Governor Gavin Newsom of California has officially signed AB 1394 into law, penalizing web services for their role in “knowingly facilitating, aiding, or abetting commercial sexual exploitation” of children. This law is part of a series of online regulations that California has enacted recently, some of which have faced constitutional challenges.
According to a press release from Newsom’s office, AB 1394, approved by California’s legislature in late September, will come into effect on January 1, 2025. It introduces new guidelines and liabilities designed to compel social media platforms to take more robust measures against child sexual abuse material.
It also imposes penalties on platforms that knowingly keep reported content online. Moreover, the law broadens the definition of “aiding or abetting” to encompass actions like implementing features or systems that significantly contribute to minors falling victim to commercial sexual exploitation. Services can mitigate their risks by conducting regular system audits.
The motivation behind this legislation draws from whistleblower complaints alleging inadequate responses from Facebook to child abuse on its platform and a 2022 Forbes article that accused TikTok Live of becoming a breeding ground for adults preying on teenage users. Notable supporters of this law include the child-focused nonprofit organization Common Sense Media.
However, similar to other online regulations, it raises concerns about unintended consequences, such as encouraging platforms to either under-enforce rules to avoid knowingly hosting illegal material or over-enforce them and remove innocuous content. Some liken this bill to a “mini-California FOSTA,” referencing the widely criticized federal law that penalized web platforms for content advertising sex services.
Industry trade associations, TechNet and NetChoice, have expressed concerns about the bill, with NetChoice urging Newsom to veto it in September. According to Carl Szabo, Vice President and General Counsel of NetChoice, “Unfortunately, in the legislature’s desire to decrease CSAM online, it passed a bill that imposes liability in a manner inconsistent with the First Amendment.”
Despite these concerns, AB 1394 has received less attention than other California internet laws. In September, Elon Musk’s X (formerly Twitter) filed a lawsuit against AB 587, which requires platforms to establish and publish plans for addressing hate speech.
NetChoice, which successfully challenged social media moderation bans in Texas and Florida, recently convinced a judge to block the California Age-Appropriate Design Code Act on constitutional grounds. However, whether NetChoice plans to mount a similar challenge against AB 1394 remains to be seen.