• by Wendy Davis  @wendyndavis, February 17, 2023

A California law that aims to protect minors online represents “the most extensive attempt by any state to censor speech since the birth of the internet,” the tech industry organization NetChoice says in new court papers.

The law, AB 2273, "will subject a global medium to state supervision and hobble a free and open resource," the group adds.

The organization's papers -- filed Friday with U.S. District Court Judge Beth Labson Freeman in San Jose, California -- come in support of its request for an injunction that would prohibit California from enforcing the law, dubbed the Age-Appropriate Design Code.

The measure, which was passed last year, requires online companies that are likely to be accessed by users under 18 to prioritize their “best interests” and “well-being."

The law also includes privacy provisions that prohibit online sites that are likely to be accessed by minors from collecting or sharing their personal information -- unless it 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.

Late last year, NetChoice filed suit to block the law.

The group argues that the measure should be struck down for numerous reasons, including that the mandate to prioritize young users' well-being violates the First Amendment.

“The 'harm' the law seeks to address -- that content might damage someone’s 'well-being' -- is a function of human communication itself,” NetChoice writes.

“AB 2273 applies to, among other things, communications by teenagers on social media, who may say unkind things, insufficiently 'like' another’s posts, or complain harshly about events at school; the use of language acceptable to some but not others; the omission of a 'trigger warning'; and any other manner of discourse online,” the organization adds.

NetChoice also says the law is unconstitutionally vague, arguing that terms like “best interests” and “well-being” are subjective.

“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 writes. “So, too, might a refugee who immigrated to California and sees photographs of the Ukraine war or crowds at the Mexico-U.S. border, or a teen who is trying to exercise more and sees a suggested TV episode to watch instead.”

NetChoice also argues that the federal Children's Online Privacy Protection Act overrides the California law.

The federal law prohibits web companies from collecting personal data of children under 13 without parental consent. That law also overrides inconsistent state laws.

The tech organization says California's design code is inconsistent with the federal law, arguing that the federal measure gives parents control over data collection from young children, while California's law “takes that parental control away and places a host of new and different state-imposed obligations on services.”

California officials are expected to file their response to NetChoice in April.