California Age-Appropriate Design Code Act Unlikely to Survive First Amendment Scrutiny: N.D. Cal. | Practical Law

California Age-Appropriate Design Code Act Unlikely to Survive First Amendment Scrutiny: N.D. Cal. | Practical Law

In NetChoice, LLC v. Bonta, the US District Court for the Northern District of California enjoined enforcement of the California Age-Appropriate Design Code Act, reasoning that plaintiffs are likely to succeed on the merits of their First Amendment claims.

California Age-Appropriate Design Code Act Unlikely to Survive First Amendment Scrutiny: N.D. Cal.

by Practical Law Data Privacy & Cybersecurity
Published on 19 Sep 2023 • California
In NetChoice, LLC v. Bonta, the US District Court for the Northern District of California enjoined enforcement of the California Age-Appropriate Design Code Act, reasoning that plaintiffs are likely to succeed on the merits of their First Amendment claims.
On September 18, 2023, in NetChoice, LLC v. Bonta, the US District Court for the Northern District of California granted NetChoice, LLC's motion for preliminary injunction of the California Age-Appropriate Design Code Act (CA Children's Code) (Cal. Civ. Code §§ 1798.99.28 to 1798.99.40), finding several provisions unlikely to survive First Amendment scrutiny (
Order Granting Motion for Preliminary Injunction, NetChoice, LLC v. Bonta, No. 22-08861 (N.D. Cal. Dec. 14, 2022)
).
The CA Children's Code imposes new legal obligations on companies that provide online services, products, or features that children under 18 are likely to access, with enforcement set to begin on July 1, 2024 (see Legal Update, California Passes the Age-Appropriate Design Code Act to Protect Children's Privacy). NetChoice, a national trade association of online businesses, challenged the CA Children's Code as facially unconstitutional and requested a preliminary injunction based on claims that it:
  • Violates the First Amendment and the dormant Commerce Clause.
  • Is preempted by both the federal Children's Online Privacy Protection Act and Section 230 of the Communications Decency Act.
In granting a preliminary injunction, the court found that NetChoice had demonstrated a likelihood of success on its First Amendment claims because several parts of the CA Children's Code likely fail commercial speech scrutiny, including provisions addressing data protection impact assessments and various other obligations and prohibitions. The court did not analyze NetChoice's other claims and enjoined the entire statute, holding that it could not sever the likely invalid portions from the remainder of the CA Children's Code.
The court's order gives companies more time to consider their strategies and may change how they approach complying with the CA Children's Code if courts eventually deem the law consitutional and enforceable.