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The Federal Trade Commission filed a brief arguing that the Children’s Online Privacy Protection Act (COPPA) does not preempt state privacy laws that are consistent with COPPA. The brief was filed in support of a federal appeals court’s ruling in Jones v. Google, a case in which a group of children allege that Google collected data and surreptitiously tracked their online activity in violation of state laws.

The FTC had previously alleged that Google and YouTube engaged in similar conduct in violation of COPPA. The companies agreed to pay $170 million as part of a settlement in 2019 with the FTC and the state of New York.

The FTC enforces COPPA, which was enacted in 1998, and requires websites and other online services targeted to children under 13 to notify parents and obtain their verifiable consent before collecting personal information from children. The COPPA statute includes a preemption clause that restricts states from imposing liability for regulated activities—for example, online data collection from children—that is inconsistent with COPPA’s treatment of those activities.

A federal district court initially found that COPPA preempted the state law claims, and the plaintiffs appealed to the U.S. Court of Appeals for the Ninth Circuit. On appeal, Google argued that all state-law claims involving children’s online privacy—including those brought by state-government enforcers like the California Attorney General—are “inconsistent” with COPPA’s framework and therefore barred by COPPA’s preemption clause.

The appeals court found that COPPA did not preempt plaintiffs’ state law claims, either expressly or through application of conflict preemption principles. The panel noted that in considering previous preemption claims, courts have said that state laws that “supplement” or “require the same thing” as a federal statute are not inconsistent with relevant federal laws.

Google has asked the full Ninth Circuit to review that ruling; the court then asked the FTC to weigh in on “whether the preemption clause [in COPPA] preempts fully stand-alone state-law causes of action by private citizens that concern data-collection activities that also violate COPPA but are not predicated on a claim under COPPA.”

In its amicus brief, the Commission said the panel properly rejected Google’s interpretation, which would preempt a wide swath of traditional state laws. The Commission argued that nothing in COPPA’s text, purpose, or legislative history supports the sweeping preemption that Google claimed. The Commission agreed with the appeals court panel that COPPA’s preemption clause only applies to state laws that are “inconsistent” with COPPA, and that plaintiffs’ claims here were consistent with the statute.  

The Commission voted 3-0 to authorize staff to file the amicus brief.

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