Governor Newsom Condemns Lawsuit Against AB 2273 Online Law

Governor Gavin Newsom released a statement on Tuesday against a court case challenging a law passed last year that was intended to protect the data and privacy of children online over free speech and ease of business concerns.

Signed into law in September 2022 by the governor, AB 2273 established the California Age-Appropriate Design Code Act. Under the law, businesses that provide an online service, product, or feature likely to be accessed by children to have high privacy levels included as default and provide privacy information, terms of service, policies, and community standards concisely and prominently for those under 18 to read. In addition, companies would not be allowed to use a child’s personal information, from collecting, selling, or retaining a child’s geolocation, or from having children give personal information.

A Children’s Data Protection Working Group would also be formed by January 2024, to best figure out how to implement the new law by the time of it’s start date of July 1, 2024.

However, NetChoice, a large tech industry group that represents companies such as Amazon, Google, Meta, and TikTok, opposed the law. They pointed out several first amendment issues with the law, as well as infringing on the editorial rights of different websites. Also noted was that possible verification techniques could be even riskier for children, who may give up vulnerable information as a result of simply accessing different websites.

As a result, NetChoice sued the state of California in December. In NetChoice v. Bonta, the group argues that AB 2273, also known as the California Age-Appropriate Design Code Act, violates the first amendment by “hobbling” free speech and that companies would be severely restricted in the editorial decisions over what content they put out on their sites. They also note that the law would lead to over-moderation of content, having the companies “serve as roving censors of speech on the Internet.” The age verification features under the law were also charged with frustrating anonymous and casual browsing and hurting privacy concerns of users.

“In December 2022, NetChoice sued to enjoin and invalidate California’s AB 2273 to defend the First Amendment and the privacy of families online,” the group said in a statement in December. “Our complaint explained: The state of California is violating the First Amendment by telling sites how to manage constitutionally protected speech, not how to secure sensitive data about children. It echoes similar violations in Texas and Florida’s anti-bias laws for failing to honor the First Amendment.”

“Additionally, AB 2733 violates the First Amendment because it deputizes online services to act as roving Internet censors at the state’s behest, compels speech, violates editorial discretion, and is overly vague and broad. AB 2273 undermines children’s privacy by forcing sites, regardless of how secure they are, to track and store information identifying which users are children. Child predators and hackers will be drawn to less secure sites as goldmines for children’s sensitive data. By ignoring the Commerce Clause of the U.S. Constitution, California conflicts with existing federal laws like COPPA that already work to protect kids online nationwide.”

“Parents and guardians are best suited to decide how their families will have an online presence. AB 2273 takes away that freedom and puts it into the hands of the state. The act violates the Fourth Amendment by forcing sites to reveal private internal communications.”

In the past few months, support for NetChoice against the state has grown as more people have grown concerned with internet restrictions and ease of use.

Supporters of the law, in response, have fought back, with many, including bill author Assemblywoman Buffy Wicks (D-Oakland), speaking out against the suit.

Newsom releases statement

On Tuesday, Governor Newsom joined in. In a statement, he vowed that he would continue to defend the bill due to it protecting children and data online.

“As a father of four children, and the Governor of the nation’s most populous state, I am passionate about our state’s efforts to lead this fight for children’s online privacy. No other state is doing more than California to protect kids – shielding them from harmful data mining, violent content, and automatic GPS tracking that allows adults to track down kids. I was proud to sign the bill last year to put California kids first, and I’m ready to vigorously defend it now,” the Governor said on Tuesday.

Despite Newsom’s support, experts noted that it is still an uphill battle to protect the law due to the overall vagueness of the law, as well as many violations against federal law.

“The suit has been turning into a nightmare for them,” explained Gil Patterson, a tech lawyer in Silicon Valley, to the Globe on Tuesday. “It’s one of those laws steeped in good intentions but, when you actually read it and see what it would actually do, is actually brushing against the law. “The people who wrote this should have consulted a tech lawyer and a constitutional lawyer for starters, as well as some tech industry representatives on how to best get this across. They didn’t, and now look where it is. They know they’re in the wrong right now.”

The lawsuit is expected to be heard soon.