AB-2273 Regulates 'Conduct, Not Speech,' Says Bonta's Appellant Reply

Despite a lower court’s ruling that NetChoice was likely to succeed on its First Amendment challenge to California’s Age-Appropriate Design Code Act, AB-2273, the plaintiff’s arguments are “unpersuasive” and a “misreading of the Act,” said California Attorney General Rob Bonta’s (D) reply brief Thursday (docket 23-2969) in the 9th U.S. Circuit Court of Appeals. Bonta's appeal seeks to reverse the preliminary injunction that bars him from enforcing AB-2273 (see 2402080003).

AB-2273 regulates “conduct, not speech,” the brief said. The act's provisions regulate companies' data and privacy practices, rather than speech, so they don’t “implicate heightened First Amendment scrutiny,” it said. The challenged provisions are “content-neutral regulations subject to intermediate scrutiny -- a standard they satisfy,” it said.

NetChoice’s argument portraying AB-2273 as a “censorship scheme designed to block undesirable content from children” is a “deeply flawed” misunderstanding because the act’s “plain language” regulates a company’s conduct about what information a company may collect about a child, including location data, how it can use that data, and default privacy settings, it said.

Online companies “routinely collect, utilize and share huge amounts of personal information from child users,” often without their awareness, said the brief. That information includes “deeply personal” geolocation data or medical information, it said. Companies’ data use – in algorithms to maximize time spent online or to sell it to third parties – is associated with harms such as “addiction-like dependency on online content, sleep loss, mental health problems, reduced educational attainment, and exposure to predators,” it said.

AB-2273 doesn’t dictate “what speech may, must, or cannot be shown to users, nor does it block any speech from users,” the brief said. It also doesn’t “empower the government to remove, screen, or block speech to users, or to force a company to do so,” it said. The fact that online companies publish speech doesn’t insulate them from regulations that govern the collection, use and sale of user data, especially that of children, the brief said.

NetChoice and amici claim AB-2273 is about censorship and that it regulates the speech online companies show to minors, but NetChoice fails to distinguish “distinct provisions” of the act, said the brief. Several sections regulate companies’ data and privacy practices, including configuring default privacy settings for child users “to the strictest level” and in clear language, it said. It also includes prohibitions on collecting personal information from child users, it said, but the regulations cover conduct, not speech.

On NetChoice’s claims that regulations on collecting or using data trigger First Amendment scrutiny, the act is “not a content-based restriction,” and it doesn’t single out a specific message or viewpoint for less favorable treatment,” said the brief. Its regulations on data and privacy practices “apply to all companies subject to the Act regardless of the expressive message or viewpoint of any speech hosted by or from a company,” it said, comparing AB-2273 to HIPAA in terms of data and privacy.

Addressing NetChoice's argument that restrictions on the use of data will lead to censorship of online speech, “Not so,” said the brief. The act imposes restrictions on using, collecting, and selling personal information, it said. That a company can’t collect or sell a child’s birth date or school class list “does not limit what a company can say to a child online or what speech it can give a child access to,” it said. “Plaintiff points to no message that it cannot say or host because of the Act’s regulation of its data use and privacy practices,” it said.

Some of the act’s regulations of data and privacy practices could have “incidental impact” on speech, the brief said, noting some companies use personal information as an input in an algorithm to select “what video or post to show a user.” But a law having some incidental effect on speech “is not sufficient to trigger heightened First Amendment scrutiny,” it said. After all, every law “imposes some conceivable burden on First Amendment protected activities,” it said. The district court’s order granting a preliminary injunction “should be reversed and vacated."