2443, in the U.S. District Court for the District of New Jersey.