SACRAMENTO, Calif. – If you start keeping tabs on state legislatures around the country, one thing you’ll quickly notice is these legislatures have a habit of concocting new statutes that, ultimately, never get enforced.
Some bills never make as far as getting out of committee for further debate, let alone an up/down vote by the full chamber at issue. Other bills are approved by the legislature, then vetoed by the state’s governor. Still others make it all the way through the legislative process and receive the governor’s endorsement, only to be shot down by the courts.
Should California Governor Gavin Newsom sign the California Age-Appropriate Design Code Act (“CAADCA”), something he has not done as of the time of this post’s composition, I’m confident it will follow the third of the paths mentioned above and find itself eviscerated by the stroke of a judicial pen.
Why do I believe this? Mostly because every attorney with whom I’ve discussed the bill has told me it has not even the proverbial snowball’s chance in hell of withstanding court scrutiny.
“The bill is dead on arrival in the courts as a violation of the First Amendment and the dormant Commerce Clause,” attorney Larry Walters told me over the Labor Day weekend. “Several states tried these mini-COPA laws decades ago, and they all failed to pass constitutional muster.”
More than one litigator declined to provide comment to me on the record, simply because they have clients who have already expressed an interest in challenging CAADCA in court, should Newsom sign the bill, and they have a policy of avoiding making public comment not only on active cases, but potential ones, as well. I asked one of these attorneys who declined to be quoted on the record for his level of concern over the bill, given its text and his assessment of its chances to survive court scrutiny.
“On a scale of 1 to 10, my concern is a flat zero,” he said. “The bill has so many fatal flaws, it’s hard to know where to start. This one won’t be a close call for the court.”
While analyzing the legal definitions of the terms at issue in the bill is an endeavor that’s well beyond my expertise, I think it’s fair to ask some questions of this bill based on simple dictionary definitions of some of the key terms involved.
For example, CAADCA ostensibly pertains to “businesses that develop and provide online services, products, or features that children are likely to access” – which makes me wonder: Are there websites in existence that children are unlikely to access? If so, what makes these websites unlikely to be accessed by children, given that a child using the internet is certainly capable of accessing any website that is also accessible to adults? Has California just concocted a bill that potentially applies to every website in existence? If so, is this bill the something the courts will consider to be “narrowly tailored” to achieving its legislative purpose?
(To be fair, I suppose most children are unlikely access more anything beyond the front page of the website for the California legislature, because it is a seriously dull affair over there. By the way, speaking of design, who is responsible for that mid-90’s monstrosity of a GUI?)
More questions: Does the California legislature know something about effectively conducting age and identity verification in the online environment that the rest of us don’t? Are we website operators now magically able to definitively identify users at the other end of an online transaction without first collecting any information about that person?
If we can all agree that collecting at least some information from a person is a necessary component of reliably determining that person’s age, is the California legislature now saying it wants the operators of adult entertainment websites to collect information on minors as part of preventing minors from accessing adult websites? If that requirement is indeed part of what the legislature knowingly seeks to impose through this bill, have they thought this through at all, let alone thought it through completely?
Setting aside the legal implications here, just imagine the impact that requiring age verification by every site (or even a substantial percentage of them) on the internet would have on the act of casual internet browsing. As law professor Eric Goldman noted in an op-ed about CAADCA he wrote for the Capitol Weekly, the “actual process of age authentication usually involves either (1) an interrogation of personal details or (2) evaluating the user’s face so that software can estimate the age.”
“Neither process is error-free, and either imposes costs that some businesses can’t afford,” Goldman observed. “More importantly, the authentication process is highly invasive. Most people won’t want to share their sensitive details with every new site they visit, especially if they don’t know yet if they can trust the site.”
The goal of protecting children online is a laudable one – and one that no politician with a strategic thought in their head wants to be perceived as being against, obviously, so it’s easy to see the appeal of voting for CAADCA from the perspective of an elected official. But not every idea offered in the ongoing global brainstorming about how to protect kids in the online environment is a good idea. Some aren’t even remotely workable ideas.
In my view, CAADCA falls into both categories – unworkable and bad. And I’m confident the court will, given the opportunity, find that the legislation falls into a third category of idea, as well: “unconstitutional.”