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Americas+1 212 318 2000
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Asia Pacific+65 6212 1000
By Joyce E. Cutler
A federal judge Monday blocked California’s first-in-the-nation law requiring children be protected from all online products and services they’re likely to access, handing an early win to the tech industry.
Judge
The law requires platforms such as TikTok, YouTube, Instagram, and online video gaming to boost privacy and safety protections for teens and children, including limiting the amount of information collected. The law passed last year is scheduled to go into effect July 2024.
“The Court finds that although the stated purpose of the Act—protecting children when they are online—clearly is important, NetChoice has shown that it is likely to succeed on the merits of its argument that the provisions of the CAADCA intended to achieve that purpose do not pass constitutional muster.” The California act likely violates the First Amendment, Freeman said.
The California law “goes far beyond the scope of protections” offered by the federal Children’s Online Privacy Protection Act and the California Consumer Privacy Act, according to the order that goes into effect immediately.
Whereas COPPA limits collecting user data by operators of websites and services “directed to children,” the age-appropriate act “’declares that children should be afforded protections not only by online products and services specifically directed at them but by all online products and services they are likely to access,’” the court noted.
The California law protects children under age 18 compared to age 13 for the federal act. The CAADCA requires online providers to create a data protection impact assessment report identifying, for each offered online service, product, or feature likely to be accessed by children, any risk of material detriment to children arising from the provider’s data management practices.
Materials before the court “indicate that the steps a business would need to take to sufficiently estimate the age of child users would likely prevent both children and adults from accessing certain content,” the judge said.
“The Court is keenly aware of the myriad harms that may befall children on the internet, and it does not seek to undermine the government’s efforts to resolve internet-based ‘issues with respect to personal privacy and… dignity,’” Freeman said, quoting the US Supreme Court’s 2011 ruling in Sorrell v. IMS Health Inc.
“However, the Court is troubled by the CAADCA’s clear targeting of certain speakers—i.e., a segment of for-profit entities, but not governmental or non-profit entities—that the Act would prevent from collecting and using the information at issue,” the judge said.
NetChoice “has demonstrated that it is likely to succeed on at least one of its First Amendment theories” in its complaint, Freeman said. The group also showed “a likelihood that it will suffer irreparable injury if the requested preliminary injunction does not issue.” And NetChoice showed “that the balance of the equities and the public interest favor issuance of the requested preliminary injunction.”
“We look forward to seeing the law permanently struck down and online speech and privacy fully protected,” Chris Marchese, Director of the NetChoice Litigation Center director, said in a statement.
Representatives for California Attorney General Rob Bonta (D) said, “We are disappointed by the decision and will respond in court as appropriate. Beyond that, we have no additional comment.”
NetChoice and a slew of tech groups filing briefs in its support argued the law was an unlawful prior restraint, unconstitutionally overbroad, void for vagueness, and is subject to and fails strict scrutiny test.
NetChoice provided evidence indicating that profiling and subsequent targeted content can be beneficial to minors, particularly those in vulnerable populations, Freeman said. For example, LGBTQ+ youth—especially those in more hostile environments who turn to the internet for community and information—may have a more difficult time finding resources regarding their personal health, gender identity, and sexual orientation.
California argued the act merely regulates business practices regarding the collection and use of children’s data, so that its restrictions are only of nonexpressive conduct that isn’t entitled to First Amendment protection, Freeman said.
The act’s age estimation provision “appears not only unlikely to materially alleviate the harm of insufficient data and privacy protections for children, but actually likely to exacerbate the problem by inducing covered businesses to require consumers, including children, to divulge additional personal information,” the court said.
Davis Wright Tremaine LLP and Foundation for Individual Rights and Expression represent NetChoice. The California Attorney General’s office represents the state.
The case is NetChoice, LLC v. Bonta, N.D. Cal., order 9/18/23.
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