By: Sally Vazquez-Castellanos, Esq.
Published on March 16, 2026 at approximately 6:54 pm.
A Conversation With Generative AI: The “Kids Code,” the Best Interests of the Child, and the Battle Over the Future of the Internet
This morning’s chat with generative AI began with a familiar concept to anyone who practices family law: the “best interests of the child.” It is a phrase that appears throughout custody jurisprudence and guides courts in making decisions that affect children’s lives. In California, that standard is codified in California Family Code Section 3011, which directs courts to evaluate the health, safety, and welfare of the child when determining custody arrangements.
But what happens when lawmakers attempt to take this long-standing family-law principle and apply it to the architecture of the internet?
That question lies at the heart of the recent controversy surrounding the so-called “Kids Code” laws, particularly California’s California Age-Appropriate Design Code Act (AB 2273) and similar legislation emerging in states such as Maryland. The debate has become one of the most consequential legal battles in modern technology regulation because it forces courts, policymakers, and companies to confront a difficult question:
Can the internet be designed according to the “best interests of the child”?
From Family Law to Technology Regulation
For decades, courts have used the best-interest standard to evaluate custody disputes. Judges consider a variety of factors when determining what arrangement will best support a child’s well-being, including emotional stability, safety, parental involvement, and developmental needs.
The standard is intentionally flexible. Courts evaluate the specific circumstances of a child’s life and make individualized determinations based on evidence.
Technology regulation is different.
When lawmakers adopted the California Age-Appropriate Design Code, they attempted to apply a similar principle to digital platforms used by children. The law requires companies that provide online services likely to be accessed by minors to evaluate whether their product designs create risks to children’s privacy, safety, or well-being.
The statute reflects a shift away from traditional “notice and consent” privacy frameworks—those long privacy policies few people read—and toward design-based regulation. Instead of merely informing users about risks, companies must anticipate and mitigate those risks before deploying products.
Among other things, the law requires companies to:
-Conduct child risk assessments for services likely to be accessed by children
-Configure high privacy settings by default
-Minimize data collection from minors
-Evaluate whether product features may harm children’s well-being.
The underlying principle echoes family law:
The welfare of children should take precedence over competing interests.
The Constitutional Storm
Almost immediately after California enacted the Kids Code, the law faced a significant legal challenge.
A technology industry group representing major platforms filed suit, arguing that the statute violated the First Amendment. The plaintiffs contended that requiring companies to evaluate whether content or product features could harm children effectively forces platforms to regulate speech and expression.
In 2023, a federal district court issued an injunction preventing the law from taking effect while litigation continues. The court expressed concern that the statute might compel platforms to restrict lawful speech in order to avoid liability.
The case illustrates a deeper tension within American law.
In family court, judges routinely balance competing interests when determining what is best for a child. But when the same principle is applied to the internet, such as those protections afforded to platforms under the Communications Decency Act (CDA) – courts must also consider the constitutional protections afforded to speech.
This tension has turned the Kids Code debate into a broader discussion about the limits of government authority over digital platforms.
Why Europe Took a Different Path
Interestingly, similar laws have taken effect in Europe with far less controversy.
One reason is structural: European legal systems treat privacy and child protection as fundamental rights that can be balanced against freedom of expression. Under the European Convention on Human Rights, governments may impose restrictions on speech when necessary to protect the rights of others—including children.
European policy is also influenced by the United Nations Convention on the Rights of the Child, which states that the best interests of the child must be a primary consideration in all actions affecting children.
These principles have shaped European digital-safety laws such as the UK Age appropriate Design Code, which requires online services to prioritize children’s privacy and safety in product design.
Because European legal systems permit a balancing of rights, regulators have been able to adopt design-based protections for minors with relatively little constitutional resistance.
The Irony for Family Lawyers
From the perspective of a family law practitioner, the controversy surrounding Kids Code legislation carries a certain irony.
Family courts regularly regulate parental behavior online when it affects children’s welfare. Judges may restrict parents from posting disparaging comments about one another on social media, exposing children to public scrutiny, or sharing sensitive information about their lives online.
These decisions are grounded in the same principle that underlies custody law:
The child’s welfare must come first.
In other words, courts are already applying the best-interest standard to the digital lives of families. The Kids Code debate simply asks whether similar reasoning should apply to the companies that design the platforms where children increasingly spend their time.
The Larger Policy Question
The broader policy debate is not simply about social media.
It reflects a shift in how governments think about regulating technology.
For many years, privacy law relied on a model that assumed users could make informed choices about their data. But lawmakers and researchers increasingly question whether that assumption holds true for children navigating complex digital environments.
Kids Code legislation represents an attempt to move toward “privacy (safety by design)”—the idea that products should be engineered to reduce foreseeable harm before they reach users.
Whether that approach can coexist with American constitutional law remains an open question.
A New Frontier for Law and Technology
The debate over the Kids Code marks the beginning of a larger conversation about how society protects children in digital environments.
Family law has long recognized that children require special protection because they cannot fully assess risk. As children’s lives become increasingly intertwined with technology, lawmakers and courts are now asking whether that same principle should shape the design of the platforms they use.
The answer may determine how the next generation experiences the internet.
Sources
California Family Code § 3011
California Age-Appropriate Design Code
European Convention on Human Rights, Article 10
United Nations Convention on the Rights of the Child, Article 3
UK Information Commissioner’s Office, Age Appropriate Design Code
NetChoice, LLC v. Bonta, federal litigation challenging the California Age-Appropriate Design Code Act
California Office of the Attorney General statements regarding defense of the Age-Appropriate Design Code
Legal Disclaimer
This article is provided for informational and educational purposes only and does not constitute legal advice. The views expressed are those of the author and are intended to contribute to discussion regarding emerging issues in privacy, technology regulation, and children’s rights. Readers should consult qualified legal counsel regarding specific legal questions or circumstances.