Reviewing Amicus Briefs Filed in Appeal of California Age Appropriate Design Code Act InjunctionGabby Miller, Justin Hendrix / Jan 8, 2024
In 2022, California passed the Age Appropriate Design Code Act (CAADCA), a law that seeks to “create a safer online space for [minors] to learn, explore, and play.” Last October, Judge Beth L. Freeman of the US District Court for the Northern District of California preliminarily enjoined the California law in response to a challenge brought by NetChoice, a tech lobbying group whose members include Google, Meta, TikTok, and other major social media companies (NetChoice v. Bonta).
Judge Freeman concluded that NetChoice demonstrated a likelihood of success in proving the Act is “facially unconstitutional” and would violate the First Amendment, and such “speech restrictions” would fail strict or even lesser scrutiny. An appeal by California Attorney General Robert Bonta was filed in the United States Court of Appeals for the Ninth Circuit shortly after.
On December 13, 2023, Attorney General Bonta filed an opening brief in the appeal, arguing that the lower court “mischaracterized as regulations of speech provisions that, in fact, neutrally regulate economic activity, leading the court to apply the wrong standard of review.”
On December 20, the first round of amicus curiae briefs submitted either in support of Attorney General Bonta or neither party were submitted. The authors of the briefs range from design scholars and privacy and First Amendment law professors to organizations like the American Academy of Pediatrics and the American Psychological Association.
Links to the briefs filed last month can be found below, with a short summary of their arguments. This piece will be updated when the next round of briefs are posted.
The briefing schedule indicates the following deadlines for additional documents:
- Feb. 7, 2024: Deadline for the answering brief by the plaintiff-appellee (NetChoice).
- Feb. 14, 2024: Deadline for amicus curiae briefs in support of NetChoice.
- March 13, 2024: Deadline for the final reply brief due from California Attorney General Bonta.
Amicus Curiae Briefs in support of California Attorney General Bonta
The American Federation Of Teachers and the California Federation Of Teachers
- One of the largest teachers’ labor unions in the US, the American Federation of Teachers (AFT), and its California chapter (CFT), filed an amicus brief in support of the California Age Appropriate Design Code ACT with request for the preliminary injunctions’ reversal. The AFT alleges that “surveillance advertising,” or targeted advertising practices used by social media platforms to collect “excessive data” and maximize time spent online exploits young users’ vulnerabilities and affects their sleep, study time, classroom learning, and more. This has diverted schools’ resources away from instructional learning as the unions’ teacher members continue to witness an increase in students’ anxiety, depression, and more from a mental health crisis exacerbated by the addictive nature of social media, according to the brief.
- The filing argues that the collection and trading of data, which makes up nearly all of Google, Meta, Tiktok, and Snaps’ revenue streams, is fundamentally “economic activity” that needs be assessed by the CAADCA’s Data Protection Impact Assessments (DPIA) to change incentives for these businesses that “materially alleviate the harms at issue.” To counter the court’s argument that the Act’s enforcement would likely violate the First Amendment, the brief points to Interpipe Contr., Inc. v. Becerra, which established in 2018 that “a law regulating conduct that merely alters incentives rather than restricts the ingredients necessary for speech does not regulate conduct that is ‘inherently expressive[.]’”
The Amici States
- Attorneys general from Nevada and Washington, DC, along with nineteen other states that signed on, filed a brief asking the court to reverse its decision to block the CAADCA. The “Amici States” largely took issue with the court’s alleged assumption that the First Amendment is implicated by any regulation of information. The brief argues that the court’s “over broad” application of general free-speech principles ignores relevant First Amendment doctrine, subjects consumer-protection regulation to inappropriate means-end scrutiny, and could “strangle” good-faith state efforts to regulate internet practices if widely adopted.
- As laid out by the Amici States, the court’s error in judgment lies in its assumed application of the First Amendment, particularly in its interpretations of the CAADCA’s mandatory reporting and disclosure requirements; businesses’ use of ‘dark patterns;’ and companies’ internal policy enforcement. The brief further took issue with the court’s decision to evaluate the law in its entirety under strict scrutiny, noting that with this logic, “virtually all regulations of the modern information economy would be subject to judicial scrutiny.”
- The brief additionally argues that the lower court ruling infringes on state Attorneys General’s “long-recognized police powers to protect children” dating back to the nineteenth century, such as when child labor laws and protections were challenged by businesses on grounds of violating the Fourteenth Amendment’s Due Process and Equal Protection Clauses—a constitutional reading struck down by the courts. The Amici States also made note of states’ previously successful efforts to protect children from pornography and sexual exploitation online, despite First Amendment challenges in cases like State v. Robins and People v. Hsu.
The American Academy Of Pediatrics And The American Psychological Association
- The AAP and APA argue that there is currently no sufficient comprehensive regulatory framework nationally or in California, and that COPPA, the primary law that provides internet privacy protections for children under thirteen, has increasingly problematic limitations twenty five years after its initial passage. This includes leaving older children without any privacy protections, and age determination practices for users one through twelve that online service providers have consistently fallen short on.
- The amici parties believe it is necessary to expand protections to all children, as opposed to the federal age-13 cutoff, because “adolescence is a critical developmental stage” that can leave them vulnerable to many of the manipulative design and privacy practices used by social media and digital platforms. The brief argues that these companies have the duty to design their online products in child-friendly ways, similarly to regulations for cribs and toys, rather than turning a “blind eye” to “the young people that are widely understood to be spending their time there,” and urges the court to uphold the CAADCA.
The Center For Humane Technology
- The Center for Humane Technology, represented by the Social Media Victims Law Center, the first firm to file product liability claims against social media platforms based on youth addiction, argues that the preliminary injunction should be vacated on grounds that the district court “misapplied First Amendment doctrine to 21st-century Advanced Digital Technologies” and ignored the broader reality of how these products allegedly harm children.
- The brief argues that California is obligated to use its “police power” to protect children from the “well-documented physical and mental health harms” of advanced technologies and their unique characteristics.
- The brief argues that the CAADCA 1) does not encroach on the freedom of expression enshrined in the First Amendment because algorithmic outputs are not “speech” and 2) simply regulates the design of digital products, the code that builds them, and the data that fuels them.” It argues the lower court failed to recognize that the only way to protect kids online is to “regulate their data and code with forward-looking regulatory schemes focused on requiring safe digital designs rather than outcome-based regulations destined to quickly become obsolete.”
- The listed Amici scholars have published extensively on the First Amendment, regulation of addictive technologies, digital product design laws, and public and children’s health in the digital age. They include Micah L. Berman, Susan Benesch, Gaia Bernstein, Brett Frischmann, John Kindt, Kyle Langvardt, Matthew Lawrence, Lawrence Lessig, Harry Levant, Zephyr Teachout, Michael R. Ulrich, and Tim Wu.
- The amici scholars believe that the District Court misapplied the applicable First Amendment principles, first by accepting NetChoice’s logic that functional design categorically implicates the First Amendment and by subjecting it to strict scrutiny. The brief states that “even if some aspects of digital product design regulation impact speech, any regulatory burden would at most constitute a content-neutral time, place, or manner restriction warranting intermediate scrutiny.”
- The CAADCA passes intermediate scrutiny, the amici scholars argue, because it “furthers the California Legislature’s compelling interest in protecting children from the serious health effects of addictive and other harmful online products while only imposing incidental and limited (if any) burdens.”
- The amici scholars urge the District Court to consider two approaches to the CAADCA’s First Amendment implications and a reversal of its preliminary injunction. The first approach is the court ruling that digital product design regulations do not implicate the First Amendment more broadly, and the other is reconsidering the level of scrutiny that sufficiently considers California’s interest in protecting children’s health.
The Electronic Privacy Information Center
- EPIC says the lower court’s injunction calls into question established privacy law including the Children’s Online Privacy and Protection Act.
- EPIC argues that the “lower court’s decision is deeply flawed because it fails to recognize the state’s substantial interest in protecting the privacy of children online and incorrectly analyzes the requirements of the California Age-Appropriate Design Code (‘AADC’). The lower court’s analysis hinges in part on false assumptions that the AADC requires companies to limit access to content and to deploy invasive age verification techniques. The AADC does not require either of those things, and its privacy and design-focused requirements allow for a flexible approach to age estimation that incentivizes companies to provide heightened privacy protections to all users to mitigate harms to children.”
- Further, the lower court “failed to appreciate the specific privacy harms that the commercial collection and use of personal information poses to children and failed to recognize that the AADC is designed to address these harms.”
Elizabeth Denham CBE And Stephen Wood
- Elizabeth Denham, a former Information Commissioner in the United Kingdom and Stephen Wood, a former Deputy Information Commissioner, played a significant role in the implementation of the UK Age Appropriate Design Code, known as the Children’s Code, a regulation implemented in 2020 and on which the California AADCA is based.
- Denham and Wood argue that their experience suggests “that, contrary to the district court’s findings, the AADC—like the Children’s Code—does not impermissibly interfere with protected speech.”
- The brief argues that, similar to the process undertaken in the UK, the AADCA directs the “California Children’s Data Protection Working Group” to deliver a report to the Legislature on best practices for its implementation, but that the Working Group has not yet had the opportunity to undertake this process.
- And, it argues that contrary to NetChoice’s arguments about the detrimental effects of the AADCA, platforms have lauded the Children’s Code in public statements. “There is no evidence that the changes resulting from the Code’s implementation have undermined freedom of expression,” argue Denham and Wood. “But evidence does support that those changes have made a meaningful difference to children’s privacy online.”
Fairplay et al.
- A group including the nonprofits Fairplay Inc., the Center for Digital Democracy, Common Sense, 5Rights Foundation, Children’s Advocacy Institute, Accountable Tech, Beyond the Screen, Children & Screens, Design It For Us, The Tyler Clementi Foundation, Becca Schmill Foundation, and Meta whistleblowers Arturo Béjar and Frances Haugen argue that the CAADCA “does not regulate commercial speech: it regulates data capitalism.” The purpose of the law is to protect children in the context of an exploitative business model, they argue.
- In granting the preliminary injunction, they argue, “the District Court fell for NetChoice’s misdirection: that the CAADCA regulates the free speech rights of companies. The contextual insertion of free speech arguments fails to grasp the reality: Big Tech is not in the market of speech. It is in the business of extracting personal data from users’ interactions, expressions, and preferences and selling that data to various marketing and advertising companies.”
- The brief argues that contrary to the lower court’s opinion the Data Protection Impact Assessment requirement in the CAADCA does not regulate speech, and that there are numerous other laws and regulations both at the federal and state level that require similar assessments that have not been found to be unconstitutional restrictions on speech.
Federal Trade Commissioner Alvaro M. Bedoya
- The Federal Trade Commission, which is the primary enforcer of Children's Online Privacy Protection Act (COPPA), allows states to “write and enforce their own kids’ privacy laws—separate and apart from COPPA—so long as those laws are not ‘inconsistent’ with it.” The CAADCA is one such effort, according to the Commissioner, and the district court did not “adequately consider the full range of harms to children” that the California Act could protect against.
- COPPA’s twenty five year record shows broad consensus in recognizing that the “unauthorized and unnecessary collection, use, retention, and sale of children’s data hurts children and their families,” practices that were not considered in the preliminary injunction’s analysis of the CAADCA’s constitutionality.
- The Commissioner did not request a reversal, instead urging the courts to consider the “full range of harms” the CAADCA could protect children from.
The Lawyers’ Committee For Civil Rights Under Law
- The Lawyers’ Committee for Civil Rights Under Law, a nonprofit legal advocacy organization dedicated to pursuing racial justice, argues that “the district court’s opinion erroneously expanded the scope of First Amendment scrutiny to cover unprotected speech and conduct and then misapplied First Amendment scrutiny, thus striking down a law protecting Black people and other people of color from data-driven discrimination and protecting privacy rights.” Fundamentally, the Committee argues, “Not all information-processing activities are speech and a business’s use of the internet does not transform routine commercial conduct into protected speech.”
- “Laws regulating the use of privacy-invasive data practices play a vital role in protecting civil rights,” the Committee argues, and the CAADCA does so “in several ways,” including by requiring data minimization, data protection impact assessments, and the prohibition on “uses of dark patterns on children.”
- The brief argues that the lower court incorrectly relied on Sorrell v. IMS Health Inc., arguing that the case does not diminish the validity of privacy regulations in general, and that the lower court was flawed in its rejection of the CAADCA’s regulation of unfair and deceptive practices.
Privacy And First Amendment Law Professors
- The amici parties, defined as law professors and scholars of data privacy, constitutional law, and the First Amendment, include Hannah Bloch-Wehba, Danielle Keats Citron, Julie E. Cohen, Mary Anne Franks, Woodrow Hartzog, Margot E. Kaminski, Gregory P. Magarian, Frank Pasquale, Neil Richards, and Daniel J. Solove.
- The amici scholars, with representation from G.S. Hans of Cornell Law School, argue that data privacy laws are constitutional under the First Amendment, and the lower court’s analysis of the CAADCA threatens to upend much, if not all, of data privacy law. They urge the court to reverse and remand the district court’s ruling.
- The brief argues that “most data privacy regulations fail to trigger any First Amendment scrutiny, as they function as economic regulations that only incidentally burden speech.” However, If the courts find that the CAADCA implicates First Amendment review, the amici scholars argue that it at most qualifies as “commercial speech” and thus warrants only intermediate scrutiny, rather than the strict standard applied in the preliminary injunction. They additionally note that following the Supreme Court’s decision in Sorrell v. IMS Health, other courts have evaluated data privacy laws that applied intermediate scrutiny and were found constitutional.
Amicus Curiae Briefs in support of neither party
The Princeton University Center For Information Technology Policy, Tech Policy Clinic
- The Princeton University Tech Policy Clinic makes a narrow argument around whether provision of the CAADCA that addresses the use of dark patterns by online services “runs afoul of the First Amendment.”
- The brief argues that the provision “passes muster under the First Amendment because it is directed at non-expressive conduct” and that “even if viewed as a commercial speech regulation, the Act’s provision is a reasonable, content-neutral regulation aimed at preventing unfair or deceptive practices from harming vulnerable users.”
- The brief cites multiple enforcement actions, including by the FTC and the New York Attorney General, that illustrate the harms of dark patterns, and argues that the CAADCA is consistent with established consumer protection law.
- Finally, the brief argues that even if the CAADCA were to be regarded as regulating commercial speech, it would still be permissible under the “Central Hudson test,” which evaluates commercial speech regulation. The CAADCA meets the threshold for the test since “the regulation of dark patterns mainly concerns regulating potentially misleading interfaces that induce users to take actions they would not have otherwise chosen.”
The Institute For Law, Innovation & Technology, Temple University Beasley School of Law
- The Institute for Law, Innovation & Technology at the Temple University Beasley School of Law focuses on the Data Protection Impact Assessment (DPIA) component of the CAADCA.
- “Categorically invalidating a state law with potentially national and international implications should, at the very least, be premised on an accurate and nuanced understanding of this important and widely used technical tool,” the Institute states.
- The Institute points out such assessments are common; nearly half of US states either currently require DPIAs or are considering legislation to implement them, according to the brief, and they are used widely in Europe. In the US, they are rooted in federal privacy law going back to the 1970s.
- Similar to the brief from Denham and Wood, the Institute notes that the law sets in place a working group procedure to further advise the legislature on how the law should be implemented, “although the facial challenge at bar did not allow that process to unfold.”