State Laws ‘Consistent’ With COPPA Aren’t Preempted, Says FTC’s 9th Circuit Brief
The preemption clause in the Children’s Online Privacy Protection Act restricts states from imposing liability for regulated activities, including online data collection from children, that’s “inconsistent” with COPPA’s treatment of those activities, said the FTC’s amicus brief Monday (docket 21-16281) in the 9th U.S. Circuit Court of Appeals en banc reahearing of Jones v. Google. The FTC filed the brief at the 9th Circuit’s request in the case involving a group of children who allege Google collected data and surreptitiously tracked their online activity in violation of state laws.
Sign up for a free preview to unlock the rest of this article
Export Compliance Daily combines U.S. export control news, foreign border import regulation and policy developments into a single daily information service that reliably informs its trade professional readers about important current issues affecting their operations.
A 9th Circuit panel earlier said COPPA didn’t preempt the plaintiffs’ state law claims, and Google asked the full 9th Circuit for an en banc rehearing of that ruling. The FTC’s brief said the panel properly “held that plaintiffs’ claims here were consistent with COPPA and therefore not displaced.”
The FTC disagrees with Google’s “proffered interpretation” of COPPA’s preemption clause, “under which all state law claims involving children’s online privacy would be preempted,” said the brief. “Nothing in the statute’s text, purpose, or legislative history supports such sweeping preemption, which would amount to a finding that Congress intended to occupy the entire field of children’s online privacy,” it said. “No party advances that position,” and the FTC disagrees with it, it said: “The panel’s preemption holding was correct.”
On the key question that the 9th Circuit posed to the FTC about whether COPPA’s preemption clause preempts fully stand-alone state-law causes of action by private citizens that concern data-collection activities that also violate COPPA but aren’t predicated on a claim under COPPA, the commission’s answer is no, said the brief. The FTC “takes no position on the ultimate merits of the case or any other issue,” it said.
The parties don’t contend Congress “has occupied the entire field of children’s online privacy,” said the brief. They dispute “only whether express or conflict preemption principles bar plaintiffs’ state law claims,” it said. “The panel concluded that neither form of preemption applies, and on this record, the FTC agrees,” it said.
Congress “spoke clearly” when it enacted COPPA, said the brief. The FTC “was to serve as the lead enforcer of the federal framework, with a special but more limited role carved out for state enforcers,” it said. State laws that were consistent with COPPA’s treatment of covered activities “were to remain in place,” it said.
The panel “correctly determined that state law claims like those here, which are brought as fully stand-alone causes of action under state law (such as the tort of intrusion upon seclusion) but involve conduct that also violates COPPA, are generally consistent with COPPA and not preempted,” said the brief. Congress didn’t intend to “wholly foreclose” state protection of children’s online privacy, and the panel “properly rejected an interpretation of COPPA that would achieve that outcome,” it said.