The sweeping lawsuits from over 40 states filed against Meta this week — the biggest legal strike at the social-media giant yet over kids’ safety — are deploying a novel tactic for going after social-media platforms, one that a handful of Republican states are also trying out in their campaign against TikTok.
This week’s lawsuits accuse Facebook and Instagram of harming children with deliberately addictive features, and misleading users about their products’ risks. They’re using state consumer-protection laws to make the case, a weapon that prosecutors hope will let them break through the powerful protections that online platforms enjoy under U.S. law.
The approach echoes one taken by three GOP-led states — Indiana, Arkansas and Utah — in their suits against the ultra-popular app TikTok.
With Washington largely at a political standstill on regulating social-media platforms of any kind, those Republican states began mobilizing a unique legal strategy over the past year, using their existing consumer-protection laws to allege that TikTok was misleading users about its safety claims and its relationship with China-based owner ByteDance, and could pose a national security threat.
The goal, say lawyers, is to work around a 1996 law — Section 230 of the Communications Decency Act — that protects websites from being sued over most of the content that other people post on their sites.
“They don’t have Section 230 immunity for misleading consumers about the content on their platform,” said David Thompson, a managing partner at Cooper and Kirk who is the lead attorney for Indiana and Arkansas’ TikTok cases.
Republican New Hampshire Attorney General John Formella hit the issue directly in a press conference following the multi-state Meta lawsuit on Tuesday: “We believe that Section 230 defense will be one defense that Meta raises. We do not believe it will be successful."
All 50 states and the District of Columbia have their own consumer protection laws — known as Unfair and Deceptive Acts and Practices statutes, going back to the 1970’s and 1980’s — that were intentionally written broadly to encompass new technologies.
Two weeks ago, the attorney general of Utah filed a consumer protection lawsuit against TikTok, saying the app harms kids and deceives users about ties to its Beijing-based owner ByteDance. That followed two suits from Indiana, and two from Arkansas filed over the past year alleging similar claims that the viral video app pushes unsafe content to kids, and its connection to China threatens consumers’ data security.
The multi-state federal lawsuit and accompanying state lawsuits against Meta landed on Tuesday. Republican and Democratic attorneys general from 41 states and the District of Columbia followed largely the same playbook, suing on consumer protection grounds. The federal lawsuit also alleges Meta violated a federal kids’ privacy law as well.
Both TikTok and Meta are pushing back. TikTok has moved to dismiss the first lawsuit filed by Indiana, and has also defended the safeguards it puts in place for kids, including an automated 60-minute time limit for users under 18 and parental controls for accounts created by teens. “We will continue to work to keep our community safe by tackling industry-wide challenges,” Michael Hughes, a TikTok spokesperson, told POLITICO.
Similarly, Meta has criticized the lawsuits, saying it has made more than 30 design changes in recent years to improve children’s safety across its products. “We’re disappointed that instead of working productively with companies across the industry to create clear, age-appropriate standards for the many apps teens use, the attorneys general have chosen this path,” a Meta spokesperson said in a statement.
The states, and the companies, could be in for a long and costly fight.
The sweeping new suits have drawn comparison to the multi-state suits against Big Tobacco in the 1990’s, which took years to resolve, led to a $206 billion settlement and eventually curtailed what once seemed like an unstoppable industry.
Eric Goldman, an internet law professor at the Santa Clara University School of Law, called those comparisons “ill-informed” because online platforms are speech products that have qualitatively different legal protections than tobacco products — including the First Amendment. “So I think none of the precedents involving other kinds of harmful goods or services predict what happens in the speech cases,” he said.
He said the state lawsuits appear to be going after the underlying content itself, which would ultimately sink the states’ argument. “If the addiction is to the consumption of third-party content,” he said, “we're back at the same place that Section 230 says that the states can't go.”
Vera Eidelman, an attorney at the American Civil Liberties Union, said that unlike tobacco products that are harmful to health, “it’s important to note that really valuable stuff happens on social media.” The platforms give kids access to information they may not have found otherwise, and connection to communities outside of their locality.
The novel approach of the new round of lawsuits — and the challenges the states now face — highlight a void in federal law. Despite bipartisan criticism of social media platforms, none of the bills on digital privacy and safety introduced over the past few years have passed. Pressure has also come from the White House, with President Joe Biden pushing for lawmakers to act and his U.S. Surgeon General warning that extended use of social media apps like Instagram and TikTok harm children’s mental health. But with Congress facing an uphill battle to pass any kind of safety legislation, Washington has few if any tools to rein in social media platforms — shifting the momentum largely to the states.
“It really shows that Congress is derelict. Congress is not doing anything on this,” said Sen. Josh Hawley (R-Mo.), of the state-level suits against TikTok and Meta. As Missouri’s former attorney general, he previously opened an investigation into Facebook’s data practices. “A big coalition like this was very effective in the tobacco case, it was very effective in the opioid case as a driver of change.”
Sen. Brian Schatz (D-Hawaii) pointed to an irony: Tech companies may have unintentionally brought the lawsuits onto themselves by lobbying so hard against federal laws. “This is a result of their strategy being successful. It's going to be disastrous for them until and unless they improve their products,” he said, “and until and unless they wrap their minds around the need for federal laws.”
TikTok may be the next target for another broad coalition state lawsuit. Democratic Colorado Attorney General Phil Weiser is helping lead a consumer protection investigation from 46 attorneys general into the viral video app’s alleged harm to kids’ mental health. They’re still getting documents in discovery.
The multi-state suit against Meta is the result of a similar investigation of Instagram launched by Democratic California Attorney General Rob Bonta and a group of other state AGs in November 2021, after Facebook whistleblower Frances Haugen testified before Congress that Instagram knew its algorithms pushed unhealthy eating content to teen girls.
“Our investigation of Meta was not by any means just about Meta — it was about the broader challenges, and the TikTok matter is very much on our minds as well,” Weiser said.
In the interim, the U.S. government and more than 30 states have banned TikTok on government-owned devices. Montana went further by passing a law this summer specifically banning TikTok as a national security threat. However, that law is now facing a First Amendment challenge and a judge appeared skeptical of its legality.
Ultimately, the lawsuits could take a long time to resolve. Weiser stressed he’s looking for dynamic remedies — at least for Meta’s products — that are adaptive, so that new features don't have the same addictive tendencies as their current products.
“So it's gonna require us to be thoughtful, creative and effective. We're up to this challenge and we're gonna pursue this as vigilantly as we can,” he said.
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