A federal appeals court ruled Friday that a California child-safety law likely violates the First Amendment. It’s the second time a court has come to that conclusion about a bill that supporters elsewhere have upheld as a template for federal legislation.The 44-page opinion (PDF), written by Judge Milan D. Smith, Jr. for the US Court of Appeals for the Ninth Circuit, holds that the California Age-Appropriate Design Code Act goes too far in requiring companies to prepare Data Protection Impact Assessments estimating the risks that their underage users could encounter “harmful, or potentially harmful” content or conduct online. That law, also known as Assembly Bill 2273, “clearly compels speech by requiring covered businesses to opine on potential harm to children” and “deputizes covered businesses into serving as censors for the State,” Smith wrote. California “could have easily employed less restrictive means to accomplish its protective goals,” the judge adds, such as offering incentives to companies to ship optional filters and educating kids and their parents about using those tools.
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NetChoice, a Washington trade association of tech companies, filed this suit against California Attorney General Rob Bonta soon after Gov. Gavin Newsom signed AB 2273 into law in September 2022. It directs any “business that provides an online service, product, or feature likely to be accessed by children” to “consider the best interests of children when designing, developing, and providing that online service, product, or feature.”In addition to the impact-assessment provisions, AB 2273 strictly limits how businesses can collect data on kids, requires child-privacy default settings “that offer a high level of privacy” and bars using dark-pattern experiences to coax kids into loosening those settings or take actions that would be “materially detrimental to the child’s physical health, mental health, or well-being.”NetChoice won an initial victory in September 2023 in the US District Court for the Northern District of California, when Judge Beth Labson Freeman held in an opinion (PDF) that multiple provisions of it probably failed First Amendment scrutiny.Smith’s opinion sets aside parts of Freeman’s injunction and directs the district court to conduct further proceedings. In a statement posted Friday, NetChoice cheered his decision.“The Ninth Circuit’s ruling is a victory for free expression, online security and Californian families,” said Chris Marchese, director of the NetChoice Litigation Center. “The court recognized that California’s government cannot commandeer private businesses to censor lawful content online or to restrict access to it.”
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Other states have followed California in passing online-child-safety bills, sometimes going farther to target social platforms’ algorithmic feeds and allegedly addictive user experience. See, for example, laws now on the books in Utah and New York. At the federal level, the Kids Online Safety Act takes some inspiration from the California statute; it passed overwhelmingly by the Senate in July but stalled in the House.Surveys of kids have found that they do spend a whole lot of time online but it’s not all bad. In November 2022, the Pew Research Center found that kids reported that social media helped them feel more connected to friends, gave them a creative showplace, and provided support groups. And the May 2023 advisory from US Surgeon General Vivek Murthy—who in January called for health warning labels on social media like those required for cigarettes—highlighted upsides and downsides for kids using social media even as it called for “urgent action” to protect them. “Social media can provide benefits for some youth by providing positive community and connection with others who share identities, abilities, and interests,” the report said. “It can provide access to important information and create a space for self-expression.”
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About Rob Pegoraro
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Rob Pegoraro writes about interesting problems and possibilities in computers, gadgets, apps, services, telecom, and other things that beep or blink. He’s covered such developments as the evolution of the cell phone from 1G to 5G, the fall and rise of Apple, Google’s growth from obscure Yahoo rival to verb status, and the transformation of social media from CompuServe forums to Facebook’s billions of users. Pegoraro has met most of the founders of the internet and once received a single-word email reply from Steve Jobs.
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