NetChoice sues to block Maryland’s Kids Code, saying it violates the First Amendment

NetChoice has filed its 10th lawsuit in an ongoing fight against a broad slate of state internet regulations — this time against a Maryland law billed as protecting kids from inappropriate material online. It’s the latest effort to oppose what NetChoice calls an unconstitutional speech code in disguise. NetChoice has become one of the fiercest — and most successful — opponents of age verification, moderation, and design code laws, all of which would put new obligations on tech platforms and change how users experience the internet. Most notably, the group successfully argued a landmark Supreme Court case over attempted bans on much internet moderation in Florida and Texas, resulting in a ruling that content moderation is protected by the First Amendment, a precedent that’s become useful in its other cases. NetChoice’s latest suit opposes the Maryland Age-Appropriate Design Code Act, a rule that echoes a California law of a similar name. In the California litigation, NetChoice notched a partial win in the Ninth Circuit Court of Appeals, which upheld the district court’s decision to block a part of the law requiring platforms to file reports about their services’ impact on kids. (It sent another part of the law back to the lower court for further review.) A similar provision in Maryland’s law is at the center of NetChoice’s complaint. The group says that Maryland’s reporting requirement lets regulators subjectively determine the “best interests of children,” inviting “discriminatory enforcement.” The reporting requirement on tech companies essentially mandates them “to disparage their services and opine on far-ranging and ill-defined harms that could purportedly arise from their services’ ‘design’ and use of information,” NetChoice alleges. NetChoice points out that both California and Maryland have passed separate online privacy laws, which NetChoice Litigation Center director Chris Marchese says shows that “lawmakers know how to write laws to protect online privacy when what they want to do is protect online privacy.” Supporters of the Maryland law say legislators learned from California’s challenges and “optimized” their law to avoid questions about speech, according to Tech Policy Press. In a blog analyzing Maryland’s approach, Future of Privacy Forum points out that the state made some significant changes from California’s version — such as avoiding an “express obligation” to determine users’ ages and defining the “best interests of children.” The NetChoice challenge will test how well those changes can hold up to First Amendment scrutiny. NetChoice has consistently maintained that even well-intentioned attempts to protect kids online are likely to backfire. Though the Maryland law does not explicitly require the use of specific age verification tools, Marchese says it essentially leaves tech platforms with a no-win decision: collect more data on users to determine their ages and create varied user experiences or cater to the lowest common denominator and self-censor lawful content that might be considered inappropriate for its youngest users. And similar to its arguments in other cases, Marchese worries that collecting more data to identify users as minors could create a “honey pot” of kids’ information, creating a different problem in attempting to solve another. The issue of age verification has already come before the Supreme Court this term in Free Speech Coalition, Inc. v. Paxton, a case dealing with a Texas law that seeks to impose age verification requirements on sites with a high proportion of sexually explicit content. At oral arguments, some of the justices seemed open to the state’s assertion that age verification tools have advanced enough to provide a reliable picture of a users’ age without compromising their privacy. They appeared skeptical that alternatives like parent-controlled filtering, which were promoted by previous Supreme Court rulings, could be considered reasonably effective. Marchese sought to separate the issues in NetChoice’s latest lawsuit from the ones in FSC v. Paxton. While the outcome of that case could significantly impact content that might be considered legally harmful to minors, he emphasized that this case involves speech that is lawful to access at any age. “NetChoice, and our industry, fully agree that minors need to be protected online,” says Marchese. “But ultimately, we don’t achieve that outcome by passing unconstitutional bills into unconstitutional laws. An unconstitutional law protects no one, especially minors.”