Addictive by Design: Do Plaintiffs Suing Big Tech Stand a Chance?

In federal court, Seattle School District #1 is suing big tech companies under Washington state’s public nuisance law, alleging social media harms children’s mental health. Also, as a result of consolidating 100 cases, a large multi-district lawsuit in federal court in California is using products liability to take aim at big tech for harming children’s mental health (In re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation).

Both cases address the issues of exploiting children and knowingly designing apps to maximize screen time using unhealthy rewards schemes. There are so many ways that technology keeps kids coming back: endless scroll, repopulating videos when one ends, and countable rewards in the form of likes, etc. The Seattle complaint alleges defendants exploited “the vulnerable brains of youth, hooking tens of millions of students across the country into positive feedback loops of excessive use and abuse of Defendants’ social media platforms.”

Plaintiffs in the multi-district case have not yet filed their new master complaint.

Seattle Schools and Social Media as a Public Nuisance

Washington state nuisance statute:

Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property. – RCW 7.48.120: Nuisance defined. (wa.gov)

And public nuisance statute:

A public nuisance is one which affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal. – RCW 7.48.130: Public nuisance defined. (wa.gov)

The Seattle plaintiff will need to prove social media caused harm to the public school community. For standing, the school district is a public authority that has responsibility for children’s wellbeing and education. Usually public nuisance can be intentional or negligent. The complaint states that the defendants’ activities (designing the apps and algorithms and heavily marketing them to kids) “interferes with the comfortable enjoyment of life and property of the Seattle Public Schools community.” While it does not matter if every person potentially affected is actually bothered or harmed, the concept of public nuisance is that a community, neighborhood, group, or the general public is negatively affected.

Causation

The Seattle complaint demonstrates the unhealthy behaviors that social media encourages, like “unhealthy social comparison and feedback seeking behaviors.” Social media encourages people to seek approval of others and fosters negative comparisons. They allege that social media use increases eating disorders, cyberbullying, sleep deprivation, stress, anxiety, and depression. It interrupts sleep and studying and interferes with paying attention during school hours. I am listing below the journal articles that the Seattle complaint cites that link social media to various behavioral, mental, and emotional harms.

1. Amanda Giordano et al., Understanding Adolescent Cyberbullies: Exploring Social Media Addiction and Psychological Factors, 7(1) J. Child & Adolescent Counseling 42–55 (2021), https://www.tandfonline.com/doi/abs/10.1080/23727810.2020.1835420?journalCode=ucac20.
2. Ariel Shensa et al., Social Media Use and Depression and Anxiety Symptoms: A Cluster Analysis, 42(2) Am. J. Health Behav. 116–28 (2018) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5904786/.
3. Beatrice Nolan, Kids are waking up in the night to check their notifications and are losing about 1 night’s worth of sleep a week, study suggests, Bus. Insider (Sept. 19, 2022), https://www.businessinsider.com/social-media-costing-children-one-night-sleep-study-2022-9 (approximately 12.5% of children report waking up to check social media notifications)
4. Fazida Karim et al., Social Media Use and Its Connection to Mental Health: A Systemic Review, Cureus Volume 12(6) (June 15, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7364393/.
5. Gino Gugushvili et al., Facebook use intensity and depressive symptoms: a moderated mediation model of problematic Facebook use, age, neuroticism, and extraversion at 3, BMC Psych. 10, 279 (2022), https://doi.org/10.1186/s40359-022-00990-7.
6. Jacqueline Nesi & Mitchell J Prinstein, Using Social Media for Social Comparison and Feedback-Seeking: Gender and Popularity Moderate Associations with Depressive Symptoms, 43 J. Abnormal Child Psych. 1427–38 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5985443/.
7. Jean M. Twenge & W. Keith Campbell, Associations between screen time and lower psychological well-being among children and adolescents: Evidence from a population-based study, 12 Prev. Med. Rep. 271–83 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6214874/
8. Jean M. Twenge et al., Increases in Depressive Symptoms, Suicide-Related Outcomes, and Suicide Rates Among U.S. Adolescents After 2010 and Links to Increased New Media Screen Time, 6 Clinical Psych. Sci. 3–17 (2017)
9. Jessica C. Levenson et al., The Association Between Social Media Use and Sleep Disturbance Among Young Adults, 85 Preventive Med. 36–41 (Apr. 2016)
10. Matt Richtel, A Teen’s Journey Into the Internet’s Darkness and Back Again, N.Y. Times (Aug. 22, 2022), https://www.nytimes.com/2022/08/22/health/adolescents-mental-health-technology.html.
11. Monica Anderson, A Majority of Teens Have Experienced Some Form of Cyberbullying, Pew Rsch. Ctr. (Sept. 27, 2018), https://www.pewresearch.org/internet/2018/09/27/a-majority-of-teens-have-experienced-some-form-of- cyberbullying/.
12. Nino Gugushvili et al., Facebook use intensity and depressive symptoms: a moderated mediation model of problematic Facebook use, age, neuroticism, and extraversion at 3, BMC Psych. 10, 279 (2022), https://doi.org/10.1186/s40359-022-00990-7 (explaining that youth are particularly vulnerable because they “use social networking sites for construing their identity, developing a sense of belonging, and for comparison with others”).
13. Simon M. Wilksch et al., The relationship between social media use and disordered eating in young adolescents, 53 Int’l J. Eating Disorders 96–106 (2020), https://pubmed.ncbi.nlm.nih.gov/31797420/.

The Seattle complaint also notes public agency warnings about social media. The U.S. surgeon general report urges young people to “Be intentional about your use of social media, video games, and other technologies.” It offers some questions to guide tech use: “How much time are you spending online? Is it taking away from healthy offline activities, like exercising, seeing friends, reading, and sleeping? What content are you consuming, and how does it make you feel? Are you online because you want to be, or because you feel like you have to be?” (p. 15).

Protecting Youth Mental Health: The U.S. Surgeon General’s Advisory, U.S. Dep’t Health & Hum. Servs. (Dec. 7, 2021), https://www.hhs.gov/sites/default/files/surgeon-general-youth-mental-health-advisory.pdf.

Known Vulnerability

These articles from the Seattle complaint touch on vulnerability:

1. Betul Keles et al., A systematic review: the influence of social media on depression, anxiety and psychological distress in adolescents, Int’l J. Adolescence & Youth (202) 25:1, 79–93 (Mar. 3, 2019), https://www.researchgate.net/publication/331947590_A_systematic_review_the_influence_of_social_media_on_depression_anxiety_and_psychological_distress_in_adolescents/fulltext/5c94432345851506d7223822/A-systematic-review-the-influence-of-social-media-on-depression-anxiety-and-psychological-distress-in- adolescents.pdf.
2. Emily Vogels et al., Teens, Social Media and Technology 2022, Pew Rsch. Ctr. (Aug. 10, 2022), https://www.pewresearch.org/internet/2022/08/10/teens-social-media-and-technology-2022/.
3. Paul Lewis, ‘Our minds can be hijacked’: the tech insiders who fear a smartphone dystopia, Guardian (Oct. 6, 2017), https://www.theguardian.com/technology/2017/oct/05/smartphone-addiction-silicon-valley-dystopia.
4. Zara Abrams, Why young brains are especially vulnerable to social media, Am. Psych. Ass’n (Aug. 25, 2022), https://www.apa.org/news/apa/2022/social-media-children-teens.

Intent

Resources from the Seattle complaint demonstrating intent to market to children etc. and knowledge of harm:

1. Georgia Wells et al., Facebook Knows Instagram Is Toxic for Teen Girls, Company Documents Show; Its own in-depth research shows a significant teen mental-health issue that Facebook plays down in public, Wall St. J. (Sept. 14, 2021), https://www.wsj.com/articles/facebook-knows-instagram-is-toxic-for-teen-girls-company-documents-show-11631620739.
2. Georgia Wells & Jeff Horwitz, Facebook’s Effort to Attract Preteens Goes Beyond Instagram Kids, DocumentsShow; It has investigated how to engage young users in response to competition from Snapchat, TikTok; ‘Exploring playdates as a growth lever, Wall St. J. (Sept. 28, 2021), https://www.wsj.com/articles/facebook-instagram-kids-tweens-attract-11632849667.
3. Julian Morgans, The Secret Ways Social Media is Built for Addiction, Vice (May 17, 2017), https://www.vice.com/en/article/vv5jkb/the-secret-ways-social-media-is-built-for-addiction.
4. Von Tristan Harris, The Slot Machine in Your Pocket, Spiegel Int’l (July 27, 2016), https://www.spiegel.de/international/zeitgeist/smartphone-addiction-is-part-of-the-design-a-1104237.html.

Legal Technicalities

Public Nuisance

Public nuisance has roots in common law. It is different from mass torts or products liability claims that affect many individuals. It requires effect on the group or the whole, yet does not require that every single person is affected. Common law public nuisance was more focused on interference with a public right. Pollution for example would be ubiquitous in the air for example, while courts across the country split on opioid cases claiming public nuisance. One key point in public nuisance may concern control over the source of the harm. Defendants will allege that it is especially difficult to say where the harm arises. Plaintiffs argue it is in the design. But defendants will note that they do not control what individuals post and that parents or even teachers should oversee children’s social media use.

Products Liability

The plaintiffs in the multi-district case need to show that apps are products to fall within products liability law. Then, the plaintiffs would need to prove the products are defective, causation (the defect caused harm), and harm. The plaintiffs allege that the products are defective in that tech companies designed them to maximize screen time, which can lead to addiction, characterizing the design as a design flaw. Tech companies will likely respond they have taken steps to mitigate harms and to help parents police screen time. A failure to warn may be relevant as well: they are dangerous products and consumers may not have expected the items to be addictive or known the potential for widespread harm.

Content or Design?

Other concerns in both cases could be the degree to which the harms are caused by content rather than design.  Section 230 of the Communications Decency Act arguably shields some entities, like internet providers, when they publish other people’s content. For example, tech companies may argue that cyberbullying is not due to the medium of communication, but due to content. Such defenses may not work considering the evidence of aggressive marketing materials and knowledge of the dangers of the platforms. And plaintiffs in both cases argue the amount of screen time, the addictive qualities, etc. are the cause of the harms.

Free speech could enter the debate. There is an overarching societal conversation about free speech. We know there are appropriate limits and regulations, especially when children are involved. Many already assert that big tech stifles speech by curating conversations, creating their own rules about who sees what. A current lawsuit alleges government colluded with tech conspired to violate free speech when government agencies encouraged social media companies to take down posts conveying misinformation about COVID-19. It will be interesting to see if big tech characterizes itself as a platform for free speech and entertainment after taking the reins to block some political and other content during the pandemic.

In Gonzalez v. Google, a plaintiff blames Google’s pro-Isis content for the death of a person killed by Isis members in a 2015 Paris attack. The case targets algorithms that recommend content. That case will hash out limitations on the right to recommend content, but tech companies argue a win for the plaintiff could interfere with their right to weed out fraudulent content, and with the overall way the internet works based on algorithms. Many tech companies have commented on the case in support of Google and they point to the potential of a ruling against tech to limit overall speech and content.

Speech is not really the legal issue in the Seattle or the California multi-district case, but it will be interesting to see how free speech might infiltrate the cases and the public discourse about both cases. Will the blame shift from algorithms and reward features that cause addiction to the content itself?