EFF to Court: Strike Down Age Estimation in California But Not Consumer Privacy

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The Electronic Frontier Foundation (EFF) called on the Ninth Circuit to rule that California’s Age Appropriate Design Code (AADC) violates the First Amendment, while not casting doubt on well-written data privacy laws. EFF filed an amicus brief in the case NetChoice v. Bonta, along with the Center for Democracy & Technology.

A lower court already ruled the law is likely unconstitutional. EFF agrees, but we asked the appeals court to chart a narrower path. EFF argued the AADC’s age estimation scheme and vague terms that describe amorphous “harmful content” render the entire law unconstitutional. But the lower court also incorrectly suggested that many foundational consumer privacy principles cannot pass First Amendment scrutiny. That is a mistake that EFF asked the Ninth Circuit to fix.

In late 2022, California passed the AADC with the goal of protecting children online. It has many data privacy provisions that EFF would like to see in a comprehensive federal privacy bill, like data minimization, strong limits on the processing of geolocation data, regulation of dark patterns, and enforcement of privacy policies.

Government should provide such privacy protections to all people. The protections in the AADC, however, are only guaranteed to children. And to offer those protections to children but not adults, technology companies are strongly incentivized to “estimate the age” to their entire user base—children and adults alike. While the method is not specified, techniques could include submitting a government ID or a biometric scan of your face. In addition, technology companies are required to assess their products to determine if they are designed to expose children to undefined “harmful content” and determine what is in the undefined “best interest of children.”

In its brief, EFF argued that the AADC’s age estimation scheme raises the same problems as other age verification laws that have been alm

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