By P.J. D’Annunzio, From The Legal Intelligencer

A debate over whether Google has the ability to glean children’s personal information from websites they visit took center stage during arguments before the U.S. Court of Appeals for the Third Circuit.

Lawyers representing children who visited the Nickelodeon network’s website argued Google had the ability to extrapolate the children’s identities from usernames, birthdates and gender information they provided to Nickelodeon’s parent company, Viacom, for use of the website. Google’s cookies, installed on the website, would take that information and combine it with additional data gathered from other Google services to pinpoint the children’s names and addresses, their lawyers argued. Cookies are small bits of data collected by websites to record browser activity.

Jefferson City, Missouri-based lawyer Jason O. Barnes argued on behalf of the plaintiffs, who were part of multiple classes whose cases had been dismissed by the district court for failing to show that the information collected by Google was personally identifiable.

Barnes told the appellate panel—consisting of Judges Patty Shwartz, Julio Fuentes, and via teleconference, Franklin Van Antwerpen—that Viacom and Google had violated the Video Privacy Protection Act. Viacom provided the information to Google through cookies, and Google was a willing recipient, he argued.

“So Viacom discloses a specific name to Google?” Fuentes asked.

Barnes said no; the entire “suite of information” in Google’s possession makes the individual personally identifiable.

“How does that personally identify an individual?” Fuentes shot back.

Barnes stressed the case was not about children being identified, but Google’s ability to identify them from the information it has.

“There’s a difference between identifier and identifiable,” Barnes said.

Alan J. Butler, arguing for the amicus appellant, Electronic Privacy Information Center, reiterated Barnes’ point that being identifiable is distinguished by the ability to trace personal information from a source, like a Social Security number.

This boiled down to companies being able to profile people, Butler said.

“But no one has pleaded that that has actually happened yet, that anyone has been identified,” Van Antwerpen said over the loudspeaker.

Butler said no, but the statute does not require identification to occur.

David A. O’Neil of Debevoise & Plimpton, representing Viacom, was next up to the podium. O’Neil told the panel that cookies are nothing more than anonymous computer codes that exist to direct data from point to point in the Internet.

“There is nothing to show that any human being sees this information,” O’Neil said.

“No, but Viacom collects information from subscribers,” Fuentes said.

O’Neil said the company did not, and pointed to a privacy statement on the registration portion of the website that instructs children not to list their real names when making a username, and asks registrants only for birthdate and gender.

Google’s attorney, Michael H. Rubin of Wilson Sonsini Goodrich & Rosati, said the VPPA relates only to videotape service providers that have disclosed private information: “Google is not a videotape service provider.”

“Aren’t you intentionally tracking children without their consent?” Van Antwerpen asked.

Rubin said that argument had more to do with another case, In re Google Cookie Placement Consumer Privacy Litigation, in which Google was alleged to have overridden cookie-blocking programs on websites.

But Van Antwerpen still asked whether it was Google’s intent to track the children’s information.

Rubin said Google’s cookies were placed intentionally on the Nickelodeon website with permission by Viacom, which is not tortious.

Google is entitled to rely on permission from Viacom, or any Web host, to place cookies on a site.

Jeffrey B. Wall was last up and argued on behalf of the U.S. Chamber of Commerce.

Wall’s statements focused mostly on the relevance of the VPPA in the digital world, as people seldom check out videotapes or subscribe to videotape services anymore.

The question that needed to be answered, according to Wall, was whether the language about whether personally identifiable information can be gleaned from videotape services also includes related services, like streaming video from websites.

The children frequented the Nickelodeon site to watch videos and play games, according to the appellant brief. In addition to the other information, the plaintiffs said Google’s cookies recorded the children’s IP address, browser information, operating system, and the content of their Web communications.

IMAGE: Emrah Turudu

For more on this story go to: http://www.thelegalintelligencer.com/id=1202744303902/Googles-Gleaning-of-Childrens-Info-Eyed-by-Third-Circuit#ixzz3tq6seYb5