California bill would let parents sue social media companies

California parents whose children become addicted to social media apps would be able to sue for damages under a bill advanced Tuesday in the state Assembly by a bipartisan pair of lawmakers.

Assembly Bill 2408, or the Social Media Platform Duty to Children Act, was introduced by Republican Jordan Cunningham of Paso Robles and Democrat Buffy Wicks of Oakland with support from the University of San Diego School of Law Children’s Advocacy Institute. It’s the latest in a string of legislative and political efforts to crack down on social media platforms’ exploitation of their youngest users.

“Some of these companies do indeed intentionally design features in their apps — that they know children are using — that cause the children to use it more and more and more, [and] exhibit signs of addiction,” Cunningham told The Times. “So the question to me becomes … who should pay the social cost of this? Should it be borne by the schools and the parents and the kids, or should it be borne in part by the companies that profited from creating these products?”

“We do this with any product you sell to kids,” he added. “You have to make sure it’s safe. Some sort of stuffed animal or something that you’re selling to parents that are going to put it in their five-year-olds’ bed — you can’t have toxic chemicals in it. … We just haven’t done that as a society, yet, when it comes to social media. And I think the time is now to do that.”

Press materials from the Children’s Advocacy Institute explain that the bill would first obligate social media companies to not addict child users — if necessary amending their design features and data collection practices — and then empower parents and guardians to pursue legal action in the name of any children injured by companies that fail to comply.

Damages could include $1,000 or more per child in a class-action suit, or up to $25,000 per child per year in a civil penalty, the Institute continued.

However, it added, there would also be a safe harbor provision that would protect “responsible” social media platforms from being penalized if they took “basic steps to avoid addicting children.” Companies earning under $100 million a year would also be excluded.

“I suspect you’ll see a range of potential [compliance] solutions,” Cunningham said. “There might be some companies that stop letting kids sign up; that’s probably the safest thing to do. But I don’t know that they’re going to do that. Whatever features within their algorithms that are creating the addictions, especially in teenagers — they can disable those features. That could be another thing.”

Calls to regulate social media companies have grown increasingly loud over the past few years, buoyed by an increasing backlash against companies such as Twitter, TikTok and Meta (formerly Facebook). Critics have focused on a number of different problems with the firms, including their collection of user data, their role in shaping public discourse and their largely unilateral decisions about how to moderate — and not moderate — user content.

But the impact they have on children has been a particularly charged issue, and one which has proven uniquely conducive to across-the-aisle collaboration. The issue reached a fever pitch late last year when whistleblower and former Facebook employee Frances Haugen leaked documents indicating that the company was aware of the extent to which its subsidiary platform Instagram can take a negative toll on young users’ mental health, especially when it comes to teenage girls and body image issues. (Some external research supports this, although teenage boys certainly face their own social media-driven body image issues.)

In the aftermath of Haugen’s leaks — and subsequent testimony before Congress — extensive bipartisan criticism of Big Tech coalesced around the impact of social media on underage users.

In one such instance, California Atty. Gen. Rob Bonta helped launch a large-scale investigation into how TikTok may be preying on children earlier this month. A few months earlier, Bonta became involved in a similar investigation into Instagram, also focused on young users.

Last November, Ohio’s attorney general sued Meta for allegedly having misled investors about the effect its products can have on children, boosting its stock in violation of federal securities laws.

And this January, a Connecticut mother filed a lawsuit against both Meta and Snapchat owner Snap for “defective design, negligence and unreasonably dangerous features” after her daughter took her own life last summer.

Case documents reported on by the Washington Post claim that Meta and Snap are responsible for a “burgeoning mental health crisis perpetrated upon the children and teenagers in the United States” and, more specifically, for “the wrongful death of 11-year-old Selena Rodriguez caused by Selena’s addictive use of and exposure to” the platforms.

Efforts to launch an “Instagram Kids” spin-off app were also paused in the wake of Haugen’s whistleblowing. A similar product launched by YouTube in 2015 — “YouTube Kids” — has proven more durable, but ditched the main platform’s focus on algorithmic video recommendations to instead focus on slower, more controlled human curation.

The theme even made an appearance in President Biden’s most recent State of the Union address.

“We must hold social media platforms accountable for the national experiment they’re conducting on our children for profit,” the president said.

Indeed, Haugen’s leaks were a “catalyst” for Cunningham’s new bill, though not his sole motivator.

“It’s something that had been on my mind — and my joint author Buffy Wick’s mind as well — for a number of years,” the assemblymember said. “We come at it from the standpoint of being legislators that are also parents. I’ve got four kids: three teenagers and a first grader. And I have many, many friends that have confided in me over the last couple years that their kids, through the use of TikTok or Instagram or both, were suffering psychiatric issues: depression, body image issues, in some cases even anorexia.”

Thanks to the protection afforded them by a snippet of regulatory language called Section 230, internet platforms enjoy wide legal protection to host content that their users post without being themselves liable for it. Some lawyers describe it as a “brick wall” preventing any meaningful suits against the tech giants, and indeed, it has impeded some efforts to change how social media operates in America.

But the new assembly bill that Cunningham and Wicks have begun pushing attempts to sidestep that issue by targeting the platform’s algorithms, rather than any specific post.

“This bill targets the harms that result from social media company’s practices and product features,” the Children’s Advocacy Institute wrote, rather than the user content that Section 230 protects.

According to the Institute, the bill will be heard by the State Assembly’s Judiciary Committee come springtime. Cunningham said he hopes to get it to Gov. Gavin Newsom by September.