Upheld Calif. Social Addiction Policy Could Pave Way for More Laws

In November, NetChoice sued Attorney General Rob Bonta (D) over SB-976, alleging that it undermines free speech and privacy principles, leaving Californians at risk of data breaches and identity theft, among other concerns. But ruling on a motion for preliminary injunction, the district court said that NetChoice didn't prove that the law would infringe on expression, rejecting the largest parts of NetChoice’s challenge. NetChoice appealed the decision and requested that the law not take effect until the 9th Circuit hears the case. The district court granted that request Friday.

“It is easy to connect on social media, but in some circumstances, those connections may degrade the quality of our interactions with each other in ways that amplify rather than reduce loneliness,” wrote District Court Judge Edward Davila in the decision on the preliminary injunction. “Just as news travels quickly, so does misinformation. And much like those working to better the world may leverage social media platforms to reach a wide audience, so can those seeking to do harm.”

The decision “is part of an encouraging trend we’re seeing in litigation since the Supreme Court’s NetChoice v. Moody opinion,” said Tom McBrien, counsel for the Electronic Privacy Information Center (EPIC). In that case, which concerned an industry challenge of a Florida social media law, “the Supreme Court explained that judges are only able to distinguish between unconstitutional and constitutional laws when parties construct detailed factual records and make specific legal arguments. This was a blow to Big Tech’s litigation strategy over the past few years to bring very broad, abstract First Amendment challenges with barebones records in attempts to overturn regulations of their business activities.”

The challenged 2024 California law makes it illegal for addictive internet-based services and applications to provide an addictive feed to a user younger than 18 unless the operator does not know that the user is a minor. Beginning in 2027, the operator must reasonably determine whether a user is not a minor before showing an addictive feed.

“There is mounting evidence showing the devastating toll that social media addiction can have on our children's mental health and well-being," said Bonta in a news release last week. "This addiction is not an accident; it is fed by algorithms deployed by Big Tech."

The court upheld most of SB-976 except for two parts, citing free speech concerns. It rejected part of the law regulating when notifications can be sent to minors; the law prohibited push notifications during school hours and at night for users younger than 18. Additionally, it rejected the requirement that a platform annually disclose the number of minors using it.

“There are two  important takeaways from the ruling -- one regarding the limitation of personalized feeds ... that are intended to keep kids hooked to their devices, and the other regarding the use of age assurance," said Daniel Weiss, chief advocacy officer at Common Sense Media. NetChoice objected to both, but the court allowed them. “We are disappointed that the court found in favor of NetChoice regarding the tech company association's objection to the law's ban on notifications during school and overnight hours, and we hope that this is only a temporary setback.” 

McBrien was “happy to see that the court recognized that NetChoice had failed to establish enough facts and to make its arguments with the specificity required for a successful First Amendment challenge when it came to age assurance and engagement-based feeds.”  

While NetChoice is “disappointed that the District Court did not grant our entire preliminary injunction, we are glad it agreed to issue this temporary stay while we appeal,” Paul Taske, NetChoice associate director of litigation, said in a statement. “We look forward to seeing California in the Ninth Circuit to yet again stop the state from creating an online censorship regime."

McBrien, however, believes that last week's ruling will stand. “We are optimistic that the Ninth Circuit will affirm because Judge Davila’s opinion was impressively attuned to the relevant details of the technologies being regulated and the legal standard recently reiterated by the Supreme Court in NetChoice v. Moody,” McBrien said.

This case will provide clarification and precedent for other laws, on the state and federal level, that aim to protect children’s online privacy, said Iain Corby, executive director of the Age Verification Providers Association.

“With each successive ruling from district court and appeals judges, we clearly perceive improved technical understanding on the federal bench that proving your age online without disclosing your identity is a relatively straightforward process, with minimal inconvenience to adults,” said Corby. “Some early attempts at state legislation did not navigate the First Amendment effectively, but a well-drafted bill, narrowly targeting obscene content, that requires state-of-the-art, anonymized, reusable age checks is far from fatally flawed.”

McBrien agreed. “We are hopeful that the approach the judge took in this opinion will influence judges in other cases concerning tech regulation across the country,” he said. “Some laws will violate the First Amendment, and others will not. The devil’s in the details, and we need more judges with the willingness and proper legal frameworks to delve into those details.”