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Experts say California child privacy law could bring mixed results

Communications experts and interests say California's new bill could have unintended effects on data privacy law in the future.

SACRAMENTO, Calif. (CN) — A new California law requiring web platforms to implement safety settings to protect kids' data has some who study tech communications concerned about potential unintended consequences.

Jane Kirtley, professor of media ethics and law at Hubbard School of Journalism and Mass Communication, thinks Assembly Bill 2273 could create unexpected issues in part because companies may struggle to take steps to “deter” children from their websites. She said it could also unintentionally keep children struggling with sexual identity from informational websites.

Newsom said he signed AB 2273 with the goal to protect the well-being, data and privacy of children using online platforms. The bill establishes the California Age-Appropriate Design Code Act, which requires online platforms to consider the best interest of child users and to default to privacy and safety settings “that protect children’s mental and physical health and well-being,” according to a statement from the governor.

“We’re taking aggressive action in California to protect the health and well-being of our kids,” Newsom said in the statement. “As a father of four, I’m familiar with the real issues our children are experiencing online, and I’m thankful to Assembly members Wicks and Cunningham and the tech industry for pushing these protections and putting the well-being of our kids first.”

AB 2273 prohibits companies that provide online services that could be used by children from collecting, retaining or using any child’s personal information or geolocation, profiling a child or encouraging children to give out 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. 

Newsom said the bipartisan legislation strikes a balance to ensure that technology companies will have “clear rules of the road” while still being able to innovate. The Children’s Data Protection Working Group will be established to deliver a report to the Legislature by 2024 on best practices.

The bill’s co-author Assemblymember Buffy Wicks, a Democrat from Oakland, said in a statement, “As the mom of two young girls, I am personally motivated to ensure that Silicon Valley’s most powerful companies redesign their products in children’s best interest. The Design Code is a game changer, and a major step forward in creating a global standard for the protection of youth online.”

But tech industry groups pushed against the legislation. NetChoice, a Big Tech coalition group with members like Google and Twitter, said in August that Newsom ought to reject the bill because of the possible unintended consequences.

“These laws will make it harder for Peloton to recommend new exercises to teens and Barnes & Noble’s Nook to recommend continuing to the next chapter or starting new books to high schoolers,” said Jennifer Huddleston, NetChoice policy counsel spokesperson, in a statement in August. “California has been a leader in technology development, but today’s actions would give innovators yet another reason to leave the Golden State to avoid overly burdensome regulation that harms families and violates the First Amendment.”

Kirtley also said in an interview that she thinks the law could cause inadvertent issues with free speech.

“I completely understand parents' concerns about the collection and sale of their children's personally identifiable information, and I agree that tech companies should be much more transparent about their practices,” she said. “We've seen 'protecting children' as the pretext for all kinds of regulatory and legislative actions affecting speech, not just in California, such as the violent video labeling law that the Supreme Court struck down, but in Congress as well.” 

She cited historic issues like the Communications Decency Act being initially justified as a way to protect children from unsuitable content, and “safe harbor” times when broadcast media can air adult content at times when children are usually asleep. 

“It seems to me that the California erasure law was predicated on the idea that children really can't meaningfully consent,” she said. “But this law suggests that they can, which seems inconsistent.”

Kirtley said California has been the vanguard of data privacy legislation, but the law’s sponsors may be overstating what AB 2273 can do — and most companies have not practiced privacy by design to date.

“Regulating data collection is one thing. Preventing 'addiction' is something else,” she said. “They'd rather ask forgiveness afterwards than seek permission in advance.”

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