Why I Think California’s Age-Appropriate Design Code (AADC) Is Unconstitutional

February 28, 2023 · by · in Content Regulation, Privacy/Security

I’ve repeatedly expressed my opposition to the California Age-Appropriate Design Code (AADC), and now I’ve put my opposition into more formal terms for a judge. With the pro bono assistance of Jenner & Block, I filed an amicus brief in support of NetChoice’s motion to a preliminary injunction against the AADC. You can read my amicus brief here.

From the introduction:

The AADC’s age-assurance requirement erects onerous barriers that would discourage Internet usage and chill protected speech. These barriers to online movements will change how people use the Internet in ways that will hinder the Internet’s utility to society—and transgress basic constitutional principles. In short, the AADC casts a “dark[] shadow over free speech, [and] threatens to torch a large segment of the Internet community.” Reno v. ACLU, 521 U.S. at 882.

It really was shocking to review the CDA/COPA/baby CDA caselaw from 20-25 years ago, when numerous courts struck down online age verification requirements as unconstitutional. Plus ça change, plus c’est la même chose. I guess we’re going to have to do it all over again. At least, I hope so. If this law isn’t struck down, California voters are going to be livid when they realize how their elected legislators ruined their Internet without actually helping any kids at all.

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Some other filings in the case:

  • NetChoice’s motion for preliminary injunction. The plaintiffs apparently chose not to pursue their ECPA claims. They also did not claim that the AADC violates the CPRA amendment provisions, though I think it plainly does.
  • The Chamber of Commerce’s amicus brief focused on COPPA preemption. “For decades, businesses have devoted significant time and effort to developing compliance programs for the federal Children’s Online Privacy Protection Act (“COPPA”), a nationwide preemptive children’s privacy standard. California’s law would upend these efforts by instituting an inconsistent and unworkable children’s privacy regime. Because the Internet is not constrained by state boundaries, AB 2273 will cast its onerous compliance shadow across the entire country. This statute is the exact type of law that Congress sought to preempt under the federal standard.”
  • The Chamber of Progress et al’s amicus brief says: “The Act’s real-world impact is equally significant: It is likely to harm children around the country as well as the Internet as a whole. It will likely inhibit websites’ content moderation efforts, including efforts to ensure safe and productive online spaces for children. Fearful that the Attorney General may deem certain content “potentially harmful” to or not in the “best interests” of some or all minors, or find a company’s newly required child-centric data protection assessments inadequate, online services will be pressured to identify remote or unlikely harms—and to self-censor accordingly. The AADC will thus discourage websites from hosting and promoting content—for users under the age of 18 and for adults, due to age-assurance challenges—including critical resources that underprivileged children rely on to deal with familial and personal crises, make choices about their reproductive health, and backfill gaps in their education.”
  • [UPDATE: CCIA also filed an amicus brief.]
  • [UPDATE 2: Amicus brief from NY Times and SPLC]

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Prior AADC coverage:

Click on the image to see the animation