Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 1 of 34
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`NETCHOICE,
`
`Plaintiff,
`
`v.
`
`ROB BONTA,
`
`Defendant.
`
`Case No. 5:24-cv-07885-EJD
`
`ORDER GRANTING IN PART AND
`DENYING IN PART MOTION FOR
`PRELIMINARY INJUNCTION
`
`
`Re: ECF No. 2
`
`
`
`
`
`When Facebook first launched in 2004, the phrase “social media” had not yet made its way
`
`into most people’s vocabularies.1 Much has changed since then. Today, one would be hard-
`
`pressed to find someone who has not heard of social media. Companies like Facebook (now
`
`known as Meta) have grown into multibillion-dollar juggernauts, and social media has rapidly
`
`grown to touch on nearly every aspect of modern life. With social media’s growth, it is easier than
`
`ever to forge connections with others, whether that is with someone across the street or across the
`
`ocean. News can be shared almost instantly, not only by traditional media outlets but also by
`
`individuals seeking to contribute to public conversations. And officials, government agencies, and
`
`advocacy organizations alike now have a direct line to those they serve and those who support
`
`them. But such rapid growth comes with its share of challenges. It is easy to connect on social
`
`media, but in some circumstances, those connections may degrade the quality of our interactions
`
`with each other in ways that amplify rather than reduce loneliness.2 Just as news travels quickly,
`
`
`1 Social Media, Oxford English Dictionary, https://www.oed.com/dictionary/social-media_n
`(“social media” first published in 2012); Press Release, Merriam-Webster Inc., Something to
`Tweet About: Merriam-Webster's Collegiate Dictionary Updated for 2011 (Aug. 25, 2011),
`https://www.prnewswire.com/news-releases/something-to-tweet-about-128379408.html (noting
`the addition of “social media” into the Merriam-Webster dictionary).
`2 U.S. Surgeon General, Our Epidemic of Loneliness and Isolation 20 (2023),
`https://www.hhs.gov/sites/default/files/surgeon-general-social-connection-advisory.pdf.
`
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`1
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 2 of 34
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`so does misinformation. And much like those working to better the world may leverage social
`
`media platforms to reach a wide audience, so can those seeking to do harm.
`
`A robust debate has emerged about how to maximize social media’s benefits while
`
`minimizing its potential harms. Social media companies have taken some voluntary steps to
`
`address possible harms while critics question whether those steps have gone too far or not far
`
`enough. In recent days, policymakers have focused on one particular concern: the potential for
`
`social media to harm children’s health. Over the past two years, at least five states, including
`
`California, have passed laws seeking to protect children from social media’s harmful effects. See
`
`NetChoice, LLC v. Bonta, 113 F.4th 1101 (9th Cir. 2024) (California); NetChoice, LLC v. Reyes,
`
`--- F. Supp. 3d ----, 2024 WL 4135626 (D. Utah Sept. 10, 2024); NetChoice, LLC v. Fitch, ---
`
`F. Supp. 3d ----, 2024 WL 3276409 (S.D. Miss. July 1, 2024); NetChoice, LLC v. Yost, 716 F.
`
`Supp. 3d 539 (S.D. Ohio 2024); NetChoice, LLC v. Griffin, 2023 WL 5660155 (W.D. Ark. Aug.
`
`31, 2023). At the federal level as well, Congress has discussed legislation to protect kids on social
`
`media. See Kids Online Safety Act, S. 1409, 118th Cong. (2023).
`
`This case arises from California’s most recent efforts to address social media safety for
`
`children. On September 20, 2024, California’s governor signed SB 976, also known as the
`
`Protecting Our Kids from Social Media Addiction Act, into law. A month and a half later, on
`
`November 12, 2024, Plaintiff NetChoice—an internet trade group with several social media
`
`companies among its members—sued Defendant Rob Bonta, in his official capacity as California
`
`Attorney General, to block SB 976. In doing so, NetChoice raised facial First Amendment and
`
`vagueness challenges to SB 976, in addition to as-applied challenges on behalf of five of its
`
`members. At the same time, NetChoice moved to enjoin enforcement of SB 976 ahead of its
`
`effective date on January 1, 2025. Since SB 976 was scheduled to take effect so soon after
`
`NetChoice filed its motion, the parties agreed to an expedited briefing schedule. The parties
`
`finished briefing NetChoice’s motion on December 9, 2024, and the Court held a hearing on the
`
`matter eight days later, on December 17, 2024. Because NetChoice has shown that parts of SB
`
`976 are likely to infringe upon the First Amendment, the Court GRANTS IN PART and
`
`DENIES IN PART NetChoice’s preliminary injunction motion.
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`2
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 3 of 34
`
`
`
`I.
`
`BACKGROUND
`
`When the California Legislature enacted SB 976, it did so for the stated purpose of
`
`“ensur[ing] that social media platforms obtain parental consent before exposing children and
`
`adolescents to harmful and addictive social media features.” SB 976, § 1(g), ECF No. 2-1.
`
`According to the Legislature, this was necessary because of mounting evidence that linked minors’
`
`use of social media to negative health outcomes such as eating disorders, disrupted sleep patterns,
`
`depression, and self-harm, id. §§ 1(c)–(e), and because “some social media platforms [had]
`
`evolved to include addictive features” that could keep minors on those platforms for increasingly
`
`long hours. Id. § 1(b).
`
`A.
`
`Coverage Definition
`
`SB 976 regulates companies that offer certain types of personalized media feeds “as a
`
`significant part of the service provided by [those companies’] internet website, online service,
`
`online application, or mobile application.” Cal. Health & Safety Code § 27000.5(b)(1).
`
`Specifically, personalized feeds that recommend user-generated or user-shared content based on
`
`“information provided by the user, or otherwise associated with the user or the user’s device,”
`
`trigger SB 976’s provisions. Id. § 27000.5(a).
`
`However, there are several exceptions to this coverage definition. The first group of
`
`exceptions is based on a personalized feed’s features. A feed that would otherwise meet the
`
`coverage definition is excluded if that feed also acts in one or more of seven ways, such as by
`
`recommending content based on information “not persistently associated with the user or user’s
`
`device,” based on privacy or accessibility settings, or based on a user’s “express[] and
`
`unambiguous[]” request for a specific category of content. Id. §§ 27000.5(a)(1)–(7). The seven
`
`feed-based exceptions are varied, but they generally serve to exempt feeds from SB 976’s
`
`provisions if those feeds recommend content based on a user’s explicit requests and not based on
`
`data collected about that user’s previous internet activity. See id. The second group of exceptions
`
`is based on the nature of a potentially covered company’s business. Even if a company offers a
`
`feed that falls under SB 976’s coverage definition, the bill’s provisions do not apply if that
`
`company provides services “for which interactions between users are limited to commercial
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`3
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 4 of 34
`
`
`
`transactions or to consumer reviews” or if that company “operates a feed for the primary purpose
`
`of cloud storage.” Id. § 27000.5(b)(2).
`
`B.
`
`Regulatory Requirements
`
`At a high level, SB 976 imposes what some call an “age gate.” That is, SB 976 requires
`
`covered companies to gate off, or restrict, minors from accessing certain features unless those
`
`minors receive “verifiable parental consent.” Id. §§ 27001(a)(2), 27002(a)–(b). From January 1,
`
`2025 to December 31, 2026, covered entities need only gate off features from users actually
`
`known to be minors. Id. §§ 27001(a)(1)(A), 27002(a)(2). But starting January 1, 2027, covered
`
`companies must undertake age assurance efforts to determine whether users are adults or minors;
`
`then, they must gate off restricted features from any user whom the company cannot reasonably
`
`determine to be an adult. Id. §§ 27001(a)(1)(B), 27002(a)(2). To implement this latter age-
`
`assurance requirement, SB 976 directs the California Attorney General to promulgate regulations
`
`on the issue by January 1, 2027. Id. § 27006(b).
`
`SB 976 restricts two features behind an age gate. Minors can only access those features
`
`with parental consent. Id. §§ 27001(a)(2), 27002(a). First, SB 976 restricts access to personalized
`
`feeds that meet its coverage definition and do not satisfy any exception. Id. § 27001(a). Second,
`
`SB 976 prohibits push notifications (i.e., pop-ups from smart phone applications) from being sent
`
`at certain times of the day. Id. § 27002(a). Namely, SB 976 bars covered companies from
`
`sending notifications at night between 12 a.m. and 6 a.m. (year-round) and also during school
`
`hours between 8 a.m. and 3 p.m. (Mondays through Fridays from September through May). Id.
`
`In addition to age gating the above two features, SB 976 requires covered companies to
`
`develop settings that parents can use to control their children’s social media use. Some of those
`
`required settings overlap with the age gated features. Id. §§ 27002(b)(1)–(2), (4). Two, though,
`
`are distinct. The first gives parents the power to “[l]imit their child’s ability to view the number of
`
`likes or other forms of feedback to pieces of media within an addictive feed,” and SB 976
`
`mandates that this setting be turned on by default. Id. § 27002(b)(3). The second allows parents
`
`to “[s]et their child’s account to private mode, in a manner in which only users to whom the child
`
`is connected on the [covered company’s] service or application may view or respond to content
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`4
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 5 of 34
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`posted by the child”; again, this setting must be turned on by default. Id. § 27002(b)(5).
`
`Finally, SB 976 compels covered companies to make disclosures related to the
`
`requirements above. Under this last provision, covered companies must publicly disclose the
`
`following information every year: the number of minors who use their service; the number of
`
`minor users who received parental consent to access covered feeds; and the number of minor users
`
`for whom SB 976’s default settings are or are not enabled. Id. § 27005.
`
`II.
`
`LEGAL STANDARD
`
`“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter
`
`v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To secure a preliminary injunction, a
`
`plaintiff must establish that it (1) “is likely to succeed on the merits,” (2) “is likely to suffer
`
`irreparable harm in the absence of preliminary relief,” (3) “the balance of equities tips in [its]
`
`favor,” and (4) “that an injunction is in the public interest.” Id. at 20.
`
`Because NetChoice makes a First Amendment claim, the likelihood of success factor is
`
`subject to burden shifting. The plaintiff still bears the initial burden and must demonstrate “a
`
`colorable claim that its First Amendment rights have been infringed[] or are threatened with
`
`infringement.” Smith v. Helzer, 95 F.4th 1207, 1214 (9th Cir. 2024) (quoting Cal. Chamber of
`
`Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 478 (9th Cir. 2022)). Once the
`
`plaintiff makes that initial showing, the burden “shifts to the government to justify the restriction
`
`on speech.” Id. (quoting Cal. Chamber of Com., 29 F.4th at 478). If the government fails to
`
`satisfy that burden, the plaintiff prevails on likelihood of success. Put differently, the plaintiff has
`
`the initial burden of showing that a challenged law implicates the First Amendment while the
`
`government has the subsequent burden of showing that the challenged law satisfies the appropriate
`
`level of scrutiny. Doe v. Harris, 772 F.3d 563, 570 (9th Cir. 2014).
`
`Further, likelihood of success “is especially important when a plaintiff alleges a
`
`constitutional violation and injury” like NetChoice does here. Baird v. Bonta, 81 F.4th 1036, 1040
`
`(9th Cir. 2023). A finding that the plaintiff is likely to succeed on its First Amendment claim puts
`
`a strong (and perhaps insurmountable) thumb on the scale in favor of a preliminary injunction.
`
`Likelihood of success on a constitutional claim necessarily implies that the plaintiff would suffer
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`5
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 6 of 34
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`irreparable harm absent an injunction. Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th
`
`Cir. 2009) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (“[T]he loss of First Amendment
`
`freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); Doe,
`
`772 F.3d at 583 (quoting Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012)) (same); see
`
`also Hernandez v. Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (“Thus, it follows inexorably from
`
`our conclusion that the government’s current policies are likely unconstitutional . . . that Plaintiffs
`
`have also carried their burden as to irreparable harm.”). And analysis of the remaining equity and
`
`public interest factors, which merge when the government is a defendant, Drakes Bay Oyster Co.
`
`v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014), begins tilted in favor of a preliminary injunction
`
`since it is “always in the public interest to prevent the violation of a party’s constitutional rights.”
`
`Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 731 (9th Cir. 2022) (quoting Melendres v.
`
`Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)).
`
`Meanwhile, courts can deny a preliminary injunction without “‘consider[ing] the other
`
`[preliminary injunction] factors’ if a movant fails to show a likelihood of success on the merits.”
`
`Baird, 81 F.4th at 1040 (quoting Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir.
`
`2017)); see also Smith, 95 F.4th at 1215 (affirming denial of a preliminary injunction after finding
`
`no likelihood of success and without discussing any other preliminary injunction factor).
`
`III. DISCUSSION
`
`A.
`
`Ripeness of Age Assurance Challenges
`
`The Court begins by addressing the provisions of SB 976 that require covered companies
`
`to conduct age assurance (Cal. Health & Safety Code §§ 27001(a)(1)(B), 27002(a)(2)) because
`
`Defendant’s argument regarding those provisions—that challenges to age assurance are not yet
`
`ripe—cuts across this entire case. The purpose of ripeness doctrine is “to prevent the courts,
`
`through avoidance of premature adjudication, from entangling themselves in abstract
`
`disagreements.” Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 807 (2003) (quoting
`
`Abbott Lab’ys v. Gardner, 387 U.S. 136, 148–49 (1967)). For First Amendment cases, courts give
`
`more leeway to plaintiffs faced with ripeness questions. Twitter, Inc. v. Paxton, 56 F.4th 1170,
`
`1173–74 (9th Cir. 2022) (citation omitted). But that does not mean ripeness becomes toothless
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`6
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 7 of 34
`
`
`
`whenever the First Amendment is involved. See id. at 1172 (affirming dismissal of First
`
`Amendment challenge as unripe). In this instance, the Court finds that NetChoice’s challenge to
`
`age assurance is not yet ripe because covered companies do not need to implement age assurance
`
`procedures until January 1, 2027, and the regulations governing age assurance have not yet been
`
`issued.
`
`Ripeness has both constitutional and prudential dimensions. Nat’l Park Hops. Ass’n, 538
`
`U.S. at 807 (citation omitted). NetChoice, as the party asserting a claim, has the burden of
`
`satisfying both dimensions. Colwell v. Dep’t of Health & Hum. Servs., 558 F.3d 1112, 1121 (9th
`
`Cir. 2009).
`
`1.
`
`Constitutional Ripeness
`
`Although the parties do not directly address constitutional ripeness, the Court starts there
`
`because it has a duty to consider all aspects of ripeness. City & Cnty. of S.F. v. Garland, 42 F.4th
`
`1078, 1084 (9th Cir. 2022). The constitutional component of ripeness is equivalent to the injury-
`
`in-fact prong of Article III standing. Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 944 (9th
`
`Cir. 2021) (citation omitted). For a pre-enforcement challenge like the one NetChoice brings here,
`
`this requires examining “(1) whether the plaintiffs have articulated a concrete plan to violate the
`
`law in question, (2) whether the prosecuting authorities have communicated a specific warning or
`
`threat to initiate proceedings, and (3) the history of past prosecution or enforcement under the
`
`challenged statute.” Alaska Right to Life Pol. Action Comm. v. Feldman, 504 F.3d 840, 849 (9th
`
`Cir. 2007).
`
`Looking to the first constitutional ripeness factor, the Court finds little doubt that
`
`NetChoice’s members3 have a concrete plan to forego implementing age assurance—most of
`
`NetChoice’s members do not have the capabilities to conduct age assurance, and they would like
`
`to avoid both the costs of establishing such capabilities as well as the potential drop in user growth
`
`
`3 NetChoice asserts associational standing, so its standing to sue derives from its members’
`independent standing to sue. See Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343
`(1977). Therefore, the Court analyzes injuries to NetChoice’s members rather than to NetChoice
`itself.
`
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`7
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 8 of 34
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`that age assurance might trigger. Cleland Decl. ¶¶ 29, 32, ECF No. 2-2. Second, even though the
`
`record does not reflect that Defendant has made any specific enforcement threat, for First
`
`Amendment cases, the necessary “threat of enforcement may be inherent in the challenged
`
`statute.” Wolfson v. Brammer, 616 F.3d 1045, 1059 (9th Cir. 2010). This way, “a plaintiff need
`
`not risk prosecution in order to challenge” restrictions on protected speech. Id. at 1060. Finally,
`
`the third factor plays little role here because SB 976 is new, so there is no history of enforcement
`
`to examine. Id. But, California’s participation in other lawsuits seeking to hold NetChoice
`
`members accountable for alleged harms to minors suggests that Defendant would be willing to
`
`enforce SB 976. E.g., California v. Meta Platforms, Inc., No. 4:23-cv-05448 (N.D. Cal.).
`
`Therefore, the Court finds that NetChoice has established constitutional ripeness.
`
`2.
`
`Prudential Ripeness
`
`However, NetChoice’s challenge to age assurance falters at prudential ripeness. The
`
`prudential component of ripeness requires examining (1) “fitness of the issues for judicial
`
`decision” and (2) “the hardship to the parties of withholding court consideration.” Ass’n of
`
`Irritated Residents, 10 F.4th at 944 (quoting Abbot Lab’ys, 387 U.S. at 149). The fitness
`
`component reflects the “interest the judiciary has in delaying consideration of a case”—that is to
`
`say, the interest in waiting for further development that renders disputes more concrete and less
`
`hypothetical. Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 838 (9th Cir.
`
`2012). The hardship component “serves as a counterbalance” to the judiciary’s interests in
`
`awaiting further development. Id. If a plaintiff could suffer great hardship from delaying judicial
`
`review, courts should address that plaintiff’s claim even if the record and the circumstances do not
`
`present a perfectly concrete issue.
`
`a.
`
`Fitness for Review
`
`The Court finds that the free speech issues surrounding age assurance are not yet fit for
`
`judicial review. Fitness turns on two factors: whether the challenged action is final and whether
`
`the issues raised “are primarily legal [and] do not require further factual development.” Wolfson,
`
`616 F.3d at 1060 (quoting US W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1118 (9th Cir.
`
`1999)). Here, SB 976 is final, but age assurance raises extensive factual issues that still require
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`8
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 9 of 34
`
`
`
`more development.
`
`Efforts to impose age assurance requirements on the internet are not new, and those
`
`previous efforts have been met with First Amendment scrutiny as well. The Supreme Court first
`
`addressed age assurance almost thirty years ago in Reno v. ACLU, 521 U.S. 844 (1997). In that
`
`case, the Supreme Court reviewed whether it was constitutional under the First Amendment for
`
`Congress to criminalize the transmission of offensive or indecent internet communications to
`
`minors through the Communications Decency Act (CDA). As relevant here, the Supreme Court
`
`considered whether the presence of an age assurance affirmative defense narrowly tailored the
`
`CDA to Congress’s purpose. Id. at 881–82. The answer was no. Id. In reaching that conclusion,
`
`the Supreme Court relied on the district court’s factual findings that age assurance technology at
`
`the time was neither effective nor economically feasible for most websites. Id. As such, websites
`
`would not be able to take advantage of the age assurance affirmative defense and would
`
`necessarily need to limit speech to adults in order to avoid criminal liability under the CDA. Id. at
`
`882. In other words, the government “failed to prove that the proffered defense would
`
`significantly reduce the heavy burden on adult speech.” Id.
`
`The Supreme Court returned to online age assurance in Ashcroft v. ACLU, 542 U.S. 656
`
`(2004). Ashcroft dealt with Congress’s second attempt at protecting children from sexually
`
`explicit materials on the internet after the Supreme Court struck down its first attempt in Reno.
`
`This time, Congress passed the Child Online Protection Act (COPA), which narrowed the scope of
`
`the content prohibited to children and broadened the age assurance affirmative defense. Id. at
`
`661–62. Again, the Supreme Court considered whether age assurance helped to narrowly tailor
`
`COPA to Congress’s purpose. And once again, the Supreme Court answered no. Id. at 666–70.
`
`Like it did in Reno, the Supreme Court reached this answer by carefully parsing the district court’s
`
`findings of fact. The district court found that, based on the current state of age assurance methods,
`
`a less restrictive alternative—filtering technology—would be more effective than age assurance.
`
`Id. at 668. Importantly, the Supreme Court also remanded this case for additional factfinding
`
`because the record in front of it “[did] not reflect current technological reality.” Id. at 671.
`
`Further, Ashcroft expressly left open the possibility that, upon further factual development, the
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`9
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 10 of 34
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`district court could conclude that age assurance was the least restrictive alternative for meeting
`
`Congress’s purpose. Id. at 673. In doing so, the Supreme Court made clear that the viability of
`
`age assurance under the First Amendment is not an abstract question of law but rather requires a
`
`deep factual dive into how the implementation of age assurance using current technologies does or
`
`does not burden speech.
`
`On remand, both the district and circuit courts heeded this message about the factual nature
`
`of the First Amendment analysis of age assurance. ACLU v. Mukasey, 534 F.3d 181, 195–97 (3d
`
`Cir. 2008). The circuit court eventually affirmed a permanent injunction against COPA in part
`
`because it agreed with the district court that the presence of the age assurance defense “[did] not
`
`aid in narrowly tailoring COPA.” Id. For a third time, the district court’s factual findings were
`
`key. Even after updating the record, the district court found that no effective age assurance
`
`options existed at the time, that options requiring payment or personal information would deter
`
`adult users, and websites themselves would have to bear implementation costs disproportionate to
`
`age assurance’s usefulness. Id.
`
`The lesson from this line of cases is that a First Amendment analysis of age assurance
`
`requirements entails a careful evaluation of how those requirements burden speech. That type of
`
`evaluation is highly factual and depends on the current state of age assurance technology. For
`
`example, if certain speech is prohibited to minors but there is no effective age assurance
`
`mechanism, websites and other speakers might err on the side of denying the prohibited speech to
`
`both adults and children so that they can avoid liability. Or, if there are effective age assurance
`
`mechanisms but they are onerous, implementing those mechanisms might discourage adults from
`
`accessing speech that they are entitled to since those adults may not wish to go through the hassle
`
`of age assurance.
`
`Of course, the fact that technology can rapidly change does not render an issue unfit for
`
`judicial review. Such rapid change is commonplace, and courts cannot avoid adjudicating
`
`technology issues simply because technology progresses quickly. Nor does the need for a robust
`
`factual record render an issue unfit for judicial review by itself. Most cases will require the parties
`
`to explore relevant factual circumstances. The key is whether the current circumstances are
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`10
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 11 of 34
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`sufficiently concrete in ways that allow a court to determine the scope and effects of a challenged
`
`regulation. Alaska Right to Life, 504 F.3d at 849 (citation omitted). The reason this case is not fit
`
`for judicial review is because SB 976’s requirements for age assurance are still in flux. SB 976
`
`requires covered entities to “reasonably determine[]” whether a user is a minor starting January 1,
`
`2027. Cal Health & Safety Code §§ 27001(a)(1)(B), 27002(a)(2). That requirement, however, is
`
`merely a “starting point” for determining what covered companies will have to do. United States
`
`v. Braren, 338 F.3d 971, 976 (9th Cir. 2003). SB 976 also requires Defendant to promulgate
`
`regulations implementing these age assurance provisions. Cal Health & Safety Code § 27006(b).
`
`There are many ways that those regulations can interpret what it means to make “reasonable” age
`
`assurance efforts. Perhaps the regulations might require covered entities to verify age through
`
`photo identification. Or alternatively, they may permit covered entities to use age estimation
`
`tools, such as by using computer vision to analyze facial features. Amicus Br. 11–12, ECF No.
`
`31-1 (citing Noah Apthorpe et al., Online Age Gating: An Interdisciplinary Evaluation 21–22
`
`(Aug. 1, 2024), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4937328). The regulations
`
`may even allow covered entities to estimate age using tools that run in the background and require
`
`no user input. For example, many companies now collect extensive data about users’ activity
`
`throughout the internet that allow them to develop comprehensive profiles of each user for
`
`targeted advertising. Id. at 12; see also, e.g., Egelman Decl. ¶¶ 20–21, ECF No. 18-1. The
`
`regulations implementing SB 976 could permit covered entities to use such advertising profiles or
`
`similar techniques to estimate age without needing a user to affirmatively submit information.
`
`These differences matter. As NetChoice itself observes, the burden placed on covered
`
`companies to conduct age assurance varies “with the level of certainty with which companies must
`
`verify ages.” Cleland Decl. ¶ 29. So too will the burdens that age assurance places on adult
`
`access to speech. While adults might be reluctant or unable to provide photo identification, age
`
`assurance that runs in the background may discourage few if any adults from accessing speech.
`
`All this is important when assessing whether SB 976’s age assurance requirement is properly
`
`tailored to achieve California’s goal of protecting children. And none of this can be developed in
`
`the factual record until Defendant issues regulations on age assurance. Until then, both the parties
`Case No.: 5:24-cv-07885-EJD
`ORDER GRANTING IN PART & DEN. IN PART MOT. FOR PRELIMINARY INJUNCTION
`11
`
`Northern District of California
`
`United States District Court
`
`

`

`Case 5:24-cv-07885-EJD Document 39 Filed 12/31/24 Page 12 of 34
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`and the Court would only be guessing at which age assurance tools they should focus on when
`
`weighing the burdens that those tools may have on speech. In sum, because Defendant still has
`
`significant leeway to clarify the scope of SB 976’s age assurance provisions, the issue of age
`
`assurance is not yet fit for review. Cf. Pakdel v. City & Cnty. of S.F., 594 U.S. 474, 480 (2021)
`
`(“[F]ailure to properly pursue administrative procedures [in a takings case] may render a claim
`
`unripe if avenues still remain for the government to clarify or change its decision.”) (emphasis
`
`omitted).
`
`NetChoice resists this conclusion by pointing to Brown v. Entertainment Merchants
`
`Association, 564 U.S. 786, 794 (2011), a case in which the Supreme Court struck down
`
`California’s ban on selling violent video games to minors. Brown explained that minors have First
`
`Amendment rights to receive speech, and those rights are