Big Tech battles impending CA web design law

In 1986, when California voters approved Proposition 65, they effectively enacted a nationwide law, whether they intended to or not. The ballot measure, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires all businesses, including product manufacturers, to warn Californians about any significant exposures to chemicals that could cause cancer, birth defects or reproductive harm.

Because California’s economy is the largest in the United States, nationwide distributors can’t afford to be cut out of the Golden State’s market. Thus, Prop. 65 warnings appear on all kinds of products sold throughout the country, even though the law only technically applies to California.

Thirty-eight years later, California is poised to establish de facto nationwide policy again when Assembly Bill 2273, the California Age-Appropriate Design Code Act, goes into effect on July 1, 2024. Signed by the governor in September, AB 2273 requires any business serving up web pages likely to be accessed by California children to consider the children’s best interests when designing their sites.

The bill’s far-reaching standards are expected to impact essentially all websites published in the United States, and could even spell the end of anonymous browsing on the internet. As you might imagine, online businesses like Google, Meta, Yahoo! and TikTok aren’t pleased. In December, their trade group, NetChoice, sued federal court to block the law’s implementation.

“We think that this law, if it were to take effect, would negatively impact businesses across the country,” said NetChoice Counsel Chris Marchese.

NetChoice argues that AB 2273 is overly broad and places tremendous burdens on businesses, as well as violates the First Amendment and privacy for families. The bill requires businesses operating online to verify every visitor’s age before allowing them to access a website, which effectively could end anonymous browsing and require all internet users in the United States to suddenly become comfortable with providing their ages to virtually every website they access.

“We think that this law, if it were to take effect, would negatively impact businesses across the country.”

The bill also requires any business, before offering a new service on its website, to complete what’s called a “Data Protection Impact Assessment,” or DPIA, to determine what risks to children could arise from the new feature as well as how the company plans to mitigate them. Businesses are required to make the assessments available to the California Attorney General within five days of a written request.

NetChoice argues that the DPIA requirements “will pressure businesses to identify distant or unlikely harms – and to self-censor accordingly.” To illustrate its point, NetChoice quotes in its complaint an August 2022 column in Techdirt by Mike Masnick, who complained that any change made to his website would require likely require an assessment under the DPIA provision of AB 2273.

“Our comment system? DPIA,” writes Masnick, editor of the Techdirt blog. “Our comment voting? DPIA. Our comment promotion? DPIA. The ability to listen to our podcast? DPIA. The ability to share our posts? DPIA. The ability to join our insider chat? DPIA. The ability to buy a t-shirt? DPIA. The ability to post our stories to Reddit, Twitter, Facebook, or LinkedIn? DPIA (for each of those, or can we combine them? I dunno). Our feature that recommends similar articles? DPIA. Search? DPIA. Subscribe to RSS? DPIA.”

NetChoice also argues that AB 2273’s ban on the use of so-called “dark patterns” will severely and unnecessarily hamstring website design. By incorporation, the bill defines “dark patterns” as “a user interface designed or manipulated with the substantial effect of subverting or impairing user autonomy, decisionmaking, or choice, as further defined by regulation.” NetChoice argues that while the term is “calculated to sound nefarious,” “dark patterns” really just refer to “benign and widely used features such as ‘autoplay’ and ‘newsfeed’ functions that use programmed algorithms and machine learning to recommend personalized content.”

“I think lawmakers tried to come up with a framework that makes sense to regulators,” Marchese said. But he also thinks they failed to consider how online businesses actually operate, saying “I don’t know if the lawmakers fully thought through” the legislation.

AB 2273’s authors, Democrats Buffy Wicks and Cottie Petrie-Norris and former Assembly Republican Jordan Cunningham, say it’s no surprise the tech industry doesn’t want to be regulated.

“The tech companies don’t want us to reduce their power,” said Wicks, noting that the industry opposed the bill all the way through the legislative process. “It’s not surprising that the lawsuit came up.”

“The tech companies don’t want us to reduce their power…It’s not surprising that the lawsuit came up.”

Marchese told Capitol Weekly that NetChoice is likely to seek an injunction to the delay the implementation of AB 2273 while the lawsuit is pending, but a filing hasn’t been made yet. With stakes this far reaching, you can rest assured this fight is just in the beginning stages. Wicks, for her part, is prepared for a long battle.

“We feel pretty good about where we’re going to land,” she said.

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