Youth privacy advocates retool model bill for ‘24 push

The tech industry sued over California’s first-in-the-nation law.
The Meta logo. (AP Photo/Thibault Camus, File)

A coalition of youth advocates is planning a renewed push this year to pass tech safety legislation modeled on a first-in-the-nation California law that was blocked from taking effect after a tech industry lawsuit.

The Kids Code Coalition says it has retooled its model youth data privacy bill with the goal of making it more legally resilient and will try again to get it passed in at least three states: Maryland, Minnesota and New Mexico. Versions of the law could also be considered in Illinois and Vermont, and New York Gov. Kathy Hochul (D) endorsed a pair of internet safety bills that borrow elements from California’s law.

The model bill, known as the Age-Appropriate Design Code, is based on United Kingdom regulations in effect since 2020 that seek protect youth from harmful design features while also giving them additional data privacy protections. Backers say it is needed to ensure that online products young people routinely use are designed with their best interests in mind.

“I’ve been pleasantly surprised by how much lawmakers are chomping at the bit to introduce legislation despite the litigation; they’re not deterred,” said Meetali Jain, director of the Tech Justice Law Project.

The AADC is a more comprehensive approach to protecting children online than states’ recent focus on social media restrictions. Supporters point to the results in the U.K.: YouTube turned off autoplay on kids’ accounts, and TikTok made accounts for 13- to 15-year-olds private by default.

California lawmakers unanimously passed a first-in-the-nation AADC law in 2022 and scheduled it to go into effect on July 1, 2024. It requires that companies conduct a data protection impact assessment to identify potential harms before deploying online features or products that are likely to be accessed by children. The law also mandates higher privacy settings by default for youth users and restricts the sale of children’s data to third parties.

Tech industry group NetChoice, whose member companies include Meta, TikTok and X, sued to block it from taking effect, calling the AADC a “careless attempt to control online speech.” A federal district court judge granted a preliminary injunction in September, saying it likely violates the First Amendment. California appealed to the Ninth Circuit last month.

Despite the lawsuit, supporters launched a campaign last year to export the California law to Maryland, Minnesota, Nevada and New Mexico. Those efforts faced intense opposition from the tech industry and even news media organizations.

This year AADC advocates are back with a revised bill and plan a renewed effort to get it passed.

In a recent interview, Jain said the changes to the bill were informed less by the court’s preliminary injunction, which she called “spectacularly overbroad,” and more by stakeholder feedback.

For 2024, the coalition has sought to more closely align its model legislation with existing U.S. laws rather than the U.K. regulations. Backers tightened definitions, made changes to the Data Protection Impact Assessment requirement and reworked the data privacy requirements. They also inserted a severability clause so that if elements of the law are found to be unconstitutional, other provisions could survive.

A single reference to “content” on the internet was also removed in response to criticism from opponents that the AADC seeks to moderate online content.

“This was never intended to be about content,” Jain said. “This was always about privacy by default and safety by design and the safeguards are upstream from content deliberately and that continues to be the case.”

“We’re in a much better place as far as having the language being legally defensible,” said Nichole Rocha, head of U.S. affairs at 5Rights Foundation, a U.K.-based nonprofit that sponsored the California AADC law.

The Kids Code Coalition also includes the Center for Digital Democracy, Common Sense Media, Center for Humane Technology and The Tech Oversight Project.

The coalition’s second attempt at passing AADC laws in key states is likely to reignite a fierce lobbying battle.

“NetChoice will continue fighting, in the legislatures and the courts, to ensure Americans’ constitutional rights, parent’s rights, data security, and privacy are protected online,” said Carl Szabo, vice president and general counsel at NetChoice. “We hope to work with policymakers to help craft constitutional proposals that embrace the principles of free enterprise and free expression for all Americans.”

Advocates say they are optimistic the AADC approach can get traction in 2024, in part because lawmakers are more familiar with the concept and because there is a growing movement in state legislatures to try to make the internet safer for youth.

“I’m one of the folks helping to evangelize this bill,” said Minnesota Rep. Kristin Bahner (D), who sponsored the AADC bill in her state last year and will try again to pass a revised version this year.

Bahner, who has a background in tech, said the changes to the legislation are designed “to make sure that the bill is crisp and that it is easy to understand and that the courts can more easily wrap their arms around it and enforce it.”

So far, the coalition has been working mostly with Democratic sponsors in blue states, but that could change this year. Illinois Sen. Sue Rezin (R), who introduced an AADC bill last year, said she is in touch with the coalition and plans to reintroduce the bill this year along with a “package of bills” aimed directly at social media companies.

“Many people will say technically this is a federal issue,” Rezin said, “but elected officials at the state level have very little faith Congress will pass legislation dealing with this issue.”