NetChoice Not Alone in Opposing Calif. Age-Appropriate Design Code Act

In her September decision, Freeman said she was “mindful that the CAADCA was enacted with the unanimous support of California’s Legislature and Governor,” and had “given careful consideration to the motion, the State’s opposition, NetChoice’s reply, the supplemental briefs filed by both parties, the briefs filed by seven sets of amici curiae, and the oral arguments presented at the hearing.”

“The Court finds that although the stated purpose of the Act—protecting children when they are online—clearly is important, NetChoice has shown that it is likely to succeed on the merits of its argument that the provisions of the CAADCA intended to achieve that purpose do not pass constitutional muster,” Freeman wrote. “Specifically, the Court finds that the CAADCA likely violates the First Amendment.”

With arguments in front of the Ninth Circuit coming up, NetChoice has lined up an ideologically diverse set of amici in the case, with supporting briefs filed by organizations ranging from the U.S. Chamber of Commerce to the American Civil Liberties Union (ACLU).

In a brief filed jointly by the national ACLU and its Northern California affiliate, the civil liberties organization noted that while the California legislature has primarily framed CAADCA as a “consumer privacy law that would offer stronger privacy protections by default,” which the ACLU conceded is a “a critical goal that legislatures can and should accomplish without violating the First Amendment,” it also asserted the “actual text of the law reveals a different regulation: one that expressly and impermissibly engages in content-based discrimination in the name of protecting consumer privacy and children.”

The ACLU also urged the court not to toss out the baby with the bath water, so to speak, when considering the challenge to CAADCA.

“This law should be struck down,” ACLU argued. “But amici respectfully urge the Court to decide the case narrowly, based on the text of the CAADCA, and ensure that the door remains open to sustaining other consumer privacy laws containing similar concepts in the future—including in California, where privacy is a fundamental, inalienable constitutional right.”

While acknowledging that the California Legislature “was understandably concerned with the privacy, wellbeing, and safety of children,” the ACLU noted that the U.S. Supreme Court has “made clear time and again that, even where children are concerned, the government cannot regulate speech ‘solely to protect the[m]… from ideas or images that a legislative body thinks unsuitable for them.’ Nor can it limit adults’ access to speech in the name of protecting children. The CAADCA fails on both counts.”

In its brief, the U.S. Chamber of Commerce flatly asserted that CAADCA “if upheld, “would wreak havoc on the Internet.”

“Although nominally a children’s privacy law, the Act would render the State a roving Internet censor,” the Chamber added. “It would give the California Attorney General unprecedented authority to regulate online speech that the government finds ‘potentially harmful.’ And it would let the AG prevent speakers from obtaining information to develop and disseminate any message that California determines to not be in the ‘best interests’ of children. Such deliberate content-based regulation of speech violates the First Amendment and is part of a broader troubling trend in which States attempt to justify censoring speech that they dislike by invoking the laudable interest in protecting children.”

Eric Goldman, a professor at Santa Clara University School of Law and Co-Director of the High Tech Law Institute, noted in his amicus brief that while the California Attorney General has argued that the law’s requirements “furthers a substantial state interest in protecting children’s privacy,” what the law requires companies to do would, ironically, necessitate the collection of a great deal of personal information from the children it purports to protect.

“As the district court correctly concluded, the CAADCA actually achieves the opposite result by compelling businesses to systematically collect children’s highly sensitive information, thereby exposing children to alarming privacy intrusions that they would otherwise not experience,” Goldman wrote. “Though the Attorney General argues that the CAADCA only requires businesses to use minimally invasive age-estimation methods, that ignores the reality that any reliable age-estimation method is highly invasive by necessity.”

While ostensibly designed to protect children’s privacy online, Judge Freeman noted in her September ruling that the breadth of CAADCA “goes far beyond the scope of protections” offered by existing laws with similar aims, like the Children’s Online Privacy Protection Act (COPPA) and California Consumer Privacy Act (CCPA).

“The CAADCA goes far beyond the scope of protections offered by COPPA and the CCPA,” Freeman wrote. “Whereas COPPA limits the collection of user data by operators of websites and services ‘directed to children,’ the CAADCA ‘declares that children should be afforded protections not only by online products and services specifically directed at them but by all online products and services they are likely to access.’ COPPA protects children under the age of 13, while the CAADCA protects children under the age of 18. COPPA gives parents authority to make decisions about use of their children’s personal information, and the CCPA gives users authority to make decisions about their own personal information. In contrast, the CAADCA requires online providers to create a Data Protection Impact Assessment (“DPIA”) report identifying, for each offered online service, product, or feature likely to be accessed by children, any risk of material detriment to children arising from the provider’s data management practices.”

While California argued that that the policy enforcement provision of CAADCA “does not regulate speech because businesses are free to create their own policies,” Freeman wasn’t buying that framing.

“It appears to the Court that NetChoice’s position that the State has no right to enforce obligations that would essentially press private companies into service as government censors, thus violating the First Amendment by proxy, is better grounded in the relevant binding and persuasive precedent.”

Time will tell whether the Ninth Circuit agrees with Judge Freeman, NetChoice and their diverse amici, or sees things through the same lens as the California Legislature.