On August 16, 2024, the Ninth Circuit ruled in NetChoice v. Bonta to strike significant portions of California’s Age-Appropriate Design Code (AADC) on First Amendment grounds. The Act was designed to enhance privacy and safety provisions for children online. The Ninth Circuit Court upheld the law’s ban on “dark patterns,” finding that the provision regulates conduct rather than speech. Dark patterns are unfair or deceptive practices that guide a user’s decision making to benefit the online service, tricking vulnerable users into providing personal information or agreeing to privacy-invasive terms.
What is the California Age-Appropriate Design Code?
The AADC is a significant attempt to regulate online platforms for child safety, outlining provisions such as age estimation, privacy by default, data minimization, risk assessments, child-friendly language, notifications when location tracking, prohibiting profiling of children, and banning dark patterns used to manipulate children into providing personal information or payment. It was to be applied to businesses that provide online services, products, or features “likely to be accessed by children”. The act was modeled after the UK Age-Appropriate Design Code and would be enforced by the California Attorney General.
Comparison of Ninth Circuit and District Court
| The Northern District Court | The Ninth Circuit |
| Granted NetChoice’s request for preliminary injunction against the AADC. | Affirmed in part and vacated in part the Northern District’s preliminary injunction. |
| Found that though the stated purpose of AADC is important, NetChoice is likely to succeed on the merits that provisions do not pass constitutional muster. | Ruled that many provisions of the AADC implicated First Amendment protections and were thus unconstitutional. |
| Determined that intermediate scrutiny for commercial speech was the appropriate standard of review. | Determined that strict scrutiny was the appropriate standard for the content-based nature of the AADC’s provisions. |
| Found that NetChoice was likely to succeed on the merits of its claim that the provisions of the CAADCA intended to protect children online likely violate the First Amendment. | Concluded that NetChoice was likely to succeed in proving that AADC provisions violated the First Amendment. |
| Found no issue of broadness on the definition of children. | Parts of AADC are overly broad, particularly in its definition of children as anyone under 18. |
| The Court found that NetChoice established a likelihood of irreparable harm absent issuance of the requested preliminary injunction. | Found the likely First Amendment violations constituted irreparable harm, warranting issuance of the injunction. |
| Sustained attacks on several provisions that at face value do not necessarily impact protected speech, concluding that these provisions were unlikely to survive First Amendment scrutiny. | Found that the district court failed to properly consider the facial nature of NetChoice’s challenges to certain provisions of the AADC, making it difficult to determine on appeal whether these provisions are likely to facially violate the First Amendment, hence the decision to vacate the district court’s preliminary injunction on said provisions. |
| Determined that Data Protection Impact Assessment (DPIA) report requirement is unlikely to be functionally severable from the remainder of the law. This would effectively invalidate the entire statute. | Found that it is too early to determine at this stage whether the unconstitutional provisions are severable from the valid remainder of the statute and sent the matter back to the district court for determination of the issue. |
| Balance of equities and the public interest support issuance of the injunction. | The State did not challenge this determination, so the 9th Circuit did not address the issue. |
CITP Amicus Brief
Our Tech Policy Clinic filed an amicus brief on behalf of a broad group of researchers about the dark pattern provision of the AADC, arguing that banning dark patterns does not violate the First Amendment, as the provision regulates conduct and design features, not content. There is no content-based evaluation required in the law.
To contextualize this argument, the brief outlines defining attributes of dark patterns and example applications and enforcement actions, illustrating the harms of dark patterns on users that fall within two overall themes of deceptive design. This information comes from Arunesh Mathur’s 2021 peer-reviewed paper “What makes a dark pattern… dark?”
The Ninth Circuit’s Argument on Dark Patterns
The Ninth Circuit upheld the portion of the California law that prohibits the use of dark patterns to obtain consent from children. The opinion stated: “Even in applications where the ban on ‘dark patterns’ is likely to impact other categories of protected speech, such as the editorial decisions of social media companies, it is far from certain that such a ban should be scrutinized as a content-based restriction, as opposed to a content-neutral regulation of expression.”
The Ninth Circuit’s argument concurred with CITP Clinic’s brief argument that the dark pattern provision addresses non-expressive conduct, aimed at preventing unfair and deceptive practices and design features from harming vulnerable users, thus passing muster under the First Amendment.
The courts ruled that this provision is a legitimate way to protect children from deceptive business practices. This decision highlights the legal distinction between regulating deceptive practices (which was seen as permissible) and the requirements to moderate harmful content (which ran afoul of the First Amendment).
Broad Implications
The Ninth Circuit court recognized the state’s interest in protecting children from manipulative design practices online. The decision represents an important development in the regulation of user interface design, particularly as it relates to younger internet users.
Alongside federal efforts, various states like Colorado, Connecticut, Delaware, and Texas have passed legislation prohibiting dark patterns that improperly obtain consent from users. We anticipate that the issue of dark patterns will continue to be litigated in other courts and plan to remain engaged in protecting the rights of users.
Great piece! Anyone with even a passing interest in the subject should read your in-depth analysis and explanations. Your inclusion of examples and practical ideas is really appreciated. We appreciate you being so kind with your time and expertise.