The Electronic Frontier Foundation called on the Ninth Circuit to rule that California's Age Appropriate Design Code violates the First Amendment, while not casting doubt on well-written data privacy laws.
EFF filed an amicus brief in the case NetChoice v. Bonta, along with the Center for Democracy & Technology.
A lower court already ruled the law is likely unconstitutional.
EFF agrees, but we asked the appeals court to chart a narrower path.
The lower court also incorrectly suggested that many foundational consumer privacy principles cannot pass First Amendment scrutiny.
That is a mistake that EFF asked the Ninth Circuit to fix.
In late 2022, California passed the AADC with the goal of protecting children online.
It has many data privacy provisions that EFF would like to see in a comprehensive federal privacy bill, like data minimization, strong limits on the processing of geolocation data, regulation of dark patterns, and enforcement of privacy policies.
Government should provide such privacy protections to all people.
The protections in the AADC are only guaranteed to children.
While the method is not specified, techniques could include submitting a government ID or a biometric scan of your face.
In its brief, EFF argued that the AADC's age estimation scheme raises the same problems as other age verification laws that have been almost universally struck down, often with help from EFF. The AADC burdens adults' and children's access to protected speech and frustrates all users' right to speak anonymously online.
EFF argued that the vague terms offer no clear standards, and thus give government officials too much discretion in deciding what conduct is forbidden, while incentivizing platforms to self-censor given uncertainty about what is allowed.
Because age estimation is essential to the AADC, the entire law should be struck down for that reason alone, without assessing the privacy provisions.
If the court instead chooses to address the AADC's privacy protections, EFF cautioned that many of the principles reflected in those provisions, when stripped of the unconstitutional censorship provisions and vague terms, could survive intermediate scrutiny.
EFF has a long history of supporting well-written privacy laws against First Amendment attacks.
We have filed briefs supporting laws that protect video viewing history, biometric data, and other internet records.
We have advocated for a federal law to protect reproductive health records.
We have written extensively on the need for a strong federal privacy law.
This Cyber News was published on www.eff.org. Publication date: Thu, 15 Feb 2024 00:13:04 +0000