• by Wendy Davis , Yesterday

In a mixed ruling, a federal appellate panel on Thursday preserved a block on parts of California's kids online safety code, including some provisions restricting companies' ability to harness minors' data.

But the panel lifted the block on other parts of the law, including a requirement that online companies likely to be accessed by people under 18 use "age estimation" technology in certain circumstances.

The appellate judges returned the matter to the district court for additional analysis of the age estimation requirements and other provisions.

The ruling stems from the technology group NetChoice's challenge to California's 2022 Age-Appropriate Design Code.

NetChoice, which represents large companies including Google, Meta and Amazon, argued that the law violates the First Amendment.

Among other provisions, the law prohibits online companies likely to be accessed by users under 18 from collecting or sharing minors' personal information not necessary to provide a good or service, unless the business can show a “compelling reason" that doing so is in the best interests of children.

The statute originally would also 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.

Those provisions were previously blocked by U.S. District Court Judge Beth Labson Freeman on First Amendment grounds, and that block was upheld in 2024 by the 9th Circuit.

Last year, Freeman blocked other portions of the law, including some of the privacy provisions -- partly because she found them unclear.

For instance, she wrote, a provision that would only allow companies to collect or share data 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 appealed to the 9th Circuit, arguing that the “best interests” standard isn't unconstitutionally vague because the phrase is commonly used in child custody and juvenile delinquency cases.

The appellate judges disagreed with Bonta, ruling that NetChoice was likely to prevail with its claim that some restrictions on data use are too vague to be valid. 

But 9th Circuit judges apparently allowed other data provisions to be enforced -- including a ban on the collection and sharing of minors' geolocation data. 

The appellate panel also said NetChoice failed to prove that the age estimation mandate is in itself unconstitutional.

"On the record before us, we cannot say that the age estimation requirement facially violates the First Amendment at all, much less in a substantial majority of its applications," Circuit Judge Milan Smith wrote in an opinion joined by Judges Mark Bennett and Anthony Johnstone.

California Attorney General Rob Bonta called the ruling a "critical win," writing on X that the decision allows "much of" the law to take effect.

NetChoice's Paul Taske, co-director of the litigation center, indicated Thursday that the group will continue to press to block the law in its entirety.

“To the extent there is some additional work to do in the district court, we look forward to making a full showing and striking down California’s Speech Code permanently," he stated.