Injunction Blocking AB-2273 Is Fraught With ‘Errors,’ Says Bonta’s Opening Brief

Online platforms “facilitate important speech and commerce,” but they also “enable exploitation,” said the opening brief Wednesday (docket 23-2969) of the office of California Attorney General Rob Bonta (D) in the 9th U.S. Circuit Court of Appeals in its appeal of the preliminary injunction that blocks it from enforcing AB-2273, the state’s Age Appropriate Design Code (see 2310240017).

Through automation, “online platforms are able to collect personal data on an unprecedented scale,” said the brief. They also have “an economic incentive to collect and exploit that data” from adult users and children, it said. “The harms that this has caused to children has been extensively documented, leading many, including the U.S. Surgeon General, to express concern,” it said.

Like many states, California has attempted to address these matters through legislation, said the brief. The statute at issue in this case, AB-2273, “places limits on how and when businesses collect and exploit children’s data," it said. It doesn’t “single out businesses based on viewpoint or the content of businesses’ speech,” nor does it regulate what businesses say, it said. AB-2273 is a “neutral” regulation of economic activity that “strikes a balance between the needs of businesses and those of children without impinging on anyone’s speech,” it said.

The district court’s injunction “reflects significant errors of law,” said the brief. The court “mischaracterized as regulations of speech provisions that, in fact, neutrally regulate economic activity, leading the court to apply the wrong standard of review,” it said. It “misapplied” the U.S. Supreme Court’s 2011 decision in Sorrell v. IMS Health, ignoring that factors that led SCOTUS to find fault with the viewpoint-targeted data use restrictions in that case “simply are not present here,” it said.

The district court, relying not on evidence in the record but on “vague speculation” from amicus briefs, “dramatically overstated the effect that various provisions would have on internet speech,” said the brief. It failed to recognize the “linkages” between AB-2273's specific provisions and “the reduction of the specific harms to children” that California, like other states, “is seeking to address,” it said. It also wrongly treated the statute as “an indissoluble unit, in contravention of California severance principles,” it said.

Left uncorrected, these mistakes “could harm not only this attempt by California to address significant risks to children, but other attempts by other governments as well,” said the brief. “The decision should be reversed.”