On June 30, TJLP and several partners filed an amicus brief supporting the California AG in the appeal of a landmark multi-district litigation (MDL), In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation. TJLP worked in coalition with partners EPIC, Common Sense Media, and Cybersecurity for Democracy (C4D) to help the U.S. Court of Appeals for the Ninth Circuit understand how CDA Section 230 does not allow social media companies to dodge the various defective design claims alleged in the lawsuit. Several noted legal scholars with expertise on Section 230, platform governance, and digital rights also signed on to the brief.
The brief describes the “moderator’s dilemma” which motivated Congress back in the 1990s to inoculate early website hosts from potential legal liability when a user posted unlawful content; without such protections, website providers would either have to review every single piece of user content to suss out the harmful from the benign and moderate accordingly (or risk being sued), or they would just choose not to provide the website altogether to prevent the hassle and expense of such detailed review. Congress codified legal immunity in Section 230 to encourage the growth of the internet by easing this dilemma.
The brief goes on to explain why the allegedly defective platform design choices Defendant Meta made on Instagram, for example, do not implicate the moderator’s dilemma and are not shielded from legal accountability. It analyzes the following features: infinite scroll and autoplay, usage-maximizing recommender systems, appearance-altering filters, disruptive notifications, ephemeral content, algorithms based on intermittent variable reinforcement schedules, and other design features that the state AGs claim lead to addictive use of social media by teenagers. Importantly, this section provides alternative UX designs that Meta could have chosen instead that would not impact user content (but may reduce the harms teens currently experience).
Finally, the brief counters tech companies’ tired claim that were Section 230 not to shield them completely from liability–even over their own design choices–the internet would be destroyed. The brief points to the fact that many of the alternative designs it suggests were the normal, predominant features on the same social media platforms just a few years ago. Further, the brief argues that finding Section 230 immunity does not apply to design-based claims “is actually good for society because it will lead companies to design their platforms in more pro-social ways.” Rather than destroy the internet, such a ruling could radically improve it.
TJLP frequently works in coalition to educate judges further about emergent technologies, UX design, and the limits of laws like Section 230 when applied to platforms’ own harmful conduct. By leveraging the expertise of leading scholars and partner orgs, TJLP will continue to advocate for better, healthier online environments for children, teens, and adults.