SAN JOSE, Calif. (CN) — A federal judge will decide whether to temporarily block a new California law requiring web platforms to protect children's data using safety settings while a coalition of tech giants challenge it in court.
The California Age Appropriate Design Code Act, Assembly Bill 2273, passed in September 2022, requires web platforms to implement safety settings to protect children’s data.
Gov. Gavin Newsom said he signed the bill to protect the well-being, data and privacy of children using online platforms. The law prohibits companies that provide online services that could be used by children from collecting, retaining or using any child’s personal information or geolocation or encouraging children to provide personal information. It also requires privacy information, terms of service and community standards be easily accessible so children understand how to exercise their privacy rights.
It’s a controversial topic nationwide, as new federal legislation called the Social Media Child Protection Act is taking shape — if enacted, it would keep social media platforms off-limits to children ages 15 and younger. The bill's proponents note the average 11- and 12-year-old has a cellphone, and that smartphone and social media use positively correlated with multiple mental health issues among youth.
The Big Tech coalition NetChoice, with members like Meta and Google, claims California’s law will clash with these federal laws, if approved.
NetChoice sued the state in December 2022, claiming the law violates the First Amendment and the commerce clause, is preempted by the Children’s Online Privacy Protection Act and will cause imminent irreparable harm. The 1998 act is supposed to protect children’s privacy by limiting data collection on those 12 and under, but has been criticized as being unenforceable if a child lies about their age.
“Imagine a law that required bookstores, before offering books and services to the public, to assess whether those books and services could ‘potentially harm’ their youngest patrons; develop plans to ‘mitigate or eliminate’ any such risks; and provide those assessments to the state on demand,” the plaintiffs said in their 42-page motion for a preliminary injunction filed in February.
In San Jose before U.S. District Judge Beth Labson Freeman on Thursday, California Deputy Attorney General Elizabeth Watson disagreed. She said the attorney general won’t review online content, and businesses are simply required to make a plan to mitigate children’s exposure to harmful content.
“I really do think it’s the case that the question is, whether it’s the design of the online product — is that dangerous for children?” Watson said. “Businesses could mitigate exposure to harmful content by not putting personalized ads on children’s personal feeds. They could unallow unknown users to contact children’s accounts.”
NetChoice attorney Ambika Kumar said the regulation does violate free speech because it is designed to regulate content on platforms. She also said the law is vague.
“The government cannot enact laws to deter publications of protected speech, period,” she said. “It’s clear that what the Legislature wanted to do was force private services to mitigate the risk that children using those services would encounter harmful content.”
Kumar told the judge that NetChoice’s members want the entire law enjoined, claiming all of its pieces will lead to content restriction.
Watson said NetChoice must prove why businesses have a right to user data. She also pointed the judge to expert declarations on multiple ways that online platforms could protect children without restricting content.
Freeman said she does not have an opinion on whether California's pending law is good or bad. She told Kumar that NetChoice may have identified a “head-on conflict,” by raising the question of whether the law could cause problems for online platforms who must comply with federal and other state's laws around child online safety.
She added she must decide if the law restricts speech or only conduct, and whether she can enjoin only parts of the law if she finds they don’t meet constitutional standards. She said the state interest to protect children could be so broad that this law does not seem very effective and that without an enforceable penalty, businesses could write mitigation plans that don’t do anything.
“I will say that I am most taken by the fact that our Legislature passed this legislation unanimously," the judge said. "That’s a very significant demonstration of the vast and deep support that this legislation has had in the state of California. I don’t think there’s anyone here who would say that protecting children is not a good idea, and not of state interest.”
Freeman did not indicate when she will rule and asked for additional briefs from both sides by Aug. 31. The law does not go into effect until summer 2024.
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