• by Wendy Davis , Staff Writer @wendyndavis, February 8, 2024

California's controversial online safety law “censors the internet under the guise of protecting privacy.”

That's according to tech industry group NetChoice, which is challenging the state's Age-Appropriate Design Code (AB 2273) in court.

The state statute “is one of the most expansive efforts to censor online speech since the inception of the internet,” NetChoice writes in papers filed late Wednesday with the 9th Circuit Court of Appeals.

The California law, passed in 2022, requires online companies likely to be accessed by users under 18 to prioritize their “best interests” and “well-being,” and largely prohibits those businesses from collecting or sharing minors' personal information.

NetChoice sued over the law in December 2022, arguing it's unconstitutional for numerous reasons, including that mandate to prioritze minors' well-being wrongly interferes with web publishers' ability to wield control over their editorial content. The group's lawsuit drew support from a broad array of outside parties including The New York Times Company, which wrote in a friend-of-the-court brief that the law would “do real harm to the First Amendment rights of minors” and news organizations.

Last September, U.S. District Court Judge Beth Labson Freeman in the Northern District of California blocked enforcement, ruling that measure likely violated the First Amendment.

She said in a written decision that a provision in the law banning tech companies from drawing on minors' data for profiling and targeting didn't take into account “beneficial aspects of targeted information.”

California Attorney General Rob Bonta appealed to the 9th Circuit, arguing that the law merely regulates “economic activity” -- meaning companies' ability to harness minors' data.

“The Act restricts businesses’ collection and use of children’s data in specific and circumscribed ways that narrowly target excessive data collection and use that pose risks to children,” his office wrote in papers filed with the 9th Circuit in December.

Outside parties including Fairplay, Center for Digital Democracy and Accountable Tech agreed, arguing that the law represents a valid restriction of so-called “data capitalism.”

NetChoice counters in its new papers that the law is “a direct regulation of speech masquerading as a privacy law.”

The group writes that the design code “adopts an overbroad (and virtually boundless) conception of what speech must be restricted, including speech that cannot constitutionally be restricted even for minors.”

The prohibition on using data for recommendations “will restrict a provider’s ability to transmit protected speech based on the user’s expressed interests,” NetChoice writes.

“The law’s restrictions on content that might be 'detrimental' or 'harmful' to a child’s 'well-being,' ... will chill expression on any topic that happens to distress any child or teen-- whether commentary or news about immigration, the wars in Gaza and Ukraine, or school shootings; medical debates about Ozempic; and countless other controversial, significant events,” the group adds.

Bonta's office is expected to respond to NetChoice's arguments by March 13.