NetChoice Sues California Over Social Media Design Law

AB-2273 requires social media companies with child users to follow “age-appropriate” design principles. It sets limits on websites’ use of personal information and the collection of geolocation data. It also sets restrictions on dark patterns, or manipulative design features on apps and websites.

The law violates the First Amendment because it “deputizes online services ‘to act as roving Internet censors at the state’s behest,’ compels speech, violates editorial discretion, and is overly vague and broad,” said NetChoice. The group challenged the law’s tracking requirements and data storage requirements and said it contradicts the Children’s Online Privacy Protection Act (COPPA), which is enforced by the FTC. It also violates the Fourth Amendment by “forcing sites to reveal private internal communications,” said NetChoice.

The office for California Attorney General Rob Bonta (D) is reviewing the complaint and looks forward to “defending this important children's safety law in court,” a spokesperson said in a statement Wednesday. The law 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,” said Bonta’s office, citing children spending increasingly more time online.

The law requires companies to identify and mitigate speech that's potentially harmful to users under the age of 18, NetChoice noted in its complaint. The law also directs companies to prioritize speech that promotes users’ “well-being” and “best interests,” it said: “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.” These “draconian” measures will lead to over-moderation of content and restricted access to information for users, said NetChoice. The group asked the court to declare that COPPA and the Commerce Clause in the Constitution preempt AB-2273 and that the law is unconstitutional under federal and state law.

California’s child privacy law “has a lot of moving parts” that could make it a challenge to take down through the courts, said TechFreedom Internet Policy Counsel Corbin Barthold in an interview. It's easy to argue that provisions in the law that could chill internet content creation violate the First Amendment, but language requiring websites to track which users are children don’t fit that bill as easily, he said. A judge ruling on the case might seek to separate the data provisions from the content ones, said Barthold, who opposes the law. “It is zoning regulation for the Internet,” he said. With so many social media and Internet cases in the courts, it's particularly hard to see how NetChoice v. Bonta will play out, Barthold said. U.S. Supreme Court cases such as NetChoice v. Moody, Gonzalez v. Google and 303 Creative v. Elenis involve issues about web content that could affect how judges see this case, he said. NetChoice v. Bonta’s fate in the courts might also encourage or discourage other states trying to pass similar laws, Barthold said.

AB-2273 is a “problematic and vague bill that raises significant First Amendment concerns," emailed Electronic Frontier Foundation Senior Staff Attorney Aaron Mackey. "The law requires any online service that may be used by a child to act in the best interests of children, but provides no definition or clear standards for how they can meet the standard. This vague standard could result in discriminatory enforcement by California officials, which the Supreme Court has recognized as a significant First Amendment concern."