FOLLOW US

A California federal judge on Monday denied Google's request for an immediate appeal regarding allegations that the tech giant secretly tracked children’s online activities, ruling that the issues presented do not justify interlocutory appeal at this stage of the litigation.

U.S. District Judge P. Casey Pitts ruled that Google’s request to certify the case for interlocutory appeal failed to meet the necessary criteria. One of the primary issues raised by Google was whether the plaintiffs had sufficiently alleged that Google had actual knowledge of tracking by apps within its Designated for Families program. However, Judge Pitts found that the issue at hand was related to the application of federal pleading standards rather than a controlling legal question, making it unsuitable for an appeal before final judgment.

"This issue pertains not to the application of the actual knowledge standard under the Children’s Online Privacy Protection Act (COPPA) but to the procedural requirements set forth in the Federal Rules of Civil Procedure," Judge Pitts wrote.

Although a ruling in Google’s favor on this issue could lead to the dismissal of the case, the judge emphasized that such a ruling would not address a legal question of the kind typically appropriate for interlocutory appeal. Judge Pitts suggested that any ambiguities surrounding COPPA’s actual knowledge requirement would be more appropriately resolved at a later stage in the proceedings, such as during summary judgment or trial.

The lawsuit, filed by the parents of several minors, accuses Google of permitting game developer Tiny Labs to track children’s web activity without parental consent. The plaintiffs contend that this tracking enabled advertisers to target children with behavioral advertising. Google argues that it removed Tiny Labs apps from the Google Play Store in 2018, but the plaintiffs claim the apps remained on devices beyond that year.

The plaintiffs also argue that Google did not adequately address issues with its AdMob software development kit until 2021, after a settlement with the New Mexico Attorney General’s Office over similar claims. Google contends that the claims are time-barred, but Judge Pitts allowed the case to proceed in June.

On Monday, the judge also dismissed Google’s argument that there is substantial ground for a difference of opinion regarding COPPA’s actual knowledge requirement. Google had pointed to differing rulings from district courts in California and New Mexico, but Judge Pitts noted that the company had oversimplified these decisions by not considering the specific factual circumstances in each case.

Judge Pitts also rejected Google’s second question regarding the alleged misappropriation of personal information and whether it constitutes a loss of "property" sufficient to confer standing under California’s Unfair Competition Law (UCL). Google argued that a difference of opinion exists on this issue in district courts and that the lack of binding Ninth Circuit precedent warranted interlocutory appeal. However, Judge Pitts stated that such differences were not enough to warrant departure from the normal appellate process and could be addressed through the standard appellate review following final judgment.

The lawsuit was prompted by a 2018 study by security researchers at the University of California, Berkeley, which found that 2,667 apps in the Designated for Families program were mislabeled as being directed at mixed-age audiences rather than primarily aimed at children. The plaintiffs contend that the study, which identified Tiny Labs apps as a case study, should suffice in alleging that Google had knowledge of the issues with these apps.

In addition to seeking damages, the plaintiffs are asking for an injunction that would require Google to delete or sequester all personal information collected from children under 13 without proper parental consent. They argue that millions of children’s data was unlawfully collected, allowing advertisers to target them.

Google countered that it had taken corrective steps following its 2021 settlement with New Mexico and that the plaintiffs lack standing to seek the requested injunction. Judge Pitts, however, allowed the plaintiffs to proceed with their claims for injunctive relief, ruling that the ongoing harm alleged by the plaintiffs warrants such relief.

The case is A.B., a minor, by and through his guardian Jen Turner et al. v. Google LLC et al., case number 5:23-cv-03101, in the U.S. District Court for the Northern District of California.