Gavin Newsom Signs California’s Own FOSTA

A month ago, we explained how California bill AB 1394, kind of a mini-FOSTA for California, was so problematic, and was likely to be found unconstitutional, just like last year's Age Appropriate Design Code." AB 1394 is yet another of those but think of the children" laws that California loves these days, and it passed with basically no scrutiny at all. There was a brief mention of it in the LA Times, and the only substantive analysis of the bill I can find was mine on Techdirt's as well as John Perino's at Tech Policy Press.

And, so, of course, Gavin Newsom has signed the bill into law.

Again, the entire premise of the bill is problematic. It creates FOSTA-like incentives that say people can blame social media and hold sites liable if the site is found to be knowingly facilitating, aiding, or abetting commercial sexual exploitation." Now, many people will argue that the knowingly" part of this makes it okay, because if a site is knowingly doing any of those things, it sure sounds bad!

But, what it means in reality is that California has just opened the floodgates to highly questionable vexatious lawsuits if any CSAM content makes it onto any site. And, as horrible as this is, such content makes it on to any site that allows user uploaded content. We already have laws about how companies have to deal with that content, reporting it to NCMEC, who coordinates with law enforcement over it.

However, thanks to this new law in California, even if a company does everything right, as soon as any CSAM slips through the cracks, they will face a flood of lawsuits saying that they knowingly facilitated it. And then they will have to convince a court that it wasn't knowingly." And the best way to do that is to stop trying to find and stop CSAM, because you can't know about it if you aren't looking for it.

In other words, this law is a huge boost for those trafficking in CSAM by tying the hands of websites which have bent over backwards to try to find, report, and stop such content. With AB 1394 such actions will be taken as evidence that the site knowingly" chose to allow any such content that slips through its defenses. It's going to be a mess.

Either sites will cut back on their CSAM fighting efforts or, in the alternative, they will massively overblock content to avoid any risk of anything questionable making it to the site. We saw both effects happen after FOSTA became federal law, with sites like Tumblr and eBay blocking a ton of content that might, possibly, lead to lawsuits, and other sites cutting back on their policing efforts altogether.

Lots of people warned Newsom about the problems of this bill, but, you know he wants to be President and while apparently he can handle headlines over how he vetoed unemployment support for striking workers or capping the price of insulin, he needs some fake headlines about how he's protecting the children online," even as the last bill he signed to do that has already been found to be a 1st Amendment violation.