United States: We Were Only Placing Orders!

Play Store pulls Google into game app COPPA suit

Tiny Trouble

New Mexico Attorney General Hector Balderas' recent suit against app developer Tiny Lab Productions is a kitchen sink, grab bag and cornucopia rolled into one.

Balderas alleges in the 87-page complaint that Tiny Lab violated the Children's Online Privacy Protection Act (COPPA) and New Mexico's Unfair Practices Act. He claims that the company surreptitiously collects information without disclosure or consent from the children who are the primary audience of more than 90 of Tiny Lab's applications. Some of the applications include kid-friendly names such as "Angry Bunny Race: Jungle Road" and "Baby Toilet Race: Cleanup Fun."

COPPA Copper

Along with Tiny Lab, Attorney General Balderas' complaint included several defendants involved in the children's application data chain, including Google, whose app platform "Play Store" hosted Tiny Lab's creations, and several advertising platforms that allegedly procured the surreptitiously collected information from the applications and used it to create targeted ads. This last batch of defendants included Google's ad platform AdMob, and Twitter's ad platform as well.

The complaint alleges that Google was aware that Tiny Lab was violating COPPA, and that it "condoned" Tiny Lab's activities by sponsoring the app on Play Store's "Designed for Families" program – in effect, "fraudulently [facilitating] Tiny Lab's marketing of its apps as being safe and appropriate for children."

The complaint also included details on the scope of COPPA violations in the app industry, research on the harm it does to kids, and an entertaining transcript of an email discussion between Google lawyers and researchers from UC Berkeley about the nature of the alleged violations.

The Takeaway

Google filed a motion to dismiss in mid-January 2019. The suit is shaping up to be a conflict over how COPPA works and the scope of potential violations.

For its part, Google argues that it is not obligated to research COPPA compliance for apps that are promoted in the Designed for Families program. The advertising giant maintains that "Google Play is merely a platform for the sale or distribution of apps," and that the Federal Trade Commission "has made clear that COPPA does not apply to such platforms." The company also notes that despite Attorney General Balderas' language asserting Google's "fraudulent" promotion of Tiny Lab's products, Balderas never actually makes a misrepresentation claim.

Moreover, Google argues that the AdMob service was also immune to the charges, because "the Complaint recognizes that Tiny Lab represented to Google that Tiny Lab's apps were not primarily child-directed and were COPPA-compliant and that Google relied on Tiny Lab's representations" – which is permitted by COPPA.

The motion contains some interesting analysis of how companies determine whether apps are "child-directed" in the first place. Regardless, Google argues that it "was entitled, as a matter of law, to rely on Tiny Lab's contractual promises to obtain parental notice and consent when required by COPPA."

Google's angle is, unsurprisingly, part of a larger trend we've seen at work with content platforms denying responsibility for the alleged violations of their providers. This complaint and regulatory action also represent a growing trend of regulatory authorities enforcing COPPA's requirements and seeking damages from largely successful companies for their alleged violations. As app developers and companies continue to market toward the growing demographic of children with access to smart devices, these companies should exercise caution when representing apps that may be directed to children or appropriate for children, and be aware of the potentially damaging COPPA implications.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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