• by Wendy Davis  @wendyndavis, February 27, 2023

The U.S. Chamber of Commerce is urging a judge to block a California law that aims to protect minors online, arguing that the state law is inconsistent with federal standards.

The California Age-Appropriate Design Code (AB 2273), 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.

The tech industry organization NetChoice recently sued to block the law, arguing both that it violates the First Amendment and that it's inconsistent with the federal Children's Online Privacy Protection Act (COPPA) -- which prohibits online companies from knowingly collecting data from children younger than 13, without parental consent. The federal law includes a provision overriding inconsistent state laws.

The Chamber of Commerce argues in a friend-of-the-court brief filed Fridaythat the California law is invalid because it's far broader than the federal law.

California's law “adopts a new threshold standard -- 'likely to be accessed' -- that by its own terms imposes liability for online practices related to children’s privacy that would not trigger liability under COPPA,” the Chamber of Commerce writes in papers filed with U.S. District Court Judge Beth Labson Freeman in San Jose, California. “It imposes liability on practices related to minors over the age of 13, despite Congress’s intentional choice not to impose liability for such practices. And it adopts numerous compliance obligations that impose liability where COPPA does not.”

The business group adds that the California law “undermines Congress’s goal of a flexible, parental consent-based regime by imposing rigid compliance obligations.”

Santa Clara University law school professor Eric Goldman argued in a separate friend-of-the-court brief Friday, arguing that the California law should be struck down under the 1st Amendment.

He points to the law's “age-assurance” provision, which requires online businesses to estimate their users' ages, or else treat the data of all users as if they were children.

That age-estimation requirement “erects onerous barriers that would discourage Internet usage and chill protected speech,” he argues.

Goldman adds that potential age-assurance methods -- such as requesting documents from users, or scanning their facial features -- would in themselves undercut privacy.

“Regardless of the exact form it takes, the ... age-assurance process will act as a burdensome barrier that users must overcome before accessing any website or app,” he argues. “This access barrier will dramatically reduce users’ willingness to consume or contribute content via the website or app.”

California state officials are expected to file a response in April.