NetChoice Suing California for ‘Subjective’ Online Safety Law for Kids That Violates First and Fourth Amendments

California Gov. Gavin Newsom speaks during a press conference in San Francisco, on Oct. 6, 2022. Justin Sullivan/Getty Images

Tech industry group NetChoice has filed a complaint challenging California’s Age Appropriate Design Code Act (AB 2273) law that is aimed at protecting kids from online harm.

AB 2273, passed in August and signed into law by state Democrat Gov. Gavin Newsom a month later, requires companies to analyze and address how their products impact kids, and forces businesses to implement certain protections for young users. This includes automatically placing such accounts on the highest possible privacy setting, and disallowing platforms from identifying the exact location of kids unless a clear indication of such activity is made known to the user.

NetChoice, which includes Meta and Google among its members, claims in the complaint that AB 2273 will subject global platforms to “state supervision.”

The law mandates private firms to identify and “mitigate” speech that is “harmful or potentially harmful” to children. The online platforms will also have to “prioritize” speech that promotes the “best interests” and “well-being” of users.

“If firms guess the meaning of these inherently subjective terms wrong—or simply reach different conclusions than do government regulators—the State is empowered to impose crushing financial penalties,” the complaint states.

“The State can also impose such penalties if companies fail to enforce their content moderation standards to the attorney general’s satisfaction.”

Over-Moderation

Rather than protecting minors, said the complaint, AB 2273 will end up harming them and the internet “as a whole.” Due to “arbitrary application” of the law’s penalties, online businesses might end up over-moderating content “the State deems harmful,” the complaint argues.

The bill also requires businesses to verify the ages of users, which it says will “frustrate anonymous and casual browsing” as well as magnify privacy issues.

The complaint accuses AB 2273 of violating the First Amendment, the Fourth Amendment, as well as the due process and commerce clauses of the U.S. Constitution. In addition, the bill also breaches Article I, Sections 2(a) and 7(a) of the California constitution, it claims.

“NetChoice and its members will suffer irreparable harm—including infringement of their constitutional rights—if AB 2273 is not declared invalid and enjoined before it takes effect,” the complaint stated.

Defending the Law

AB 2273 has received widespread support from children’s rights groups which have been pushing for enactment of such laws to protect minors who are increasingly spending more time online.

In a statement to The Hill, a spokesperson for California Attorney General Rob Bonta (D) said that they are looking into the NetChoice complaint, and considering its defense.

The measure provides “critical new protections over the collection and use of their data and works to address some of the real and demonstrated harms associated with social media and other online products and services,” the statement said.

“We are reviewing the complaint and look forward to defending this important children’s safety law in court.”

AB 2273, which passed the California Senate by a vote of 33–0, was modeled on a UK code of the same name which celebrated its first anniversary in September.

In August, Baroness Beeban Kidron, architect of the UK code and the founder of the 5Rights Foundation, said in a statement that AB 2273 not only sets a standard for children living in California but also paves the way for “the rest of the United States and for the world.”

“The prominence of California in the global tech community makes this a major step forward in ensuring the Age Appropriate Design Code becomes the global gold standard for children’s safety online.”