Google taps former FTC chair to defend children's privacy suit

Google will be be defended by the former chairwoman of the US Federal Trade Commission, Edith Ramirez, in litigation filed in the wake of the FTC’s $170 million settlement of alleged children’s privacy violations by the online ad giant’s YouTube platform.

Ramirez, who is co-head of the antitrust and competition practice at Hogan Lovells in Washington and a partner in the firm's privacy and cybersecurity practice, led the FTC from 2013 to January 2017. She filed today in US District Court in San Jose, California to represent Google and YouTube in a lawsuit filed last month that challenges the legality of an ecosystem of toy companies and media outlets that allegedly used YouTube channels to track and profile children.

Filed by Nichole Hubbard, a California mother of a five-year-old child who used YouTube, the suit alleges that toy companies such as Mattel and Hasbro, and media companies such as DreamWorks and Cartoon Network, used nursery rhymes, cartoons and other child-directed content to attract kids to their YouTube channels, in order “to unlawfully track, profile, and target children under thirteen with behavioral targeting.”

The Hubbard suit was filed less than two months after the FTC reached the largest settlement in the two-decade history of the Children’s Online Privacy Protection Act, alleging that Google and YouTube used web cookies to target ads to children, a violation of COPPA when the when the tracking is done without parents’ consent.

A federal judge in Washington DC granted final approval to the record FTC settlement on Sept. 10. Only today, as framed by the settlement, the FTC issued guidelines to help YouTube channel owners decide when to designate videos they upload as being “directed to children.”

Ramirez had a reputation as a tough, smart, shrewd and calm litigator when she worked for the litigation powerhouse Quinn Emanuel in Los Angeles before joining the FTC. She previously represented Google in a COPPA case in Charleston, South Carolina. Ramirez’ team won the dismissal of that case this year.

President Barack Obama nominated Ramirez in 2010 to serve on the FTC; she became the chair in 2013 after former Chairman Jon Leibowitz left the commission.

Under her leadership, the FTC created the Office of Technology Research and Investigation to investigate privacy issues, built stronger connections with academic researchers through events such as its annual "PrivacyCon" conference, and bolstered the agency’s technological capabilities to investigate privacy cases.

But in taking on a case that is a follow-on to one of the FTC’s highest profile privacy investigations, one filed against Google in Silicon Valley, Ramirez is courting controversy.

While noting that there is no conflict of interest in taking the case more than two and a half years after Ramirez left the FTC, one of the original supporters of COPPA legislation told MLex today that he was “disappointed” that Ramirez would represent Google in a children’s privacy case.

“I’m personally disappointed that Chairman Ramirez, given the options she has in her career, would work with a company that has not been a strong supporter of digital rights and privacy,” said Jeff Chester, executive director of the Center for Digital Democracy.

“Under Chairwoman Ramirez’ tenure, the FTC failed to address Google’s flagrant violations of COPPA,” said Chester, whose organization and other privacy groups had filed COPPA complaints against Google with the FTC while Ramirez was chair in 2015. “They had a case before them to enforce COPPA that her commission did not act on. The Trump commission acted upon it. So it’s troubling.”

Ramirez did not respond to phone and e-mail messages today seeking comment. The Hubbard case is currently under the supervision of US Magistrate Judge Susan van Keulen in San Jose, although Google and the plaintiffs in the case have the option of rejecting oversight by a magistrate judge in favor of a federal district judge.