On Meta’s Settlement With the States

Casey Newton, writing at Platformer Wednesday:

On Wednesday, whatever legal cover Meta’s Potemkin well-being teams were meant to provide fell to a settlement of up to $17.1 billion with 47 US states, the District of Columbia, and US territories… For the most part, the agreement requires Meta to honor terms that you may be surprised are not yet required by US law: limiting teens to a cumulative two hours across Facebook and Instagram per day, blocking access to most app features between midnight and 6 a.m., and muting push notifications — except for direct messages and account-security or safety alerts — from 8 a.m. to 3 p.m. on school days. (Also, the take-a-break prompts that saw such minimal adoption are now enabled by default, triggering after every 15 minutes.) In another reversal, Meta will also now hide like counts for teens by default. The move revives as a default an experiment known as “Project Daisy” that the company ran in January 2020 after research suggested that getting fewer likes on their posts was associated with worse mental health for some teen users, particularly girls… More interesting is an agreement to establish an “independent social media research foundation,” which Meta will share data with (from users who consent) with researchers to better understand how social media use affects well-being… But Meta’s legally mandated goodwill will only go so far. Frustrated that its rivals are not being punished on equal terms, the company has also threatened to undo some of its safety features sooner if YouTube and TikTok do not follow suit. The two-hour time limit and block on push notifications in the middle of the night will remain in place for only five years unless YouTube and TikTok adopt the same restrictions, in which case the duration will be extended to 10 years. Meta also says it will change its screen time restriction to one hour per app and expand “Night Mode” from six hours per night to nine. And it will pay the full $17.1 billion only if YouTube, TikTok and Snap also settle their cases and agree to product changes.

I, unlike Newton, am not surprised these requirements are not codified in U.S. law. In fact, I think it would be wholly inappropriate for them to be — laws governing how long people, including children and teenagers, use online platforms are fit for authoritarian governments like China. But, alas, these new rules are de facto U.S. law at least for the next five years. Meta can enforce the age restrictions through its own software that, according to Meta’s settlement with the states, must maintain a maximum false-positive rate of 14 percent for older teenagers. The states did not stipulate that Meta verify users’ ages through government identification, but if Meta chooses to use a third-party verification service, that service can have a maximum false-positive rate of only 10 percent. If I were to bet, Meta will do its own verification.

It is no surprise that I think Meta’s business model is unethical, but ultimately, it is not illegal to design an addictive online platform. Neither is it illegal to mislead consumers into thinking that platform is safe for children. It is not illegal under U.S. law to send teenagers push notifications during school hours. The states’ settlement with Meta centers around ethics after the landmark ruling in March, when a New Mexico jury ruled Meta’s platforms were marketed and designed unethically. The state’s consumer protection laws allow the attorney general to sue platforms violating a narrow set of rules, but that does not make such a violation illegal. That was a civil case.

I’m centering my discussion of this settlement around this point because I think it’s important. Yes, Meta should be held accountable for the disaster it has intentionally unleashed on teenagers across the globe. Yes, Meta should be forced to change its platform design through negotiation and threats. Yes, Meta should be forced to pay damages for the unmistakable impact it has had on teenagers’ mental health in America. But no, Meta’s behavior is not illegal. It is not the responsibility of the state to nanny what content people consume, outside of obviously illicit or damaging media. Teenagers are people, guaranteed their First Amendment rights to use the internet without government permission. To that end, I find the results of this settlement disappointing.

I again will reiterate that I am broadly in favor of forcing Meta to redo its platform design. Every consumer should be given options to opt out of the algorithm, reduce nuisance notifications, hide like counts, and opt out of targeted advertising. These rights should be codified in U.S. law under comprehensive federal privacy regulation, which is long overdue. Meta has an unmistakable chokehold over online communication in the United States, and that should give the government the right to let Americans manage their experience on Meta platforms. But what we should not be doing is circumventing the law and applying state rules to a small part of the population that cannot even vote to express their displeasure. (To be clear, I am not advocating giving teenagers suffrage.)

One more thing: I can’t believe the attorneys general were so naïve as to give Meta a get-out-of-jail-free card if its competitors don’t comply with the same rules. Meta loves to make things about its competitors, and it loves crying wolf to the public. Remember App Tracking Transparency, an iOS feature so clearly designed to benefit consumers? Meta ran full-page ads in The New York Times about how Apple was killing small businesses and Meta was fighting for the underdogs. It’s the same playbook five years later: Meta is thinking of the children — how altruistic! — but says it would be so harmful to the children if the competition didn’t also follow the same rules. Stop bringing the children into this! Meta’s actual intention is that all of the advertisers who cater to teenagers will take their business to YouTube or Snapchat, where their users aren’t subject to a curfew. The assault against ATT was not about small businesses, and this new push isn’t about the children.