California Defends Website Design Law as Protecting Children

A tech industry-backed trade group argued Thursday that California’s first-in-the-nation law is an unconstitutional, overly broad attack on speech and urged a federal judge block the statute from going into effect.

The landmark Age-Appropriate Design Code requires platforms such as TikTok, YouTube, Instagram, and online video games to boost privacy and safety protections for teens and children, including limiting the amount of information collected. The law passed last year is effective in July 2024.

“It seems to me that the laudable goals of this legislation are only met by banning children from the internet, and it’s not going to happen,” said Judge Beth Labson Freeman of the US District Court for the Northern District of California.

NetChoice, whose members include Google, Facebook, and TikTok parent ByteDance, argues the law undermines children’s privacy by forcing sites, regardless of how secure they are, to collect and store the sensitive, personal data of website visitors of all ages every time they visit a website. The group, which seeks a preliminary injunction, contends the law is a content-based prior restraint.

The law is a direct aim on content, said NetChoice’s attorney Ambika Kumar, a Davis Wright Tremaine LLP partner and co-chair of the media law practice, told the court. All the members of NetChoice “in some way, shape, or form do publish speech,” she said.

“It may not be what you think of right away when you think of speech but that’s the way the world operates today,” Kumar said.

Proponents contend the law creates a necessary set of guardrails to reduce harms inflicted on youth served up content in an addicting fashion. The state argues it has an interest in enacting product liability and safety design laws.

“This isn’t a prior restraint because business are not required to restrict speech,” said Elizabeth K. Watson, deputy California Attorney General. Nor do businesses have to get approval from the government about what to post, just create a plan about how they will reduce exposure, and put the plan in a drawer, she said.

Businesses have a non-content based way to assess and mitigate risk, Watson said.

Freeman questioned whether the law is overly broad because it says businesses must apply restricted privacy rules “of anyone you identify as under 18" and treat everyone as if they’re a child. “If so, we’re all going to be watching ‘Bugs Bunny’ and we’re not going to get anything else,” the judge said, adding, “that’s how I see this.”

“I’m not a 12-year-old girl and that’s kind of the target audience for the statute,” the judge said. “I struggle to see the effectiveness of this but maybe that’s in the application.”

Scrutiny, Commerce Clause Issues

The court must decide whether the law implicates speech and what level of scrutiny is needed to make that assessment.

Freeman said she has to define what the government interest is in the law. “I think there is a government interest. I don’t think we can say there isn’t one,” the judge said. Once she decides that, Freeman said, she must “then determine whether this statute will address that in a narrowly tailored way.”

Kumar also noted that the law triggers extraterritorial issues. “It extends to all California residents so if a California resident is in the state of Vermont, the law still applies,” she said.

“It seems to me this law would require business to change their practices nationwide,” Freeman said.

The judge took the arguments under advisement after the nearly two-and-a-half-hour hearing. She requested briefing on whether parts of the law can be severed and on how the law is or isn’t narrowly tailored. The state’s brief is due Aug. 15 and NetChoice’s reply on Aug. 31.

Freeman closed the hearing as she started.

“What this legislation seeks to do is invaluable and recognizing that children are at great risk is something that is on many of our elected officials’ minds,” she said. The question is whether it “meets constitutional muster. I don’t have any opinion one way the other this law is good or bad.”

“This decision will not be out quickly, but I appreciate the law doesn’t go into effect” until next summer, the judge said.

Davis Wright Tremaine LLP and Foundation for Individual Rights and Expression represent NetChoice. The California Attorney General’s Office represents the state.

The case is NetChoice, LLC v. Bonta, N.D. Cal., No. 5:22-cv-08861, hearing 7/27/23.