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Court to California: Try a Privacy Law, Not Online Censorship

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In a victory for free speech and privacy, a federal appellate court confirmed last week that parts of the California Age-Appropriate Design Code Act likely violate the First Amendment, and that other parts require further review by the lower court.

The U.S. Court of Appeals for the Ninth Circuit correctly rejected rules requiring online businesses to opine on whether the content they host is “harmful” to children, and then to mitigate such harms. EFF and CDT filed a friend-of-the-court brief in the case earlier this year arguing for this point.

The court also provided a helpful roadmap to legislatures for how to write privacy first laws that can survive constitutional challenges. However, the court missed an opportunity to strike down the Act’s age-verification provision. We will continue to argue, in this case and others, that this provision violates the First Amendment rights of children and adults.

The Act, the rulings, and our amicus brief

In 2022, California enacted its Age-Appropriate Design Code Act (AADC). Three of the law’s provisions are crucial for understanding the court’s ruling.

  1. The Act requires an online business to write a “Data Protection Impact Assessment” for each of its features that children are likely to access. It must also address whether the feature’s design could, among other things, “expos[e] children to harmful, or potentially harmful, content.” Then the business must create a “plan to mitigate” that risk.
  1. The Act requires online businesses to follow enumerated data privacy rules specific to children. These include data minimization, and limits on processing precise geolocation data.
  1. The Act requires online businesses to “estimate the age of child users,” to an extent proportionate to the risks arising from the business’s data practices, or to apply child data pr

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