We’ve written a lot about AB 2273, California’s Age Appropriate Design Code (AADC) that requires websites with users in California to try to determine the ages of all their visitors, write up dozens of reports on potential harms, and then seek to mitigate those harms. I’ve written about why it’s literally impossible to comply with the law. We’ve had posts on how it conflicts with privacy laws and how it’s a radical experimentation on children (ironically, the drafters of the bill insist that they’re trying to stop experimentation on children).
We’ve also written about how NetChoice, an internet company trade group, has sued to block the law as unconstitutional, and how I filed a declaration explaining how the law would violate the rights of both us at Techdirt and our users.
That lawsuit has continued to move forward, with California filing a laughable reply saying that it doesn’t regulate speech at all. NetChoice has filed its own reply as well, highlighting how ridiculous that is:
The State claims that AB 2273 regulates data management—“nonexpressive conduct,” Opp. 11—not speech. Nonsense. AB 2273’s text expressly requires services to “mitigate or eliminate” risks that a child “could” encounter “potentially harmful … content” online. Content was the through-line in the legislative process: Defendant Attorney General Bonta praised the Act precisely because it would “protect children from … harmful material” and “dangerous online content”—in other words, speech—and Governor Newsom lauded the law for “protect[ing] kids” from harmful “content.” The State’s own expert, who mentions “content” in her declaration 71 times, derides preexisting laws specifically because they “only” cover data management, not content. Radesky Decl. ¶ 98. The State cannot evade the Constitution by pretending the Act regulates only “business practices … related to the collection and use of children’s personal information,” Opp. 11, when the law’s text, purpose, and effect are to regulate and shape online content. Like California’s last attempt to “restrict the ideas to which children may be exposed,” Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 792, 794 (2011), AB 2273 violates the First Amendment
It appears that Governor Newsom may have realized how badly this case is going to go for him. Days after NetChoice filed that reply, Newsom sent NetChoice an angry letter demanding that it drop the case.
The text is quite remarkable… and bizarre. Newsom sounds… angry. Perhaps because he realizes (per the above) that his own words in support of the bill and how it should be used to block “content” are going to make him lose this case.
Enough is enough. In light of new action and findings released by the U.S. Surgeon General, I urge you to drop your lawsuit challenging California’s children’s online safety law.
Except, as we just detailed, the Surgeon General’s report does not find that the internet harms kids, and actually makes it clear that most kids benefit from social media. Straight from the report that it appears Newsom did not read:
A majority of adolescents report that social media helps them feel more accepted (58%), like they have people who can support them through tough times (67%), like they have a place to show their creative side (71%), and more connected to what’s going on in their friends’ lives (80%). In addition, research suggests that social media-based and other digitally-based mental health interventions may also be helpful for some children and adolescents by promoting help-seeking behaviors and serving as a gateway to initiating mental health care.
But, Newsom appears to have only read the headlines that misconstrue what’s in the actual report. His letter then goes into full on moral panic mode:
Every day as our children browse the internet to connect with one another, build community, and learn, they are also pushed to horrific content and exposed to data mining and location tracking. This reality is dangerous to their safety, mental health, and well-being. That’s why, last September, I was proud to sign the California Age-Appropriate Design Code Act — a bipartisan, first-in-the-nation law that protects the health and privacy of children using online platforms and prohibits online services from encouraging children to provide personal information.
Except, nearly everything in that paragraph is wrong. Embarrassingly so. There is no evidence that children are “pushed to horrific content.” It is true that there may be horrific content online, but the idea that companies are pushing kids to that content is not supported by the evidence. Furthermore, it’s rich that he’s complaining about “data mining and location tracking” while saying that this bill prohibits companies from seeking “personal information” from kids when the law’s “age assurance” requirements suggest the exact opposite. To comply with the law, websites will be effectively required to demand information from users to determine a likely age.
As I explained in my own declaration in the lawsuit, at Techdirt we have bent over backwards to learn as little about the folks who read our site as possible. But under the law, we will likely be compelled to institute a program in which we are required to determine the age of everyone who visits. In other words, the law requires more data mining, not less, and explicitly requires it for children.
Newsom continues the nonsense:
Rather than join California in protecting our children, your association, which represents major tech companies including Google, Meta, TikTok, and Twitter, chose to sue over this commonsense law. In your lawsuit, you have gone so far as to make light of the real harms our children face on the internet, trivializing this law as just being about teenagers who “say unkind things, insufficiently ‘like’ another’s posts,” or are unhappy about “the omission of a ‘trigger warning.’”
Again, nothing in this law actually protects children. Instead, it puts them at much greater risk of having information exposed, as we’ve noted. It will also make it next to impossible for children to research important information regarding mental health, or to find out the information they need to help them deal with things like eating disorders, since it will drive basically all of that content offline (at least where kids can reach it).
As for the claim that NetChoice is “trivializing this law,” that’s obviously bullshit to anyone who has read the filings in context (which apparently does not include this angry Governor Newsom). The references in that paragraph are in NetChoice’s motion for a preliminary injunction, but taken completely out of context. They’re not trivializing the issues children face: they’re pointing out that the way the law is drafted (i.e., very, very badly), it also applies to those more “trivial” situations. From the preliminary injunction filing:
AB 2273 also adopts a boundless conception of what speech must be restricted, including speech that cannot constitutionally be restricted even for minors. The requirement that services enforce their own policies, id. § 1798.99.31(a)(9), will lead them to suppress swaths of protected speech that the State could not restrict directly. See supra § IV.A.1.b. The bar on using algorithms and user information to recommend or promote content will restrict a provider’s ability to transmit protected speech based on the user’s expressed interests. And the law’s restrictions on content that might be “detrimental” or “harmful” to a child’s “well-being,” id. § 1798.99.31(a)(1)(b), (b)(1), (3)-(4), (7), could restrict expression on any topic that happens to distress any child or teen. This would include a range of important information children are constitutionally entitled to receive, such as commentary or news about the war in Ukraine, the January 6, 2021 insurrection at the United States Capitol, the 2017 “Unite the Right” rally in Charlottesville, school shootings, and countless other controversial, significant events.
More fundamentally, the “harm” the law seeks to address—that content might damage someone’s “well-being”—is a function of human communication itself. AB 2273 applies to, among other things, communications by teenagers on social media, who may say unkind things, insufficiently “like” another’s posts, or complain harshly about events at school; the use of language acceptable to some but not others; the omission of a “trigger warning”; and any other manner of discourse online. See, e.g., Mahanoy Area Sch. Dist. v. B. L., 141 S. Ct. 2038 (2021) (Snapchat post “fuck cheer” made high school students “visibly upset”)
So, no. The lawsuit is not trivializing harms children face by saying that it’s nothing more than kids saying unkind things, NetChoice is (accurately) pointing out that the broad language of the law means that it could be applied to those situations, rather than ones dealing with actual harm.
It’s pathetic and embarrassing that Newsom would imply that this paragraph was trivializing harms. His complete and total misread of what’s in the lawsuit is trivializing the seriousness of his state’s own law that is violating 1st Amendment rights.
Anyway, Newsom goes on:
Yet at the same time you are in court callously mocking this law, experts are confirming the known dangers of online platforms for kids and teens: Just days ago, the U.S. Surgeon General issued an advisory on the profound toll that social media takes on kids’ and teens’ mental health without adequate safety and privacy standards. Your association and its members may be interested to learn of the Surgeon General’s urgent findings about the sexual extortion of our children, and the alarming links between youth social media and cyberbullying, depression, suicide, and unhealthy and dangerous outcomes and behaviors.
Honestly, this is making me wonder if Newsom ever reads anything. Because, as we discussed that is not what the Surgeon General’s report says at all. It literally says that there are widespread benefits to social media and then says “we do not have enough evidence” regarding whether or not it’s harmful. It notes there are concerns, and some “correlational” studies, but nothing proving a causal link. It notes that we need more research on that point.
So how the hell is Newsom claiming that it is claiming there is a “profound toll” from social media? The report does not say that.
As for the “Surgeon General’s urgent findings about the sexual extortion of our children,” again Newsom is blatantly misstating what the report says. It notes that the internet has been used for sexual extortion, which is a fact, but nothing in the AADC will stop bad people from being terrible. The report does not say anything about this fact being “urgent” or requiring social media companies to magically make people stop being bad. It just mentions such things as the kind of problematic content that exists online.
As for the “alarming links between youth social media and cyberbullying, depression, suicide, and unhealthy and dangerous outcomes and behaviors” that’s AGAIN misreading the Surgeon General’s report. Again, it does mention those things, but does not discuss “alarming links.” It highlights correlational concerns again, and suggests further research and caution. But does not mention any sort of causal link, alarming or not.
In fact, with regards to cyberbullying, the Surgeon General’s recommendations talk about better educating teachers, parents, and children on how to deal with such things. And, its one policy recommendation around cyberbullying is not to force websites to censor content, as the AADC does, but rather to “support the development, implementation, and evaluation of digital and media literacy curricular in schools and within academic standards.”
In other words, what the Surgeon General is kinda saying is that our policy makers are the ones who have failed our kids by not teaching them how to be good digital citizens.
Governor Newsom, that one’s on you.
So, so far we have Newsom lying about the law, lying about the filings from NetChoice, and now lying about the Surgeon General’s report. I know it’s a post-truth political world we live in, but I expect better from California’s governor.
But he’s not done yet:
The harms of unregulated social media are established and clear.
The Surgeon General’s report — not to mention the even more thorough report from the American Psychological Association — literally say the opposite. They say it is not clear, and much more research needs to be done.
Governor Newsom, you should stop lying.
It is time for the tech industry to stop standing in the way of important protections for our kids and teens, and to start working with us to keep our kids safe.”
Stomping on 1st Amendment rights and lying about everything is not “keeping our kids safe” Governor.