Free Expression, Privacy & Data
CDT Joins EFF in NetChoice v. Bonta Amicus Brief
On February 14, CDT joined an amicus brief with the Electronic Frontier Foundation (EFF) in NetChoice v. Bonta in the 9th Circuit. In this case, the industry association NetChoice is challenging the California Age-Appropriate Design Code (AADC) for violating their members’ constitutional rights by forcing them to determine the age of their users and to preclude access to constitutionally protected speech. The AADC imposes a number of restrictions, some of which raise censorship concerns while others would constitute valid privacy protections, in the name of protecting children. The lower court granted NetChoice’s request for preliminary injunction and enjoined enforcement of the full statute (including the privacy provisions) as unconstitutional, but applied a worryingly broad level of review that could have impacts on privacy protections.
CDT and EFF’s brief argues the lower court was correct in its decision to enjoin the law on the basis of its overbroad and unconstitutional age-verification and censorship requirements, but was wrong to simultaneously, and superfluously, hold that the privacy protections in the AADC, if stripped of their concerning aspects, were unconstitutional.
The brief argues that, first, the appeals court should narrow the decision to enjoin the AADC and focus primarily on the unconstitutional age-verification and censorship requirements. Second, the brief argues that, if the court declines to take that narrower approach, the privacy provisions in AADC, viewed independently of the age verification and content restrictions, are constitutional because they pass intermediate scrutiny as a regulation of commercial speech.
