WASHINGTON, D.C. – Last week, the Ninth Circuit heard appeals on the legality of California’s Age-Appropriate Design Code in NetChoice v. Bonta, as well as the mandatory transparency rule at issue in X v. Bonta.
In NetChoice, the Court appeared to agree with the district court that the California Age Appropriate Design Code’s requirement that companies with online platforms conduct a data protection impact assessment (DPIA) – which aims to clarify how people’s data is being used – violates the platforms’ First Amendment rights. Following the Supreme Court’s decision in NetChoice v Moody, Paxton v NetChoice, the Ninth Circuit seemed inclined, however, to reject NetChoice’s facial challenge to certain other provisions in the law related to higher privacy settings for children, dark patterns, and transparency and reporting requirements. The Court was unclear as to whether the portions of the statute that it determines could pass constitutional scrutiny are severable from those it views as unconstitutional.
In X Corp. v Bonta, the Court appeared inclined to vacate a district court decision upholding a California law requiring X Corp. and other social media companies to submit basic transparency reports regarding their content moderation policies and practices.
TJLP Executive Director Meetali Jain released the following statement in response to the hearings:
“The most important role of government is to keep its citizens safe. We’re disappointed that in both arguments, the Court seemed utterly disinterested in how online platforms impact citizens, particularly children. Despite the fact governments routinely regulate consumer products in the material world, the panel suggested virtually any government oversight or regulation of digital platforms violates companies’ First Amendment rights, leaving such companies – unlike nearly any others – basically unregulable.”