Calif. Social Media Law’s Age Estimation Rule Not ‘Narrowly Tailored,’ Says TechFreedom

TechFreedom opposes government efforts to control online speech, which is “precisely why” it opposes laws like California’s AB-2273 that mandate online age verification, said its 9th U.S. Circuit Court of Appeals amicus brief Wednesday (23-2969). The brief supports NetChoice’s challenge to AB-2273 on constitutional grounds and affirmance of the district court’s injunction that bars California Attorney General Rob Bonta (D) from enforcing the statute (see 2309180063).

The “upshot” about AB-2273 is that its age estimation provision isn’t “narrowly tailored,” said the brief. That’s why the district court ruled that the provision violates the First Amendment, it said.

That’s “the right result,” said the brief. But the U.S. District Court for Northern California could have gone further, it said. Though the court was correct that a high privacy default would have “a vast chilling effect,” so would age estimation, TechFreedom said. A high privacy default chills the covered website, which offers less speech than it otherwise would, it said. Age estimation chills users, “who visit fewer websites, speak at fewer websites, and speak less at websites than they otherwise would,” it said.

The district court understood that AB-2273 will chill users, said the brief. In a section of its opinion “shooting down” California’s argument that AB-2273 doesn’t regulate speech at all, the court noted that age estimation “creates friction” that will frustrate users, “causing them to leave websites without accessing and viewing any content,” it said. But such friction “is only a small part of the overall chilling effect that age estimation will have on users,” it said.

A wide range of experts, politicians and “public intellectuals” are informing the public “of the risks that come with sharing information online,” said the brief. These observers view the matter through different ideological lenses, “and they underscore different dangers,” it said.

But their distinct voices “combine into a unified message” that users should beware of letting a website “gratuitously collect” personal information, said the brief. It’s reasonable to assume that this message, coming at the public from many sources and many directions, is sinking in with a “non-negligible portion” of internet users, it said.

The warnings don’t “always fit into neat categories,” said the brief. The ideological left fears that digital surveillance “will promote corporate power and destroy personal privacy,” it said. The ideological right fears that digital surveillance will “enable political oppression,” it said.

Though their fears are distinct, the two sides “arrive at the same place,” said the brief. Both sides believe that users “should jealously guard their online anonymity,” it said. Both sides warn that anonymity can be lost “through the mishandling or misuse of supposedly protected data,” it said.

To alter public behavior, these concerns “need not be accurate in every particular,” said the brief. What matters is that the public has growing and rational “worries about giving up online anonymity,” it said. In light of those worries, age estimation would, if implemented, have a real and pervasive deterrent effect on online speech and association, it said. As shown by the “extensive commentary” from both the left and the right, AB-2273’s age estimation rule “creates just such a risk,” it said.