A state law that would limit online businesses’ use of information they gather from users younger than 18, and require them to take steps to protect minors’ privacy, was blocked Monday by a federal judge, who said it appears to violate the companies’ freedom of speech.
AB2273 by Assembly Member Buffy Wicks, D-Oakland, passed both legislative houses unanimously last year and was due to take effect next July. Modeled on a recent law in the United Kingdom, it would require businesses to report to the state on any product or service they offer on the Internet that is likely to be accessed by those under 18, and provide plans to reduce any harms minors might suffer. It also prohibits businesses from collecting most types of personal information about users under 18, including their physical locations.
“Children under 18 face a number of adverse impacts due to their interactions with the online world, including bullying, mental health challenges and addictive behaviors,” Wicks’ office said, according to a bill analysis.
But U.S. District Judge Beth Labson Freeman of San Jose said Monday that AB2273 interferes with businesses’ use of the Internet in ways that the state has failed to justify.
“The state has no right to enforce obligations that would essentially press private companies into service as government censors,” Freeman wrote in a ruling granting a preliminary injunction against enforcement of the law.
“The court is keenly aware of the myriad harms that may befall children on the Internet,” she said, but the law singles out for-profit businesses for restrictions that do not apply to other users, such as government agencies or nonprofits, that may also affect minors.
Freeman said the law also fails to define “what uses of information may be considered ‘materially detrimental’ to a child’s well-being.” As a result, she said, some businesses might have to prevent all minors from accessing their online services rather than trying to define those that could harm certain age groups.
The law was challenged by NetChoice, a commercial association whose members include Google, Amazon, Meta and TikTok. NetChoice attorney Chris Marchese praised the judge’s “thoughtful analysis of the First Amendment and decision to prevent regulators from violating the free speech and online privacy rights of Californians, their families and their businesses as our case proceeds.”
Attorney General Rob Bonta’s office said it was disappointed by the ruling and declined to comment further. The state could appeal the injunction to the Ninth U.S. Circuit Court of Appeals in San Francisco.
Consumer and privacy-rights groups supporting AB2273 noted that youths' use of the Internet has increased dramatically since the start of the pandemic — in 2020, according to a bill analysis, 81 percent of those aged 14 to 22 reported that they used social media “daily” or “almost constantly.”
“We have nutrition labels on food packaging, rigorous testing for cribs and car seats, and yet the technology children use daily from the youngest of ages have little to no safeguards,” the advocates said.
But Freeman said the law appears to violate free-speech standards the Supreme Court established in 2011 when it struck down a Vermont law restricting the sale, disclosure and use of information about the prescribing practices of individual doctors, information drug manufacturers used when advertising to doctors.
Based on that ruling, the judge said, a law that like AB2273 “restricts the availability and use of information by some speakers but not others, and for some purposes but not others, is a regulation of protected expression.”
She also cited the state law’s requirement that businesses estimate the age of the audience for the products or services they promote online and provide maximum privacy projections for the youngest members. If a business can’t come up with a reliable age estimate, the law requires it to provide the highest level of privacy for customers of all ages.
This provision “most likely would prevent adults from accessing some content,” Freeman said.
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