Big Tech: Lawsuits in the Seattle School District over social media tort face a difficult legal road

Like the tobacco, oil, guns, opiates, and vaping industries before them, major US social media companies are now facing lawsuits brought by public entities seeking to hold them responsible for a huge societal problem—in their case, a mental health crisis among young people. But the new lawsuits — one by the Seattle public school district last week, a second filed by the suburban district on Monday and there are almost certainly more to come — face an uncertain legal path.

The US Supreme Court is set to hear arguments next month about how well federal law protects the tech industry from such claims when social media algorithms push potentially harmful content.

Even if the Supreme Court paves the way for lawsuits like Seattle’s, the district faces an enormous challenge in proving industry liability.

And the tech industry insists there are many ways in which the effects of social media on adolescent mental health differ from, say, the role of big drug companies in driving opioid addiction.

“The basic argument is that the tech industry is to blame for teens’ emotional state, because they made recommendations about content that caused emotional harm,” said Carl Szabo, vice president and general counsel of technology industry trade association NetChoice. “It would be pointless to sue Barnes & Noble because an employee recommended a book that caused emotional harm or made a teenager feel bad. But that’s exactly what this lawsuit does.”

Seattle Public Schools on Friday sued the tech giants behind TikTok, Instagram, Facebook, YouTube and Snapchat, alleging they caused a public nuisance by targeting their products at children. The Kent School District south of Seattle followed suit on Monday.

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The boycotts blame the companies for poor mental health and behavioral disorders including anxiety, depression, disordered eating, and cyberbullying; increasing the difficulty of teaching students; and forcing schools to take steps such as hiring additional mental health professionals, developing lesson plans around the effects of social media, and providing additional training for teachers. “Our students — and young people everywhere — face unprecedented learning and life difficulties that are exacerbated by the negative effects of increased screen time, unfiltered content, and potentially addictive characteristics of social media,” Seattle principal Brent Jones said in an emailed statement Tuesday. “We are confident and hope that this lawsuit will be an important step toward reversing that trend for our students.”

Federal law — Section 230 of the Communications Decency Act of 1996 — helps protect online companies from liability arising from what third-party users post on their platforms. But the lawsuits argue that the ruling, which precedes all social media platforms, does not protect the tech giants’ behavior in this case, as their algorithms promote malicious content.

This is also the case in Gonzalez v. that YouTube’s algorithms helped recruit the terrorist group.

If the Supreme Court’s decision makes it clear that tech companies can be held liable in such cases, school districts must still show that social media is in fact responsible. The Seattle lawsuit says that from 2009 to 2019, there was an average of 30% increase in the number of its students who reported being “so sad or hopeless almost every day for two weeks or more in a row” that they stopped doing some usual activities.

But Szabo noted that Seattle’s graduation rates have been on the rise since 2019, at a time when many kids have relied on social media to stay in touch with their friends throughout the pandemic. He suggested that if social media was truly detrimental to the district’s educational efforts, the graduation rate would not go up.

“The complaint is focused solely on how social media is harming children, and there may be evidence of that,” said Eric Goldman, a professor at Santa Clara University School of Law in Silicon Valley. “But there’s also a lot of evidence that social media benefits teens and other children. What we don’t know is what the distress rate would look like without social media. The distress rate is likely to be higher, not lower.”

The companies insisted they take the safety of their users, especially children, very seriously, and have provided tools to make it easier for parents to see who their children are communicating with; making mental health resources, including the new 988 crisis hotline, more prominent; and improved age checking and screen time limits.

“We automatically set teen accounts to private when they join Instagram, and we send notifications to encourage them to take regular breaks,” Anitigone Davis, Head of Global Safety at Meta, said in an emailed statement. “We do not allow content that promotes suicide, self-harm, or eating disorders, and the content that we remove or take action on, we identify over 99% of before it is reported to us.”

Even if social media benefits some students, it doesn’t erase the serious harm it does to many other students, said Josh Golin, executive director of Fairplay for Kids, a nonprofit that works to insulate children from marketing and marketing.

“The costs to students’ mental health, and the amount of time schools spend monitoring and responding to social media drama, are exorbitant,” Golin said. “It is quite ironic that schools are responsible for the harms that social media platforms cause to young people. No one sees the kinds of cumulative effects that social media causes to the extent that school districts do.”

Both cases were filed in the U.S. District Court in Seattle, but they rest on the state’s public nuisance statute—a broad, vaguely defined legal concept that has its origins in at least the 13th century England. In Washington, public nuisance is defined, in part, as “every act done unlawfully and every dereliction of duty” that would “disturb, injure, or endanger the safety, health, comfort, or convenience of a large number of persons.”

Most famously, public nuisance lawsuits helped push the tobacco industry into a $246 billion 25-year settlement with states in 1998. But public nuisance law has also been at least part of the basis for litigation by state, city, county, or tribal governments seeking to blame oil companies for climate change, the arms industry for gun violence, the pharmaceutical industry for the opioid crisis and e-cigarette companies like Juul for vaping teens.

Much of this litigation is ongoing. Last month, Juul Labs agreed to settle thousands of lawsuits – including 1,400 from school districts, cities and counties – for US$1.2 billion.

Such litigation has the potential to effect tremendous change, but it also raises questions about the appropriateness of addressing large societal issues in court rather than through a law-making process.

Julina Quaresma, senior advisor for privacy policy and technology at Common Sense Media, which aims to make media safer for children, said she was pleased to see a school district file a public nuisance lawsuit against the tech companies.

“People are tired of waiting for Congress to do something,” she said.

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