The California Age-Appropriate Design Code Act was framed as a law to protect children’s privacy online, but it is actually a content-based regulation of free speech.
Special to the Vanguard
San Francisco – The American Civil Liberties Union and ACLU Foundation of Northern California filed an amicus brief on Tuesday, urging the Ninth Circuit to continue to block the California Age-Appropriate Design Code Act (CAADCA), a law that impermissibly and unconstitutionally places content-based restrictions on speech in the name of protecting privacy and children online.
The CAADCA violates the First Amendment by burdening online speech and restricting platforms’ editorial discretion. At the same time, it includes consumer privacy concepts that are important for legislatures to enact, and that could survive in another law. The ACLU urges the court to prohibit the enforcement of the CAADCA while leaving the door open to upholding other consumer privacy laws against future First Amendment challenges.
“Legislators around the country are understandably concerned with the privacy, wellbeing, and safety of children. But restricting and burdening speech, including speech that addresses difficult and critical concepts like parental abuse or depression, is not the right policy solution,” said Vera Eidelman, senior staff attorney with the ACLU Speech, Privacy and Technology Project. “The government cannot regulate speech solely to protect kids from ideas it thinks are unsuitable or harmful. Nor can it 
limit adults’ access to speech in the name of protecting children.”
The CAADCA expressly prohibits using a child’s personal information in a “materially detrimental” way, which could include criticizing a child for posting racist videos on social media or censoring articles written by school-shooting survivors recounting their experiences. It also requires websites to assess whether a new service or feature would expose users to “potentially harmful” content and develop a plan to eliminate that risk. This requirement could lead platforms to make their content moderation policies more speech restrictive or not publish certain content at all. In addition, the law also strongly incentivizes sites to engage in age-estimation methods that, ironically, increase consumer privacy and security concerns.
“Strong privacy laws are critical to protecting people of all ages from harm. California has long been on the forefront of crafting privacy laws that complement free speech protections and better protect people in this state and far beyond,” said Jake Snow, staff attorney with the Technology & Civil Liberties Program at the ACLU of Northern California. “The stakes are high to protect privacy and free speech in the digital age, and the court should recognize here that stronger privacy laws have a clear path to satisfy the First Amendment.”
As the ACLU explains in its brief, passing laws that offer stronger consumer privacy protections by default is a vitally important goal – and one that legislatures can accomplish without violating the First Amendment. For example, privacy laws that regulate how an entity that obtained information in exchange for provision of a good or service collects or uses that information do not incur the same First Amendment risks. This includes limits on the collection, use, and sharing of user information accumulated by social media platforms, such as data minimization and setting the highest privacy protections by default. A law can also require the disclosure of factual, noncontroversial information—such as the fact that a user’s geolocation is being monitored—so long as the requirement is reasonably related to preventing deception or otherwise enabling people to make informed consumer choices.
Legislatures have responded to many new mediums—from movies to video games to websites—with unduly burdensome restrictions on protected speech. The courts have consistently struck these efforts down, stating that, even where minors are concerned, the government cannot engage in content-based censorship to protect children. Nor can it limit adults’ access to speech by age-gating content. Today, the ACLU urges the court to continue to block the CAADCA while making clear that other consumer privacy laws are often constitutional. Learn more here.
