For Immediate Release
December 22, 2023
Groups representing nearly 2 million educators, physicians, legal experts, tech whistleblowers, technologists, plus 21 bipartisan state Attorneys General, and the FTC file briefs urging Ninth Circuit to block Big Tech’s effort to weaponize First Amendment, overturn the nation’s first comprehensive children’s privacy law and imperil existing consumer safety laws
Tech Justice Law Project (TJLP) has supported more than 60 experts and advocacy groups, including Accountable Tech – collectively representing more than 1.8 million Americans – in submitting amicus briefs in support of the California Age-Appropriate Design Code (CAADC), a bipartisan law that aims to protect children online. The California law, which is now in front of the U.S. Court of Appeals for the Ninth Circuit, is the latest target of Big Tech’s campaign to overturn tech regulations and avoid accountability through an extreme distortion of the First Amendment.
In their briefs, the amici – which include the American Academy of Pediatrics, American Psychological Association, American Federation of Teachers, George Washington University Law School Professor Daniel Solove, Harvard Law School Professor Larry Lessig, Columbia University Professor Tim Wu, Meta whistleblowers Frances Haugen and Arturo Bejar, the Federal Trade Commission, and a bipartisan group of 21 state Attorneys General – warn of the far-reaching dangers of upholding a September 2023 ruling by the District Court for the Northern District of California.
In that ruling, the court sided with NetChoice, the industry lobbying group funded by Google, Meta, Snap, Amazon and other Big Tech companies, ruling that companies have First Amendment rights to design harmful platforms and to collect and monetize children’s data. In holding that a corporation’s business activity is protected First Amendment speech, the amici warn, the current ruling imperils safety laws both on and offline – including common sense laws regulating polluters, pharmaceutical giants, Big Tobacco, and gun manufacturers.
“NetChoice’s attempt to frame corporate business activity in regards to kids’ data and the safety of their platforms as protected First Amendment speech is grossly inconsistent with legal precedent,” said Meetali Jain, Director of Tech Justice Law Project, an initiative dedicated to building equitable legal ecosystems fit for the digital age. “If collecting data on kids, and harmfully designing user interfaces is First Amendment protected speech, everything is First Amendment speech, making all corporate business activity nearly impossible to regulate.”
Signed into law in September of 2022, the CAADC requires tech companies to safely design their products and default to high privacy settings for children. Soon after the law went into effect, it faced a lawsuit by NetChoice, which represents the country’s largest tech companies, arguing the law “violates free speech rights under the First Amendment.”
In their briefs filed on December 20, 2023, the amici outlined how NetChoice weaponized and misrepresented the First Amendment to argue Big Tech companies have a Constitutional right to deploy addictive technology, and to collect, use, and share kids’ data for profit.
“Big Tech has lost in the court of public opinion and has now turned to our courts to wage their desperate and dangerous war to push back against any effort to rein them in,” said Nicole Gill, Executive Director of Accountable Tech. “But the broad group of experts and advocates who filed briefs against Big Tech today is an indication of the groundswell of support that exists for holding Big Tech companies accountable.”
“The district court failed to appreciate the specific privacy harms that the commercial collection and use of personal information poses to children and failed to recognize that the AADC is designed to address these harms,” writes the Electronic Privacy and Information Center. “The AADC’s assessment and privacy protection mandates are all tied to the use of kids’ personal information and do not direct companies to block any content or exclude any users.”
“Pediatricians and child health providers often state that children are not just little adults; they differ physically, psychologically, and emotionally in ways that make them more vulnerable to certain conditions and experiences than adults, including their susceptibility to data-driven marketing practices and manipulative design,” writes the American Academy of Pediatrics and the American Psychological Association. “The current regulatory environment not only does not require companies to design digital products used by children and teens so they can be used by them safely, but it encourages them to ignore the existence of their youngest users altogether. This status quo is not tenable.”
The lawsuit filed against the CAADC is one of many initiated by NetChoice, the longtime Big Tech lobbying organization whose focus has now turned to using the courts to overturn state and federal laws after repeatedly losing in the court of public opinion. The protection of online users continues to take a backseat as NetChoice aims for complete autonomy over users’ data privacy, including children, and freedom from any oversight into how their platforms are designed. Since consumers began demanding more ownership and protection over their data, NetChoice has invented increasingly aggressive and novel legal theories to challenge regulations in courts across the country, their “Anything Regulating Corporate is First Amendment-Protected Speech” argument being their latest legal gambit.
In its September 2023 ruling, the District Court for the Northern District of California ruled in favor of NetChoice and applied a preliminary injunction against the CAADC, which prevented the law from taking effect. California Attorney General Rob Bonta subsequently filed an appeal against the injunction. The case will be heard by the U.S. Court of Appeals for the Ninth Circuit in early 2024.
As more states, such as Maryland and Minnesota, continue their efforts to pass legislation based on the CAADC model, the Ninth Circuit’s ruling will have vital implications for the future of any jurisdiction’s ability to protect children’s privacy and better regulate the internet, as well as Big Tech’s continued efforts to block these laws.
Below, is a list of the submitted amicus briefs to the U.S. Court of Appeals for the Ninth Circuit in support of California Attorney General Bonta’s appeal.
Submitted Amicus Briefs Include:
- Law professors focused on the First Amendment and data privacy, including Hannah Bloch-Wehba, Danielle Keats Citron, Julie Cohen, Mary Anne Franks, Woodrow Hartzog, Margot Kaminski, Gregory Magarian, Frank Pasquale, Neil Richards, and Daniel Solove
- Law professors focused on the First Amendment and design, including Micah Berman, Susan Benesch, Gaia Bernstein, Brett Frischmann, John Kindt, Kyle Langvardt, Matthew Lawrence, Lawrence Lessig, Harry Levant, Zephyr Teachout, Michael Ulrich, and Tim Wu
- Leading children’s advocates and Meta whistleblowers Center for Digital Democracy, Common Sense Media, 5Rights Foundation, Children’s Advocacy Institute, Accountable Tech, Beyond the Screen, Children & Screens, Design It For Us, The Tyler Clementi Foundation, Becca Schmill Foundation, Arturo Béjar, Frances Haugen
- Electronic Privacy Information Center (EPIC)
- The American Academy of Pediatrics, the American Psychological Association, and the California Academy of Child and Adolescent Psychiatrists
- The American Federation of Teachers and the California Federation of Teachers
- Former Commissioner Elizabeth Denham and Deputy Commissioner Stephen Wood of the UK Information Commissioner’s Office
- A group of technologists, led by Princeton Center for Information Technology and Policy
- Temple University Institute for Law, Innovation and Technology
- Federal Trade Commission Commissioner Alvaro Bedoya
- A group of twenty-one bipartisan state Attorneys General, including Nevada, The District of Columbia, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Illinois, Maryland, Michigan, Minnesota, Mississippi, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, and Washington
- The Center for Humane Technology
- The Lawyers Committee for Civil Rights Under Law