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    New California law protects ‘the children’ by destroying free speech
    • June 30, 2023

    In just about one year – July 1, 2024 – California’s Age Appropriate Design Code (AADC) will come into full effect; that is, if it is not struck down in the courts. If enacted, social media companies and other online platforms will face a compliance and liability nightmare.

    California’s Age Appropriate Design Code Act, which passed in 2022, was intended to enforce a premise that on the surface sounds wholly unobjectionable – that those online services which “children are likely to access … consider the best interests of children when designing, developing, and providing that online service, product, or feature.” In practice, the AADC functions by forcing any such website to submit a Data Protection Impact Assessment before offering any new product or service, in which they must identify all “risks of material detriment to children.” 

    This is vaguely defined to encompass anything from exposure to “potentially harmful” content to “whether algorithms used by the online product … could harm children.” And “child” is defined as anyone under 18, which would treat near-high school and some high school graduates the same as kindergartners. 

    Essentially, California regulators would have the power to force websites to take down whatever content or cease any practices they deem “materially detrimental to the physical health, mental health, or well-being of a child.” Websites are subject to harsh per-instance fines for failing to protect children from harms that the law largely does not define. 

    Thus, a law sold as simply protecting childrens’ privacy online quickly turns into something far more comprehensive, which internet law Professor Eric Goldman has accurately called “a trojan horse for comprehensive regulation of Internet services.”  

    Much of the text of the AADC derives from a British law of the same name, which California’s bill text explicitly points to for guidance in enforcing its provisions. The trouble, aside from the law’s incredible vagueness of scope, is that the United States  has something the United Kingdom does not – the First Amendment. While U.S. case law agrees that the government has some degree of duty to protect children from certain kinds of explicit content, such as pornography, even children are afforded a wide degree of First-Amendment-protected access to non-obscene speech.

    The effect this law would have on websites’ ability to carry otherwise-legal speech led the trade association NetChoice to challenge the AADC on First Amendment grounds, and to seek an injunction that would block its implementation while under court review. Writing in favor of NetChoice’s request, The New York Times emphasized that the AADC would, by design, limit minors’ freedom of expression and access to legal content, restrictions which have repeatedly been found unconstitutional by the U.S. Supreme Court. 

    Importantly, the changes websites would have to make to accommodate the AADC would impact more than just California residents and minors. For one example, although the AADC does not mandate it directly, many sites might feel compelled to verify their users’ age, which would obviously have to apply to every user to determine who the minors are. Age verification online remains a difficult problem, risking users’ privacy or else submitting them to biometric scans, and creates another barrier to accessing speech that may itself be found unconstitutional.

    The most perverse incentive of all is that many sites would find it far more cost-effective to simply attempt to ban all users under 18 from using their platforms. This is essentially what happened after the passage of the Children’s Online Privacy Protection Act (COPPA) in 1998, which created such complexity in processing data from minors under 13 that many platforms simply banned them instead. A similar outcome today would be tragic in an era where kids and teens need to develop digital literacy in order to be successful in the workforce. 

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    Conversely, sites might instead comply by effectively treating every user as if they were a minor, restricting the content that every user has access to accordingly. Neither outcome is ideal.

    In the event that California’s AADC survives its legal challenges, there are ways the state’s regulators could at least mitigate its worst effects, starting with providing concise regulatory guidance that gives website operators a greater degree of certainty about how the law will be enforced. Overall, however, the law starts from the wrong premise, as it makes online platforms liable for decisions about the appropriateness of content and services for all minors when, in reality, these questions differ substantially for every parent and child. In spite of Gov. Gavin Newsom’s protestations, it would be a far better outcome for parents, children and internet users in general if California’s AADC were struck down as unconstitutional.

    Josh Withrow is a fellow for the technology and innovation policy program at the R Street Institute.

    ​ Orange County Register