EPIC Urges Ninth Circuit to Reverse Decision That Threatens the Future of Privacy

December 21, 2023

Yesterday, EPIC filed an amicus brief urging the Ninth Circuit to reverse a district decision striking down the California Age-Appropriate Design Code, or AADC, based on a dangerously overbroad reading of the First Amendment. As EPIC has previously explained, the decision below is so sweeping that it poses an existential threat to all privacy laws. 

California passed the Age-Appropriate Design Code last year in an effort to promote privacy protections for children online and to ensure that online products and services are designed in ways that enable children to learn, explore, and play with some basic protections. The AADC has three main components: a requirement that companies complete data protection impact assessments, privacy and data protection mandates, and an option to use age estimation to apply the privacy and data protection mandates only to users whom the company believes are kids.

NetChoice, a trade group that represents some of the biggest and most powerful tech companies in the world, challenged the law before it came into force. NetChoice argued, among other things, that the law violated its members’ First Amendment rights to collect and use the personal information of their users. The district court sided with NetChoice, finding that any law that limits the collection or use of data automatically triggers heightened First Amendment scrutiny, and that the AADC failed under such scrutiny because it limited user access to information, required invasive age verification, and otherwise did not address any concrete harms.

EPIC’s brief rebuts the district court’s “false assumptions that the AADC requires companies to limit access to content and to deploy invasive age verification techniques.” As EPIC explained in its amicus brief, 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.” 

EPIC’s brief also explained that the AADC involves age estimation, not age verification, and provided examples of age estimation methods that are not invasive. EPIC noted that “the AADC is fundamentally different from other statutes that seek to prohibit children’s access to online content or services and, thereby, impose substantial age verification burdens on adult users.”

EPIC filed an amicus brief in the district court supporting the AADC. EPIC routinely files amicus briefs defending tech accountability measures against First AmendmentSection 230, and other challenges.

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