A federal judge has issued an order blocking a California law that would force online companies and social media platforms to estimate the ages of people who visit their sites and protect children from seeing content that could cause harm. He argues that the law likely violates the First Amendment and would likely lead to government-fueled censorship.
The law in question, the California Age-Appropriate Design Code Act (CAADCA), is one of several recent bills that seek to “child-proof” the Internet by requiring age checks on users or by restricting content. CAADCA, which passed unanimously by the state Legislature in 2022 and was supported by Democratic Gov. Gavin Newsom, requires every business in the state with an online component to prepare a report showing how children would access any new good or any new service they provide, and investigates and takes into account all types of ‘harm’ that children may encounter. Companies that fail to comply with the law face fines of up to $2,500 per violation.
NetChoice, a trade group that represents technology companies, filed a lawsuit earlier this year in an attempt to block the law. In NetChoice v. Bontathe trade association argued that this overly broad law violates the Constitution by “enacting.”[ing] a system of prior restraint regarding protected expression, using undefined, vague terms and creativity[ing] a regime of proxy censorship, forcing online services to restrict speech in ways that the state could never do directly.” In short, the end result of the law would require companies and online platforms to censor content to prevent children from seeing it , even though much of this content is likely protected First Amendment speech.
On Monday, U.S. District Judge Beth Labson Freeman of the U.S. District Court for the Northern District of California, San Jose Division, agreed and blocked the state’s law, which was expected to go into effect on July 1, 2024.
“[T]The material before the Court shows that the steps a company would have to take to adequately assess the age of child users would likely deprive both children and adults of access to certain content,” Freeman wrote. “The age assessment and privacy provisions thus appear likely to hinder the ‘availability and use’ of information and regulate speech accordingly.”
Critics of the law have noted that rather than protecting children’s privacy, CAADCAs would likely do the exact opposite by forcing online platforms to collect personal information to comply with the law. Freeman agreed: “Based on the material before the Court, it appears not only unlikely that the CAADCA’s age assessment provision will substantially alleviate the harm of inadequate data and privacy protections for children, but will actually exacerbate the problem by to require covered businesses to require consumers, including children, to disclose additional personal information.”
In the ruling, Freeman embraces, notes and supports the arguments presented in an amicus brief from Eric Goldman, professor of law at Santa Clara University School of Law, on the many constitutional and privacy flaws within CAADCA. Goldman also wrote a policy brief for the Reason Foundation (the nonprofit think tank that publishes Reason), further explaining the law’s many problems.
“Imagine if, to protect children from seeing or purchasing potentially harmful products, you had to share your government-issued ID and wait for verification before you could enter a store — groceries, gas stations, liquor stores, bookstores, garden stores , etc. That would be an extraordinary breach of your private information just to shop or surf,” Goldman warned.
The Supreme Court has in the past rejected government attempts to mandate age verification for access to online content, saying it is unconstitutional as it is an overly restrictive solution that requires people to potentially give up their anonymity to participate in online speaking (and reading) that is protected by law. the First Amendment.
That logic remains true, and all these proposals for new age verification run into the same problem in the courts. A law that claims to protect children from harm cannot lead to blanket censorship of online expressions.
NetChoice is of course happy with the ban.
“We appreciate the court’s thoughtful analysis of the First Amendment and its decision to prevent regulators from violating the free speech and online privacy rights of Californians, their families, and their businesses as our case progresses,” said Chris Marchese, director of the NetChoice Litigation. Center, in a prepared statement. “We look forward to seeing the law permanently struck down and online speech and privacy fully protected.”
The battle is far from over. But given the court’s history in similar cases (a similar ruling came in August on an age verification law in Texas), lawmakers should take it into account before shouting “Think of the children!” to use. fear mongering to push for more online censorship.