It’s “burn-down-the-Internet” week on the blog, during which I am recapping three bad California bills that the California legislature is poised to enact. Monday, I covered AB 2273, the Age-Appropriate Design Code. Yesterday, I covered AB587, an editorial transparency law. Today, I’m covering AB 2408, a performative “protect kids online” bill that kick kids off social media entirely and ruin the Internet for adults too. For background on the bill and its voluminous problems, see this lengthy blog post. A quick summary of the bill’s lowlights:
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This bill is a radical remixing of centuries-old tort principles. Manufacturers/retailers are almost never liable for addicting customers to their products/services, plus the bill masks a complex issue about who caused the addiction. The novelty and unprecedented nature of this tort solution counsels caution.
Like AB 2273, the bill contemplates that platforms will distinguish minors from adults online. As I explained in my opposition to AB 2273, this makes platforms engage in age authentication, and possibly identity authentication. Age and identity authentication have numerous downsides and tradeoffs, including creating privacy and security risks for minors.
Like AB 2273, the bill will motivate platforms to categorically deny services to minors. This will be a major shock to millions of Californians who value and enjoy social media. It will also disadvantage California minors who currently benefit from the educational and community-building aspects of social media.
The affirmative defense (which partially negates liability if a government-designated censor approves the service offering) is miscalibrated. It doesn’t cover all applicable remedies, so it doesn’t provide a safe harbor social media platforms can actually use. There’s no certification requirement for the auditor, which means any random person apparently could serve in the role. This creates a bizarre and counterproductive race to the bottom. And most importantly, giving a government-motivated “auditor” the power to veto the functionality of online publishers is deeply and unconstitutionally censorial.
There are many pending lawsuits addressing children’s purported addiction to social media. Those cases will be addressing many of the same legal challenges that this bill faces, including Section 230 preemption and violation of the First Amendment. California taxpayers would benefit from seeing how that litigation is resolved before undertaking the inevitable costs to defend this law against those same challenges.