• by Wendy Davis  @wendyndavis, February 14, 2024

California's new online safety law will turn the state government into “a roving internet censor,” the U.S. Chamber of Commerce told a federal appellate court Wednesday.

The law gives the state attorney general “unprecedented authority to regulate online speech that the government finds 'potentially harmful,'” the business group writes in a friend-of-the-court brief urging the court to find the state's Age-Appropriate Design Code Act unconstitutional.

The California law (AB 2273), 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.

The tech group NetChoice sued over the law soon after its passage, arguing the measure is unconstitutional for several reasons including that a mandate to prioritize minors' “well-being” interferes with web publishers' right to make editorial decisions.

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

California Attorney General Rob Bonta appealed Freeman's ruling to the 9th Circuit, where he argues that the design code merely regulates “economic activity” -- meaning companies' ability to harness minors' data. Outside organizations including Fairplay, Center for Digital Democracy and Accountable Tech agreed with Bonta, arguing in friend-of-the-court papers that the law validly restricts so-called “data capitalism.”

The Chamber of Commerce is one of several organizations to weigh in against the law. Others include the policy group TechFreedom and the tech industry's Computer & Communications Industry Association.

The Chamber of Commerce argues in its friend-of-the-court brief that the law violates the First Amendment by restricting speech based on its content.

“The Act’s key operative terms -- including “harmful,” “detriment,” and “best interests” -- are undefined and directly regulate speech,” the group writes, adding that such language will allow state authorities to subjectively decide what type of speech is harmful to minors.

The result, according to the business group, is that the “compliance burden and chilling effects from AB 2273 will be enormous.”

“Businesses must continuously predict whether their decisions will satisfy California’s expectations of what content is 'harmful' or in a child’s 'best interest,'” the Chamber of Commerce writes. “The Constitution will not bear such imprecision.”

Bonta is expected to respond to the arguments next month.