An increasing number of jurisdictions are proposing and passing legislation aimed at protecting children online. Although approaches vary, from laws prohibiting processing of children’s data without parental consent to flat bans on children accessing social media. Among those approaches, the notion of a “design code” has gained prominence. Design codes extend beyond privacy regulations and require platforms to consider —and mitigate — harms that may stem from content, contacts, or conduct that children may encounter online.

Design codes have their genesis internationally, especially in the United Kingdom’s Age-Appropriate Design Code. Domestically, California’s parallel Age-Appropriate Design Code was the first design code to be passed, and subsequent state and federal legislation have been modeled off of it. Despite the California Code’s laudable goals, it has been criticized both as unconstitutional and as ultimately undermining privacy and safety for kids. Critics contend that the California Code will result in age-gating the internet, increased data collection on children and adults, and barriers to speaking and learning online. Critics also point out that the law’s provisions are overbroad and often vague, leaving businesses unsure how to comply with its requirements.

With the Code set to come into effect next summer, the industry advocacy association NetChoice has filed suit challenging the Code under the First, Fourth, and Fourteenth Amendments and the Commerce Clause of the U.S. Constitution and claiming that the Code is preempted by the federal Children’s Online Privacy Act and Section 230 of the federal Communications Act.

We will explore NetChoice’s challenge, the timeline and outlook for the case and the Code’s implementation, and where children’s online safety goes next.

The California Department of Justice, which is defending the Design Code, was invited to participate in this webinar series, but declined, citing the ongoing litigation.

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Meeting our Speakers

Adam Sieff is a media and constitutional litigator at Davis Wright Tremaine, LLP. A recognized authority on emerging issues involving online speech regulation, he represents internet, media, and technology clients in First Amendment, Section 230, copyright, trademark, antitrust, and related constitutional litigation and appeals, including challenges to state and federal laws. He also counsels media technology associations on legislation and ballot initiatives, and represents nonprofit and issue-advocacy organizations in constitutional rights, voting rights, and civil rights impact litigation, including before the U.S. Supreme Court.

Chris Marchese is Counsel at NetChoice, where he analyzes technology-related legislative and regulatory issues at both the federal and state level. His portfolio includes monitoring and analyzing proposals to amend § 230 of the Communications Decency Act, antitrust enforcement, and potential barriers to free speech and free enterprise on the internet.

Dana Green is Senior Counsel at The New York Times Company, where she advises on newsroom matters, including investigations, and litigates libel, Freedom of Information, intellectual property, and related areas of law. Prior to joining The Times, she was with the First Amendment and media law practice at Ballard Spahr LLP. She is the Chair of the International Bar Association’s Media Law Committee and a member of the boards of the Journalism Refugees Education Fund and Cartoonists Rights Network International. Cody Venzke is a Senior Policy Counsel for Surveillance, Privacy, and Technology at the American Civil Liberties Union, where he leads the ACLU’s work on comprehensive privacy legislation, algorithmic discrimination, children’s online safety, and the intersection of privacy law with civil rights and the First Amendment.