Childrens’ data privacy advocates are vowing to continue to press state lawmakers to pass age-appropriate design code laws, despite a California judge’s recent ruling that blocked the state’s first-in-the-nation law from taking effect.
At a press briefing Tuesday, members of the Kids Code coalition — whose members supported the California law and similar legislation in other states this year — decried the judge’s decision and warned of a “dangerous weaponization” of the First Amendment that could result in tech companies being spared from regulation.
U.S. District Court Judge Beth Labson Freeman in San Jose granted on Sept. 18 a preliminary injunction sought by NetChoice, a tech trade group, on the grounds that California’s AADC likely violates the first Amendment.
The law’s supporters, speaking during the media briefing, warned that the injunction sets a dangerous precedent.
“There is not a First Amendment right to trick or manipulate children,” said Neil Richards, a professor of law at Washington University in St. Louis who specializes in privacy law. “If we make everything a First Amendment issue, we can regulate nothing.”
“This is the digital equivalent of not installing literal guardrails on staircases and not picking up banana peels or wet spots from the floors of grocery stores,” Richards said.
Carl Szabo, NetChoice’s vice president and general counsel, said the judge found “many reasons” why the law is likely to be struck down.
“CAADC proponents think they can end-run the First Amendment with clever word play, but Judge Freeman was clear: the law risks the privacy of minors and likely undermines their constitutional rights,” Szabo said in a statement.
AADC laws require companies to design online products and services with the best interest of kids in mind, if young people are likely to be users of the product. California’s 2022 law was modeled on regulations first established in the United Kingdom that have resulted in companies making changes such as disabling autoplay and halting overnight notifications to youth users.
NetChoice sued in December to overturn the California law on the grounds that it regulates online speech and runs afoul of the First Amendment. AADC supporters say it is not a content moderation law but instead a data privacy measure aimed at ensuring heightened protections for kids while online.
“We’re at a moment in our country’s history where we have to reckon with how our legal doctrines ultimately will support our pursuit for meaningful tech accountability or will hinder us from being able to regulate these companies at all,” said Meetali Jain, director of the Tech Justice Law Project.
Megan Iorio, senior counsel and amicus director at the Electronic Privacy Information Center, said that if the California judge’s reasoning holds up under appeal, it could also endanger broader data privacy laws that have so far passed in a dozen states.
“These are very common nuts and bolts commercial regulations that should not be subject to heightened First Amendment scrutiny and definitely should not be considered unconstitutional,” Iorio said, noting that EPIC filed an amicus brief in support of California’s law in response to the NetChoice lawsuit.
In an amicus brief siding with NetChoice, Eric Goldman, a law professor at Santa Clara University who teaches internet law, said California’s AADC would have “substantial, and negative, implications for both adults’ and children’s Internet experiences.”
In particular, Goldman called out the law’s requirement that online purveyors estimate the age of users or, alternatively, apply heightened privacy standards to all users.
“The AADC’s age-assurance requirements erect onerous barriers that would discourage Internet usage and chill protected speech,” Goldman wrote in his brief.
California’s law is on hold pending the outcome of the NetChoice lawsuit, but advocates are hopeful Attorney General Rob Bonta (D) will appeal the injunction.
Efforts to export California’s law to Maryland, Minnesota, Nevada and New Mexico this year were not successful. Members of the Kids Code coalition say they will not be deterred by the California court decision and are working to “optimize” their model legislation.
“Are we rethinking the model? Absolutely not. Are we rethinking some of the language to optimize? Absolutely,” Jain told Pluribus News after the California ruling. “As a model, I think it is absolutely the right way forward.”
There are already signs the issue is being teed up again for 2024.
Minnesota Rep. Kristin Bahner (D), who led the fight to pass an AADC model bill in her state this year, told Pluribus News she is preparing a slightly revised version of the legislation for next year.
“I’m not backing down,” said Bahner, who has a background in tech. “If anything, these lawsuits and the repeated attempts to stop forward momentum just tell me that we’re on the right track and that we should continue to press forward stronger than ever.”