Court cites age estimation concerns in halting California’s online child safety law
Federal U.S. judge Beth Freeman has granted a request by NetChoice, to block the California Age-Appropriate Design Code Act (CAADCA). The CAADCA would require special data safeguards for underage online users. In a ruling issued Sept 18, 2023, Freeman stated the law likely violates the First Amendment, and takes issue with the claim that facial age estimation is as minimally invasive as the state claims.
The suit, brought against the state of California by NetChoice, a national trade association of online businesses whose members include Google, Amazon, Meta, TikTok and other online companies, claims that the CAADCA is unconstitutional and preempted by existing federal statutes, like the Children’s Online Privacy Protection Act (COPPA). It also claims that CAADCA provisions would harm their businesses and restrict online freedom of speech.
The ruling by Freeman notes concerns with the likelihood that CAADCA’s age estimation requirement will improve data and privacy protection for children. She notes it may even worsen the problem by requiring businesses to obtain more personal information from consumers, including children. The State argues that age estimation is less onerous than age verification and that minimally invasive tools are available. However, these tools typically require the user to submit a facial scan, or use locally analyzed and stored biometric information.
Judge Freeman cites an amicus brief that argues age estimation without documentary evidence is based on facial recognition, in contrast to the distinction made recently by NIST.
According to Freeman, by requiring that sites estimate the ages of all visitors, the law would erect obstacles for both children and adults alike, thereby restricting legal free speech. She states, “Data and privacy protections intended to shield children from harmful content, if applied to adults, will also shield adults from that same content.”
In her ruling, Freeman objected to several of CAADCA provisions, saying, “Although the stated purpose of the Act — protecting children when they are online — clearly is important, NetChoice has shown that it is likely to succeed on the merits of its argument that the provisions of the CAADCA intended to achieve that purpose do not pass constitutional muster.”
Other courts have determined that state-level age verification laws are probably unconstitutional. In August, a U.S. District court blocked a Texas law requiring age verification for online pornography, saying it would require similar invasive data collection techniques and limit adults’ access to constitutionally protected speech. An Arkansas law restricting underage users’ access to social media was also blocked.