The Republican author of a California law providing online protections for teenagers said there are strong prospects for an appeal to undo a decision by a federal judge to pause implementation of the measure.
Former State Rep. Jordan Cunningham was one of the legislators who wrote the California Age Appropriate Design Code, a law that would restrict apps' ability to collect data on anyone 18 or younger and require them to implement their highest privacy standards for children and teenagers. It also would require platforms to add technology to verify users' age before allowing access.
WHO IS LACHLAN MURDOCH? THE NEW HEAD OF FOX NEWS AND SON OF RUPERT MURDOCH
Gov. Gavin Newsom (D-CA) signed the law in September 2022 after it passed the legislature with unanimous support, only for the law to be blocked by the District Court for the Northern District of California at the request of the conservative tech industry group NetChoice.
When asked about the injunction, Cunningham told the Washington Examiner that he felt "profound disappointment" but believes the decision to be "quite vulnerable to appeal." He said that the decision "overreached and applied the strictest level of scrutiny possible.
"We spent hundreds of hours of work on this bill shaping it, getting it through the legislature," he said. "I mean, it passed the state assembly for 74 to zero."
Cunningham said that the injunction blocks the AADC under the legal standard of First Amendment-related "strict scrutiny." The standard requires the government to prove that the law is the "least restrictive means" to advance a "compelling" government interest related to speech. But the AADC doesn't affect speech, Cunningham argued.
The former legislator cited, as evidence, the 2021 Ninth Circuit decision in Lemmon v. Snap. Snapchat had added a feature allowing users to record their speed via the app and send it to their friends. Three young men who were using the feature died in a fiery car crash in 2017. Parent company Snap alleged that it was protected from liability by Section 230, a part of communications law that protects online platforms from being held culpable for content posted by third parties. The Ninth Circuit ruled that Snap could be held guilty for the deaths because it was not just the host of content but the creator of the speed filter. Cunningham said the same rule is applicable since the law deals with the privacy settings and not the content of the platform.
Cunningham held office from 2016 to 2022 when he decided not to run for reelection. He is now a partner at CM Public Affairs, a firm he founded alongside his spouse.
Cunningham became interested in privacy protections and social media in 2018 but found himself inspired to act after Facebook whistleblower Frances Haugen appeared before Congress and testified about how much Meta knew about Instagram's influence over teenagers.
Cunningham, alongside his Democratic counterpart Buffy Wicks, was the mind behind two of California's most robust responses to Big Tech last year: The CAADC and A.B. 2408, a bill that would allow the state attorney general, district attorneys, and parents to sue social media companies for encouraging teenagers to adopt addictive behavior. He also collaborated with Baroness Beeban Kidron, the Parliament member who helped pen the United Kingdom's Design Code, on rules to make them fit within American law. A.B. 2408 was killed in committee in August 2022.
The U.K.'s laws are working well, Cunningham said, with Big Tech making the necessary changes to stay operational. The main difference between the U.K. and the U.S. is the First Amendment.
Cunningham said his time in politics is done, but he would offer his expertise to anyone who may wish to listen to him. Several states are pursuing similar legislation. The former state lawmaker said he has spoken with a few other state legislators about their proposals. He also noted President Joe Biden's call to "stop Big Tech from collecting personal data on kids and teenagers online" in the State of the Union address, as well as the growing number of privacy-focused bills in Congress, such as the Kids Online Safety Act.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
"If we don't get this right, we'll see consequences soon," Cunningham said. "We're already seeing generational damage done to the mental health of kids." Cunningham argued that Big Tech is not the only cause of declining mental health among teenagers, but it is a significant one, alongside COVID-19 lockdowns and the school shutdowns in 2020.
NetChoice did not respond to requests for comment from the Washington Examiner.