Netchoice v. Bonta: California Age-Appropriate Design Code Act Update

By: Kewa Jiang

On September 18, 2023, U.S. District Judge Beth Labson Freeman granted a preliminary injunction against the enforcement of the California Age-Appropriate Design Code Act (CAADCA or “the Act”). CAADCA was signed into law in September 2022 and would have gone into effect on July 1, 2024. The lawsuit enjoining the enforcement of CAADCA was brought by Netchoice, a trade association of online businesses and eCommerce businesses, in December 2022. Netchoice challenged the constitutionality of CAADCA in its complaint against California Attorney General Rob Bonta. For an overview of the initial complaint see here.

In the preliminary injunction order, the Court acknowledged the aim of CAADCA is to protect children when they are online and the unanimous support by California’s legislature and Governor of the Act. However, the Court concluded that nonetheless Netchoice “has shown that it is likely to succeed on the merits of its argument that the provisions of the CAADCA intended to achieve that purpose [protect children when online] do not pass constitutional muster.” The Court examined at length Netchoice’s First Amendment claim and agreed that “[l]oss of free speech rights resulting from a threat of enforcement rather than actual enforcement constitutes irreparable harm.”

In response to the announcement of the preliminary injunction, supporters of CAADCA, such as Electronic Privacy Information Center, disagreed with the Court’s decision and provided an analysis of the order. On the other hand, organizations that supported the preliminary injunction, such as at the Computer & Communications Industry Association, welcomed the preliminary injunction.

On October 18, 2023, the California Attorney General’s Office filed a notice of appeal of the preliminary injunction and on December 13, 2023, the AG’s Office filed its appellant brief. AG Bonta stated in a press release accompanying the filing of the notice of appeal that “Big businesses have no right to our children’s data: childhood experiences are not for sale.”

Looking Ahead

While the litigation presses forward, children’s data privacy remains a pressing issue as state and federal legislators continue to introduce bills. The decision in Netchoice v. Bonta will deeply impact the privacy landscape to come.