• by Wendy Davis , August 28, 2025

News organizations and civil liberties groups are urging a federal appellate court to preserve a block on California's Age-Appropriate Design Code -- a 2022 law that, if allowed to take effect, could result in the widespread use of online age verification.

The law "should be struck down in its entirety because its age-verification scheme violates the First Amendment rights of all internet users," the Electronic Frontier Foundation, Wikimedia and other digital rights groups say in a friend-of-the-court brief filed last week with the 9th Circuit Court of Appeals.

The New York Times Company, Reuters, Reporters Committee for Freedom of the Press and others argued in a separate friend-of-the-court brief that requiring news sites to estimate users' ages "violates the First Amendment and would impair minors’ and adults’ ability to access public interest news and information."

"People under the age of 18 have a First Amendment right to access the news," they write.

The design code, passed in 2022, would impose new requirements on online companies likely to be accessed by people under 18. Those companies would either have to configure everyone's default settings in the most "privacy protective" way, or use age-estimation techniques to determine which users are minors, and then configure those people's settings in the most privacy protective way unless there's a “compelling reason that a different setting is in the best interests of children.”

The Electronic Frontier Foundation and other watchdogs argue that in practice, the statute would result in companies' use of age verification because they "are highly unlikely to treat all their users as children, as they would forgo the revenue they generate from monetizing adults’ private information."

Originally, the law also would have required online sites likely to be accessed by users under 18 to evaluate whether their services' design could expose minors to “potentially harmful” content, and to mitigate that potential harm.

NetChoice -- which represents large companies including Google, Meta and Amazon -- sued to block the statute, arguing it unconstitutionally restricts speech.

U.S. District Court Judge Beth Labson Freeman sided with NetChoice twice. First, in 2023 she issued an injunction prohibiting enforcement of the entire law -- both the privacy provisions and the requirement to mitigate potentially harmful content.

California appealed that ruling to the 9th Circuit, which upheld the block on the provisions regarding potentially harmful content, but returned the case to Freeman with instructions to conduct additional analysis of the other provisions.

In March, Freeman blocked the remaining portions of the law -- in part, because she found them unclear.

For instance, she wrote, the requirement to use privacy-protective settings unless other settings are in minors' “best interests” is unconstitutionally vague.

“The phrase 'best interests' is not defined in the Act,” she wrote. “Without an understanding of that phrase’s meaning, covered businesses will not have notice of what conduct is proscribed and what conduct is permitted, as required to satisfy the constitution.”

California Attorney General Rob Bonta recently asked the 9th Circuit to lift that block, arguing that the “best interests” standard is not unconstitutionally vague because the phrase is commonly used in child custody and juvenile delinquency cases.

Bonta also argues the provisions of the law at issue are with data protection, not content.

NetChoice countered in a filing earlier this month that the privacy restrictions are directly tied to the type of content hosted by businesses.

"The Act covers only those services 'likely to be accessed' by children, a phrase defined by whether children will find content appealing," NetChoice writes. "The state responds that the coverage definition does not regulate speech -- but ignores that the definition determines what services are regulated based on their speech."

The Times and other journalist organizations agree, writing whether companies are covered by the law will turn on whether their content would appeal to minors.

"A regulator browsing a news website could find that the presence of comic strips, coverage of celebrities and entertainment genres popular among children, and educational material specifically geared to young people would trigger the definition while, say, the AARP’s monthly members-only magazine would not," they write.

They add that the age estimation requirement would make content geared to teens more expensive to host than other types of content.

"Put concretely, an online magazine for teenagers could have to implement an age estimation requirement because it is clearly geared to young adults, whereas one focused on seniors would not have to," they write.

The Electronic Frontier Foundation, Wikipedia and other groups add that age verification mandates could prevent people who don't have identification from accessing online content.

Those groups add that age verification mandates hinder people's ability to access the internet anonymously, and expose people to security risks.

"The law’s online age-estimation regime will make children and adults less safe given the realities of the online advertising industry and data insecurity," they write, adding that documents uploaded by users to verify their ages are often transmitted to third-party age assurance vendors.

"Moreover, almost all websites and services host dozens of third-party trackers managed by data brokers and advertisers that are constantly collecting data about browsing activity," the groups add.

Bonta's office is expected to respond to the arguments next month.