‘Orwellian overreach’: Social media platforms file lawsuit over Md. law on kids online privacy
A trade association representing major social media platforms asked a federal judge Monday to block a state law that imposes privacy and other protections on children using social media and other online platforms.
The lawsuit by NetChoice, which has been expected for months, comes four months after the so-called Maryland Kids Code became law.
Chris Marchese, director of litigation for NetChoice, called the law “Orwellian overreach” and the group’s suit says the law violates its First and 14th Amendment rights.
“Turning websites into arms of government censorship violates the Constitution and creates new dangers for the very people this law claims to protect—while doing nothing to meaningfully improve online safety,” Marchese said in a statement.
House Bill 603 and Senate Bill 571 were signed into law in May and took effect in October. The law requires default privacy settings and safety measures for children, restricts the the collection of data from minors by social media companies and blocks the sale of that data.
It also requires that social media companies complete assessments of new features, due in 2026, that focus on the effects of features on children.
Maryland Kids Code, an organization that backed the Maryland law, expressed “deep outrage that NetChoice and Big Tech are seeking to reverse the Maryland Kids Code.”
“The Maryland legislature and the people of Maryland have spoken. The online safety of our children is paramount,” said coalition members Todd Minor Sr. and Mia Minor in a statement released by Maryland Kids Code. The Minors are directors of the Matthew E. Minor Awareness Foundation, named in honor of their son who died taking part in a social media challenge.
“As painful as it has been to share the loss of our beloved 12-year-old son, Matthew, to a social media challenge, we feel his story, along with the stories of other affected parents, families, and communities, resonates and underscores the need for NetChoice member companies and Big Tech to update their business model as it relates to online child safety,” their statement said.
NetChoice members include Google, Facebook parent company Meta, and Amazon.
Sacha Haworth, executive director of the Tech Oversight Project, said in a statement that social media’s big players were attempting to block the law with “deep pockets and phony arguments.”
“NetChoice may be the brand behind the effort, but make no mistake, this lawsuit was bought and paid for by Meta, Google, X, Snap, and Amazon,” Haworth said in a statement. “We are confident the will of Maryland’s people will prevail in court, and we will continue to fight Big Tech tooth and nail to establish basic protections for America’s young people and their families.”
NetChoice has aggressively opposed similar efforts in other states. The group successfully blocked parts of a California law last summer, when a federal appeals court sent other parts back to a U.S. District Court judge for additional review.
The group noted the California case as part of its challenge to Maryland’s law.
Maryland’s law “presents websites with an impossible choice: either proactively censor broad categories of constitutionally protected speech or force users to submit sensitive personal information,” the group said in its statement.
“By compelling websites to collect sensitive documentation from users, this law would create a treasure trove of personal information that could devastate Marylanders’ privacy and security if compromised,” Marchese explained. “The constitutional problems are matched only by the cybersecurity risks.”
As part of its challenge, the NetChoice suit claims that two standards — the “best interest of children” and a “reasonably likely to be accessed” provisions — are vague.
It also alleges the law violates the First Amendment because it compels speech in the form of a data impact statement. Additionally, it violates the Constitution by limiting the collection of data used in “delivering protected speech” to users.
Finally, the group argues that the law is superseded by the federal Children’s Online Privacy Protection Act as well as other federal protections.
The suit comes as other states are considering similar laws.
Accountable Tech Executive Director Nicole Gill said in a statement that the tech firms are using the courts “to achieve what they couldn’t in Annapolis: shielding themselves from any ounce of accountability.”
“This latest lawsuit — the tenth legal challenge brought by NetChoice against overwhelmingly popular state safety bills — is an affront to the families and young people who fought and advocated for the successful passage of the Maryland Kids Code and to the millions who have borne the brunt of the industry’s toxic business practices,” Gill’s statement said. “NetChoice’s continued assault on tech safety makes it abundantly clear that tech companies would sooner pour millions into legal fees than protect young people from the dangers of their profit-driven algorithms.”
The Kids Coda Coalition on Monday applauded efforts to pass similar laws in six other states: Illinois, Michigan, Nebraska, South Carolina and Vermont.
“We are proud to see states across the country following Maryland’s lead in passing common-sense legislation to improve online experiences for kids by targeting product design,” said a statement from Del. Jared Solomon (D-Montgomery), sponsor of the Maryland. “This law will make a positive difference for kids in our state and around the nation.”
While tech firms have seen some wins in court against the California law, supporters at the time downplayed the potential effects of the August ruling on Maryland.
Nichole Rocha, a California-based data privacy rights attorney who worked on both the California and Maryland laws, said in August that advocates gave a lot of consideration to tweaks that strengthened Maryland’s law against the kind of legal challenges seen in California.
Even so, Attorney General Anthony Brown warned last year that some provisions may be constitutionally problematic.
“Based on our review, there is some risk that if the legislation is challenged, a reviewing court will construe some of the Maryland Act’s provisions, described below, to regulate speech or other expressive conduct, and as such, subject them to heightened scrutiny under the First Amendment and find those provisions unconstitutional,” Brown said in a May 6 review of the law before Gov. Wes Moore(D) signed it.
But Brown also said “it is not clear what level of scrutiny a court would apply,” and held out hope that the law, or at least parts, would survive an expected legal challenge.
“It is possible a court reviewing the Maryland Act would not make the same findings as the California federal court,” his letter said, “especially since Maryland’s Act does not contain some of the provisions of the California Act that the court found to restrict speech, such as a provision requiring covered entities to enforce privacy policies or a provision requiring an entity to assess whether an online product’s design would expose children to ‘harmful or potentially harmful, content.’”