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In context: No one would argue against the need to protect children's privacy only, which is why we have the Children's Online Privacy Protection Act (COPPA). However, when such laws impede the lawful consumption or distribution of constitutionally protected speech, we embark on a slippery slope to the totalitarian control of information.
A federal judge has put the California Age-Appropriate Design Code Act (CAADCA) on hold while legal proceedings determine whether the law violated the First Amendment. The California legislature passed AB-2273 on August 30, and Governor Gavin Newsom signed it into law just days ago on September 15. The law intends to address the issue of underage data collection, particularly by social media platforms.
On Monday, US District Judge Beth Freeman granted a preliminary injunction barring it from going into effect until the courts can determine the constitutionality of the law. The tech group NetChoice filed the motion to block, claiming the CAADCA likely violates the right to free speech.
Protection laws for children already exist on the federal level. Lawmakers have deemed COPPA adequate since 1998. Of course, the internet has grown and evolved in the last 25 years, and California feels it needs buttressing at the state level. However, even though the law may comply with California's constitution, it still must pass the sniff test for the US Constitution, which is why NetChoice is contesting it.
Judge Beth Freeman's ruling via NetChioce
Eric Goldman filed an amicus brief arguing that the CAADCA forces website owners to restrict children and adults from engaging in activities protected by the First Amendment. The amicus curiae specifically targets a provision that requires websites to "estimate" users' ages to detect underage visitors. Ironically, platforms would likely have to implement invasive means such as face recognition, thus collecting even more data from minors that the law is meant to restrict.
"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," Freeman wrote in her ruling.
The CAADCA supposedly offers an alternative to detecting children by requiring sites to enforce its data-collection restrictions for all users. However, Judge Freeman noted that this would also work to stifle free speech. Part of the law's goal is to prevent inappropriate targeted advertising to children. So, applying this restriction to adults bans them from viewing otherwise legal content.
"Data and privacy protections intended to shield children from harmful content, if applied to adults, will also shield adults from that same content," wrote Freeman.
The injunction went into effect immediately and will remain until the law is either repealed or approved.