Judge Gives 'Short Shrift' to NetChoice Arguments in Calif. Kids Privacy Case
A federal district court judge seemed skeptical of several tech industry arguments against California’s 2022 Age-Appropriate Design Code Act at oral argument Thursday. However, U.S. District Court for the Northern District of California Judge Beth Freeman also asked if she should wait for the U.S. Supreme Court to possibly rule on age-verification mandates in Free Speech Coalition v. Paxton.
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The 9th U.S. Circuit Court of appeals last summer upheld the district court’s preliminary injunction against the data protection impact assessment requirement in the kids’ privacy law but remanded it to the lower court for further consideration on other aspects of the law (see 2408160015). Back in district court, NetChoice sought another preliminary injunction. In a Dec. 6 filing, California urged the court to deny that request, arguing that NetChoice hadn’t built a factual record, which the 9th Circuit “found lacking.”
Judge Freeman grilled NetChoice on many of its claims, including those that were privacy related. “The only piece I’m inclined to look at for Section 230 preemption is the enforcement of the community standards,” she said. “I don’t think [citing the Commerce Clause is] a good claim” and “I can’t tell at this point that this act would be incompatible with” the Children's Online Privacy Protection Act. "I know I'm giving short shrift" to NetChoice arguments, said Freeman. “This is an indication of how I'm looking at them.” Later, the judge suggested that NetChoice is “going to lose” on multiple claims where she doesn’t “know what you’re asking.”
SCOTUS heard oral argument last week in the Paxton case, which partly concerns privacy matters raised by a Texas anti-porn law that mandated using such technology to restrict access to kids younger than 18. Freeman said that case’s debate about age verification complicates the California case, though she also noted that California’s law requires age estimation only. "Should I simply defer on this until the Supreme Court issues its decision?” Freeman asked in her opening address to plaintiff NetChoice and defendant California at the argument Thursday. “I think that actually might be the wisest thing to do.”
The district court needn’t wait for a SCOTUS ruling because that case concerns an anti-porn statute, argued Ambika Kumar, a Davis Wright attorney representing NetChoice. Kumar raised doubts that the high court’s ruling would be written broadly enough to affect other cases about age verification. “I don't think that case is necessarily going to implicate the issues in this case.”
Freeman suggested that companies can estimate ages using data they already have. But Kumar disagreed that services covered by the law have all the information they need to know if a user is at least 18. Doing that is expensive and raises privacy concerns, the NetChoice lawyer said. “People will have to give up their privacy, and if they give up their privacy, they're less likely to access speech.”
California DOJ attorney Kristin Liska stressed that the design-code law is about privacy, not censorship, responding to Freeman's questions about how the law might implicate speech. "We're concerned about the privacy and safety of children and the ways in which data is being used for children,” Liska said. “This isn’t about speech the government doesn't like. This is about data collection.”
State law requires that companies estimate users’ age -- or else they can’t scrape their data, said Liska: No content will be blocked. Also, the California attorney pushed back against the idea that it’s burdensome for companies to estimate ages. If a company has already collected "72 million data points on a child, [it] can probably estimate that child's age,” she said.
As the judge considers what to do, Freeman said she would keep in mind that the parties agreed to hold off implementing the California law until March 6.