Wrong approach to social media

Last month, a bill aimed at protecting children online passed unanimously out of the California Assembly. This bill is well-intentioned, but if enacted, it will only induce frivolous litigation under the pretense of child welfare.

The “Social Media Platform Duty to Children Act” (AB 2408) would impose a highly unusual duty of care on social media websites in order to bring forth changes for children online. According to the bill, which has garnered bipartisan support from state lawmakers, “an operator of a social media platform shall be found to have violated their duty if [their] platform is found to have addicted a child user.” Liability based on social media “addiction” is a new concept, and one that is extremely difficult to execute in practice. The more probable outcome is that the bill will create onerous requirements that cannot reasonably be fulfilled, while lowering the bar for plaintiffs to sue the largest online platforms.

Similar to other content moderation proposals introduced over the past year, this bill targets “Big Tech” companies and their perceived harms to society. But unlike the rest, it doesn’t shield children from offensive and objectionable content on social media. Rather, it attempts to protect children from social media itself. Proponents of AB 2408 argue that the websites are structured in ways that cause children to become dependent on them. Assemblymember Jordan Cunningham, one of the authors of the bill, stated that “AB 2408 would create, for the first time in law anywhere in the United States, a duty that if you are going to design a social media platform and allow children to use it, minors, that you would have to design it in a way that is not addictive to those kids.”

It is worth considering what success would look like if the bill were implemented. As Assemblymember Cunningham stated, the primary goal is to reshape the design of social media platforms so that they do not “addict” children, either by the use of personal data or “the development, design, [or] implementation” of the service. This means that, in order to comply with the bill, companies must revamp their offerings – from the algorithms they use to sort content, to the post themselves. If these changes cannot prevent all real and perceived harms on the platform, the companies will inevitably incur the steep costs of endless civil litigation.

Such changes would require companies to overhaul their entire business model, since the purpose of social media is engagement and entertainment. What is considered a successful product in a business sense is now “addictive” and “harmful” in the eyes of lawmakers.

It is unlikely that social media companies will be able to alter their platforms to satisfy the requirements of the bill. So what happens next? Any person “authorized to assert the legal rights of a child user” may allege that the user suffered psychological “injury.” Should the company be found to have violated the law, plaintiffs would be entitled to receive between $1,000 and $25,000, depending on the type of case filed. This private right of action, built upon vague standards, is ripe for abuse and, even worse, would do little to help children who have been adversely affected by what they see online.

Ultimately, it is unreasonable to hold social media companies liable for subjective, psychological arguments of addiction, when the problem actually needs a more personal or community-based solution. AB 2408 relies upon unsuitable metrics that cannot adequately be translated into actual and tangible modifications to the platform. The result will be a highly litigious environment, which will hardly help any children or users in California.