NetChoice, a trade association representing technology companies, has sued to block California’s Age-Appropriate Design Code Act (AB 2273), the state’s clumsy attempt to protect children online. As NetChoice writes in a request for a restraining order filed last month, the law violates the Constitution by “enacting[ing] a system of prior restraint over protected speech with undefined, vague terms and creat[ing] a regime of proxy censorship that forces online services to restrict speech in ways the state could never do directly.
The law requires any business (as defined by California law) that offers online services “that are likely to be used by children”[e]Estimate the age of child users with an appropriate level of confidence commensurate with the risks arising from the organization’s data management practices, or apply children’s privacy and data protection to all consumers” (emphasis added). In other words, if a company cannot specifically create barriers for children, it must create barriers for all users.
Such child-specific safeguards include pre-configuring settings to maximize privacy and not collecting, maintaining, or selling non-essential data. In addition, before offering a new online service that children can access, companies must investigate and detail how it could harm children. Like many other broad terms, the law leaves “damage” undefined. “[B]Because it relies on unacceptably vague norms and wording, the law is “invalid,” according to NetChoice.
NetChoice posits that AB 2273 “places the burden on all online service providers to configure their services to be child-friendly, rather than providing certain households with the controls and information they need to make content and privacy decisions for their children.” The association argues , that “[s]Such a media-focused approach is inherently too broad, especially given that nearly two-thirds of California households are childless.
In addition, Plaintiff states, “Its application to any online feature that is ‘probably’ accessible to anyone under the age of 18, and its assumption that users are minors unless proven otherwise, means that virtually all content – including blogs, book groups and encyclopedias – used mostly by and intended for adults – governed by the law.”
The law will require companies to strictly adhere to their stated content moderation policies, which, by barring discretionary enforcement, amounts to “proxy censorship.” This provision “forces services to play it safe by blocking content that some (but not others) may find problematic – such as by enforcing bans on categories such as ‘hateful’, ‘offensive’ or ‘respectful’ content ‘ NetChoice argued. By effectively asking online platforms to mandate universal age verification or subject all users to a sanitized, child-modified version of the internet, the association says the bill puts undue strain on speech.
The law atrophies before the double scrutiny, a legal test often applied to laws implying fundamental rights like freedom of expression. First, the government must identify specific harms or risks to demonstrate an overriding state interest. California didn’t, claims NetChoice. “The state must ‘prove the existence of a problem’ before it can strain speech, and provide ‘a more careful assessment and characterization of an evil’ it intends to avert in order to ‘justify’ its ‘broad’ regulation,” it says in the file. Second, the government must show that policies are closely tailored to achieve its goal. Again, the broad and vague AB 2273 obviously fails.
“[S]Censorship of pixies is the stated goal of AB 2273: It expressly states that providers should base their online expression on the ‘best interests’ and ‘welfare of children’,” the plaintiffs conclude.
Gov. Gavin Newsom’s California — in some ways the blue-tinted reflection of Ron DeSantis’ Florida — seems determined to micromanage the Internet to allay progressives’ fears. Such interventions in markets and freedom of expression are magnets for unintended consequences and rarely end well.