Disruption

The tech group challenging state efforts to protect kids online

NetChoice has won injunctions after taking states to court over First Amendment concerns with new laws.
Students work on a laptop computer at Stonewall Elementary in Lexington, Ky., Feb. 6, 2023. (AP Photo/Timothy D. Easley, File)

State legislators seeking to make the internet safer for kids have consistently collided with a small but aggressive tech industry group determined to thwart their efforts over constitutional concerns.

NetChoice, a trade association that launched in 2001 to protect online businesses from unfair regulations, has battled lawmakers in committee rooms and courtrooms over efforts to regulate the internet and social media. Its members include Amazon, Google, Meta, Netflix, StubHub, X and Yahoo.

While other tech trade groups stick to traditional lobbying, NetChoice, with nine full-time staff members and $34 million in revenue in 2022, has established itself as the tech industry’s litigator-in-chief.

The lawsuits date to 2009 when NetChoice sued Maine over a youth data privacy law that was later repealed. In 2016, it challenged online sales tax collection laws in Indiana, Massachusetts, Ohio, South Dakota, Tennessee and Wyoming.

Since 2021, the group has filed 10 lawsuits to block new state laws from taking effect that mostly relate to social media and youth online safety. It has won temporary injunctions at the district court level in nine of those cases, including in Utah last week.

More lawsuits could be coming. Lawmakers in Florida and New York passed high-profile social media regulations this year that are potential targets.

“We saw a need for the industry, and we stepped up to address that need,” Carl Szabo, NetChoice’s vice president and general counsel, said in an interview.

In the Utah case, a federal judge in Salt Lake City granted NetChoice’s motion to enjoin Utah’s Minor Protection in Social Media Act from taking effect next month.

The law would have required social media companies to verify the age of new account holders and set the highest privacy settings for teen users by default, among other requirements.

U.S. District Court Judge Robert Shelby found that NetChoice is “substantially likely to succeed on its claim the Act violates the First Amendment.”

“We look forward to seeing this law, and others like it, permanently struck down and online speech and privacy fully protected across the country,” Chris Marchese, director of NetChoice’s litigation center, said in a statement.

NetChoice established its litigation center in March 2023 to be the “go-to source for the future of American tech litigation.”

Read more: Tech industry group beefs up efforts to battle states in court

Two of its cases, brought jointly with the Computer & Communications Industry Association, made it to the U.S. Supreme Court.

The groups challenged two laws passed in Florida and Texas in 2021 aimed at preventing large social media sites from deplatforming conservative politicians or political speech.

In July, the Supreme Court declined to say whether the laws are constitutional and instead sent the cases back to lower courts for further review.

NetChoice and CCIA also jointly sued Texas this summer to overturn a law passed last year aimed at protecting minors from harmful content online. Last month, a federal judge blocked a portion of that law from taking effect.

“We do coordinate and collaborate across organizations, and they are our allies in some legal cases,” CCIA President and CEO Matthew Schruers said. “We do our best to ensure that we’re both representing our constituents and doing so in the most efficient way.”

NetChoice’s litigation proclivity has spawned criticism of its tactics and uncompromising “free enterprise and free expression” mission.

“Big Tech is sending a very clear signal — they’re willing to do and spend whatever it takes to stop necessary reforms that protect our kids online,” Shelby Knox, campaign director at ParentsTogether Action, said when NetChoice’s litigation center was announced.

Nicole Gill, executive director and co-founder of Accountable Tech, accused NetChoice of engaging in a “larger agenda … to overturn tech regulation policies nationwide in an effort to protect Big Tech’s profits and influence.”

NetChoice has also drawn the ire of elected officials from both parties. Ohio Lt. Gov. Jon Husted (R) blasted the group after it sued his state in January to overturn a new parental permission social media law.

“I think it’s cowardly and disingenuous,” Husted told the New York Times. “We tried to be as cooperative as we possibly could be — and then at the 11th hour, they filed a lawsuit.”

California Attorney General Rob Bonta (D) told the Times that “NetChoice has a burn-it-all strategy.”

Utah Rep. Jordan Teuscher (R) said NetChoice and its member companies play “good cop, bad cop” with state lawmakers.

“It allows for a Meta or a Google to come forward to say, ‘Look we’re doing everything we can, we understand there are harms, we’re trying to fix that.’ … While at the same time they use their trade organization to stab you in the back.”

Meta and Google did not respond to a request for comment.

Szabo, who would not discuss how NetChoice funds its litigation, shrugs off the critics. He said NetChoice’s first goal is to “advise and deter” lawmakers from passing laws it views as unconstitutional. He described lawsuits as a “last resort.”

“When lawmakers disregard the legal concerns we flag and advance laws knowingly in the face of those constitutional problems, that’s where unfortunately we have to step in on the litigation side,” Szabo said, adding that NetChoice’s members do not sit on its board or have a vote on the positions it takes.

Stylistically, Szabo stands out from others in the tech lobbying world. Lawyerly and at times provocative, he can rankle state lawmakers.

At a National Conference of State Legislatures session on social media regulation last year, Szabo incurred pushback from both Democrats and Republicans on the panel when he suggested lawmakers were trying to strip parental control by regulating social media.

At a Maryland legislative hearing this year, Szabo and members of the committee got into a testy exchange over the constitutionality of a proposed children’s online protection law similar to one that NetChoice had successfully sued to block in California.

“An unconstitutional law will protect zero children, and that’s exactly what we’re looking at right now,” Szabo told the committee. “California tried to do an end-run around the First Amendment. They lost.”

“I’ll take an ass-whooping in court,” responded Del. C.T. Wilson (D), the committee’s chair, “but I won’t take one in my committee.”

Szabo does not apologize for his approach. He said NetChoice’s goal is to help states create “meaningful and constitutional” laws.

“We’ve done nothing wrong. … We’re merely standing up for the First Amendment rights of parents and Americans everywhere,” Szabo said.