Tech lobby group’s appeal on kids online safety law denied

In a win for age verification providers and advocates, the lobby group representing many of the world’s largest and richest tech companies has lost an appeal to block passage of the California Age Appropriate Design Code Act (CAADCA). In its decision reversing an injunction granted by the Court for the Northern District of California, the United States Court of Appeals for the Ninth Circuit ruled against NetChoice, whose member companies include Google, Meta, Facebook, Amazon, Netflix, Yahoo and Ebay.

The decision is something of a hybrid, finding that NetChoice did not demonstrate they were likely to succeed in showing that the majority of CAADCA is unconstitutional, notably its provisions restricting the collection, use, and sale of children’s data. But some of it might be.

The court’s opinion does affirm the district court’s decision to agree with NetChoice that it is likely to succeed in showing that the CAADCA’s requirement that “covered businesses opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online facially violates the First Amendment.” The requirement for a Data Protection Impact Assessment (DPIA) is noted as being particularly dubious on a general constitutional level.

However, the appeals court vacates the remainder of the district court’s preliminary injunction order, “which not only failed to properly consider the facial nature of NetChoice’s First Amendment challenges to other provisions of the CAADCA, but also erroneously overstated the likelihood that NetChoice would ultimately succeed in showing that the unconstitutional portions of the CAADCA are not severable from its valid remainder.”

In other words, even if CAADCA can be shown to contain certain constitutional violations – like the requirement for a DPIA, which both courts deemed likely to be proven as unconstitutional – the good stuff is perfectly salvageable (or, in the court’s language, “severable”).

AVPA celebrates decision ruling online age verification not unconstitutional

The Age Verification Provider’s Association offered its own opinion on the ruling on LinkedIn, noting that “the 9th Circuit joins with the 5th Circuit in NOT finding that checking a user’s age online is inherently unconstitutional.”

“Notably, the panel of appellate judges do not repeat the misplaced criticism of Judge Beth Labson Freeman of age estimation, which she wrongly concluded ‘is in practice quite similar to age verification, and… generally requires either documentary evidence of age or automated estimation based on facial recognition.’ Age estimation tech is NOT the same as recognition,” says AVPA, “and there is no need for users to share their ID with a third party to prove their age now document checks can be performed on a user’s own device.”

The post quotes California governor Gavin Newsom, who says of the CAADCA “California enacted this nation-leading law to shield kids from predatory practices. Instead of adopting these common sense protections, NetChoice chose to sue – yet today, the Court largely sided with us.” Newsome is calling for NetChoice to drop its lawsuit.

Au10tx points out that age verification is also an economic issue

One thing is certain: we need better age verification. So says a blog post from Au10tix, reflecting on what regulations like CAADCA mean for businesses and individuals. Authors Amy Lurie and Noa Shai go beyond familiar arguments about pornography and intoxicants, to touch a very sensitive spot: the wallet.

“As tech-savvy moms, we’ve seen firsthand the problems that arise from weak age verification on digital platforms, especially in the gaming world,” they write. “It’s not just about keeping out harmful content – it’s about addressing the behaviors these platforms can encourage. For example, in-app purchases can quickly get out of hand when a child unknowingly racks up charges through a linked credit card.”

This, say the authors, is why “stronger age verification and parental controls, as mandated by new regulations, aren’t just nice to have – they’re necessary.”

Article Topics

Age Appropriate Design Code (AADC)  |  age verification  |  AU10TIX  |  AVPA  |  biometrics  |  California  |  digital identity  |  lawsuits