In recent years, lots of proposed laws purport to reduce “harmful” content on the internet, especially for kids. Some have good intentions. But the fact is, we can’t censor our way to a healthier internet.

When it comes to online (or offline) content, people simply don’t agree about what’s harmful. And people make mistakes, even in content moderation systems that have extensive human review and appropriate appeals. The systems get worse when automated filters are brought into the mix–as increasingly occurs, when moderating content at the vast scale of the internet.

Recently, EFF weighed in against an especially vague and poorly written proposal: California Ballot Initiative 23-0035, written by Common Sense Media. It would allow for plaintiffs to sue online information providers for damages of up to $1 million if it violates “its responsibility of ordinary care and skill to a child.”

We sent a public comment to California Attorney General Rob Bonta regarding the dangers of this wrongheaded proposal. While the AG’s office does not typically take action for or against ballot initiatives at this stage of the process, we wanted to register our opposition to the initiative as early as we could.

Initiative 23-0035  would result in broad censorship via a flood of lawsuits claiming that all manner of content online is harmful to a single child. While it is possible for children (and adults) to be harmed online, Initiative 23-0035’s vague standard, combined with extraordinarily large statutory damages, will severely limit access to important online discussions for both minors and adults. Many online platforms will censor user content in order to avoid this legal risk.

The following are just a few of the many areas of culture, politics, and life where people have different views of what is “harmful,” and where this ballot initiative thus could cause removal of online content:

  • Discussions about LGBTQ life, culture, and health care.
  • Discussions about dangerous sports like tackle football, e-bikes, or sport shooting.
  • Discussions about substance abuse, depression, or anxiety, including conversations among people seeking treatment and recovery.

In addition, the proposed initiative would lead to mandatory age verification. It’s wrong to force someone to show ID before they go online to search for information. It eliminates the right to speak or to find information anonymously, for both minors and adults.

This initiative, with its vague language, is arguably worse than the misnamed Kids Online Safety Act, a federal censorship bill that we are opposing. We hope the sponsors of this initiative choose not to move forward with this wrongheaded and unconstitutional proposal. If they do, we are prepared to oppose it.

You can read EFF’s full letter to A.G. Bonta here.

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