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According to a survey of 2,000 adults by the Center of Digital Democracy, 82 percent agree with the proposition that before advertisers put tracking software on a child’s computer, advertisers should receive the parent’s permission.
Despite the very strong sentiment in favor of protecting kids’ privacy, which recently provoked President Barack Obama to propose a new Student Digital Privacy Act, a federal judge in New Jersey on Tuesday dismissed a $5 million class action lawsuit that accused Viacom and Google of planting digital “cookies” on the computers of children who viewed videos on Nickelodeon’s website.
The lawsuit aimed to punish Viacom and Google for data collection conducted in the interest of selling advertising. The plaintiffs asserted the companies violated the Video Privacy Protection Act (VPPA) — a law that prohibits the knowing and non-consensual disclosure of “personally identifiable information”— as well as New Jersey statutes aimed at preventing computer hacking and privacy intrusion.
But in his opinion, U.S. District Judge Stanley Chesler finds that the plaintiffs haven’t alleged a plausible theory on how the identities of children were compromised and also declares that the lawsuit falls short in detailing “highly offensive” conduct on the part of Viacom and Google.
According to the amended complaint (read it here), when children go to Nick.com, Viacom places tracking cookies on their computer or device. Viacom is said to permit Google to place its own third-party cookies there too, to track URLs visited, browser settings, detailed video viewing histories and other information, such as communications with Nick.com. Additionally, children who go to Nick.com often register profiles that detail such information as their gender and birthday. Each is assigned a code name based on the information.
This might be true, but the plaintiffs are contending with the reality that since the VPPA was adopted in 1988, after Supreme Court justice nominee Robert Bork‘s rental history was leaked to a newspaper, the privacy law hasn’t translated well for the digital age. Entertainment companies have faced a rash of VPPA claims, but most of the lawsuits have invariably failed for one reason or another.
In this case, Chesler examines whether it’s plausible that the information collected identifies the children visiting Viacom websites.
The plaintiffs had a theory on how this might happen: Maybe Google took the information it got from Viacom and, before disclosing to advertisers what kids were watching on Nick.com, matched it against registrations for Gmail, YouTube and other Google services.
But the judge points out that the lawsuit alleges no facts that any of the plaintiffs ever registered with Google. “It appears that Google would not even allow a child under the age of thirteen to register for its services, which would rule out the entire class of Plaintiffs, all of whom are under that age,” he writes.
The judge compares the identification deficiency to one that last November doomed another lawsuit, this one taking aim at those using the WatchESPN application. There, ESPN was working with data analytics giant Adobe Systems, and the judge in that case wasn’t buying the theory of a “look-up table” that correlated a user ID with a person’s name.
“Here too, the [second amended complaint] does not allege that Google actually ‘can, and does, identify’ any of the Plaintiffs,” writes the judge. “The theory upon which Plaintiffs rely to cure this claim is thus wholly speculative.”
So the VPPA isn’t enough, but how about New Jersey’s Computer Related Offenses Act, an anti-hacking statute that requires a plaintiff to show being damaged in business or property? Chesler examines whether the plaintiffs can show that their own ability to monetize their Internet usage was harmed.
The lawsuit said that one’s personal data is valuable — one study pegs a user’s browsing history as being worth $52 per year — and that “targeting advertisements to children adds more value than targeting to adults because children are generally unable to distinguish between content and advertisements.”
Nevertheless, Chesler writes that the plaintiffs “fail to allege that they could have monetized the [personal identifiable information] collected, or if they could, that Defendants’ conduct prohibited them from still doing so.”
That leaves one last claim by the plaintiffs — that Viacom and Google violated a privacy tort known as “intrusion upon seclusion.”
To win there, the plaintiffs needed to show a privacy intrusion that would be “highly offensive to a reasonable person.”
So the attorneys for the children attempted to trot out that 2012 study by the Center of Digital Democracy referenced above to show that most people really want strong privacy protections where children are concerned. But the judge finds the polling out of place, writing that what might strike most people as undesirable doesn’t support a claim for legal relief. Judge Chesler ends his opinion with the suggestion that the other branches of government must act first if there is going to be a crackdown on the ways that entertainment companies and their advertisers collect information and target children. He writes:
“It is, of course, apparent to the Court that children do indeed warrant special attention and heightened protections under our laws and social norms. To be sure, however, the Court’s role in this decision is not to pass on the morality nor the wisdom of companies tracking the anonymous web activities of children for advertising purposes. The Court does not, by way of this Opinion, find Defendants’ conduct beneficial. The Court’s only task is to assess whether Plaintiffs’ claims pass muster under the federal pleading standards vis-à-vis the authorities upon which those claims rest. Here, Plaintiffs’ SAC is an exercise in attempting to fit square pegs into round holes. Although Plaintiffs have identified conduct that may be worthy of further legislative and executive attention, they have not cited any existing and applicable legal authority to supports their claims.”
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