• by Wendy Davis  @wendyndavis, April 25, 2023

California officials are urging a federal judge to uphold a new state law that restricts online companies that are likely to be accessed by minors under 18 from collecting or sharing their personal information, and that says those companies should prioritize minors' “best interests” and “well-being.”

The Age Appropriate Design Code (AB 2273) “serves compelling interests in protecting children from intrusive, privacy-violating practices all too common on the internet today,” California Attorney General Rob Bonta argues in papers filed late last week with U.S. District Court Judge Beth Labson Freeman in San Jose.

The filing come in response to a challenge to the law by the tech industry group NetChoice, which is urging Freeman to block the law.

Among other arguments, NetChoice says the law violates the First Amendment by interfering with decisions about editorial content, and says the mandate to prioritize minors' well-being is unconstitutionally vague.

“The 'harm' the law seeks to address -- that content might damage someone’s 'well-being' -- is a function of human communication itself,” NetChoice wrote in papers filed with Freeman earlier this year.

“A child whose relative died of COVID-19 may find news about the pandemic profoundly upsetting and be 'potentially harmed,' whereas another child would not,” the group added in its request for an injunction.

Bonta's office argues that the law's privacy provisions are valid, writing that companies “have no right to children’s personal information.”

He also contends that the law only restricts companies from using minors' data to make recommendations, but doesn't affect companies' ability to make recommendations that are not based on young users' personal data.

“Nothing in the Act restricts the content that businesses can provide to minors,” state officials contend in their brief. “Businesses can continue to make recommendations to child users, even including recommendations for content the business knows or has reason to know will harm the child; they just may not use the child’s personal information to do so.”

The law itself says companies that develop or provide online services likely to be accessed by children “should consider the best interests of children when designing, developing, and providing that online service, product, or feature.”

The statute also says: “If a conflict arises between commercial interests and the best interests of children, companies should prioritize the privacy, safety, and well-being of children over commercial interests.”

Another content related provision requires online services to enforce “published terms, policies, and community standards established by the business.”

Chris Marchese, director of NetChoice's Litigation Center, says California “is defending a law other than the one it passed.”

“California wants to control online speech and the online experience, which is blatantly unconstitutional,” Marchese tells MediaPost. “We are confident that the courts will see through the weak arguments and rule in the First Amendment's favor.”

NetChoice also argued to Freeman that the privacy restrictions are invalid under the federal Children's Online Privacy Protection Act, which prohibits web companies from collecting personal data of children under 13 without parental consent. The federal law overrides inconsistent state laws.

The California law prohibits online sites that are likely to be accessed by minors from collecting or sharing their personal information -- unless the data is necessary to provide a specific service that the minor is actively using, or unless collecting or sharing the information is in minors' best interests.

Bonta's office argues the federal law only sets out “minimum requirements,” and that California is free to impose additional restrictions.