FTC’s Bedoya, 20 States Urge Reversal of Injunction on Calif. Social Media Law

The Children’s Online Privacy Protection Act allows the states to write and enforce their own kids’ privacy laws, separate and apart from COPPA, so long as those laws aren’t "inconsistent" with the federal statute, said FTC Commissioner Alvaro Bedoya in a 9th U.S. Circuit Appeals Court amicus brief Wednesday (docket 23-2969) in support of California Attorney General Rob Bonta’s(D) appeal to reverse the district court’s injunction that blocks him from enforcing AB-2273, the state’s Age Appropriate Design Code (see 2312140003).

The FTC is COPPA’s “primary enforcer,” and the agency wrote its “implementing rule,” said Bedoya’s brief. But Bonta’s appeal involves California’s own efforts “to enact a privacy law to protect minors” in the state, it said: “I have a keen interest in promoting children’s privacy. I also want to make sure that courts give full weight to the many ways in which privacy invasions hurt children.”

The district court “preliminarily enjoined” enforcement of AB-2273 on First Amendment grounds, said Bedoya’s brief. But in analyzing the key provisions of AB-2273 that protect against the unnecessary collection, use, retention and sale of minors’ data, the district court didn’t “adequately consider the full range of harms to children that are created by those practices,” it said.

The 25-year record of COPPA’s passage, implementation and enforcement “illustrates a broad consensus” across government, civil society and industry that the unauthorized or unnecessary collection, use, retention and sale of children’s information endangers children’s safety, exposes children and their families to hacks and data breaches and allows third-party companies “to develop commercial relationships with children that prey on their trust and vulnerability,” said Bedoya’s brief. The district court limited its AB-2273 discussion of harms to profiling that leads to minors being shown harmful content, deceptive design techniques used to keep minors online for longer periods of time and financial losses to minors, it said.

In so doing, the district court considered only “a fraction of the ways” in which the privacy violations that would be prevented by AB-2273 actually hurt kids 12 and under, said Bedoya’s brief. His intent is to ensure that the 9th Circuit “benefits from a more complete record, drawn from the FTC’s experience with COPPA, of how privacy invasions hurt children,” it said.

Bedoya’s amicus brief was among a dozen filed Wednesday in the 9th Circuit, virtually all in support of Bonta’s appeal to reverse the AB-2273 injunction. Jurisdictions across the country “are actively confronting novel and unprecedented threats posed by online businesses to the health of their youngest residents,” said attorneys general from 20 states and the District of Columbia. Those threats range from data-collection practices that violate individuals’ privacy, to website design choices that “induce addiction,” to violations of published terms and conditions “that mislead young consumers about companies’ policies,” the AGs said.

Responding to the “magnitude of the danger,” states have already sought solutions through legislation, investigation and litigation, said the AGs’ brief. They have done so “in good faith,” seeking to balance their concern that children are uniquely vulnerable to harmful online practices “with the important constitutional protections” implicated by regulation of the internet, it said.

“Properly interpreted,” the First Amendment doesn’t “prohibit these efforts,” said the AGs’ brief. But the district court in this case improperly applied a “one-size-fits-all test” to enjoin enforcement of AB-2273, it said. The court’s “overbroad” and mistaken application of “general free-speech principles” to AB-2273 “disregarded California’s sovereign prerogative to protect the health of its children,” it said.

The district court also ignored “relevant” First Amendment doctrine and “overlooked” the actual operation of AB-2273, “subjecting ordinary consumer-protection regulations to inappropriate means-end scrutiny,” said the AGs’ brief. If widely adopted, the district court’s reasoning “could strangle state efforts to regulate harmful internet practices in their infancy,” it said. The 9th Circuit should correct the district court’s “erroneous reasoning” and reverse its order enjoining the enforcement of AB-2273, it said.