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It's A Product, not a Platform. And It Can Be Sued [1]

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Date: 2023-01-10  

eatle Schools are taking an approach I think we will see more and more of:

"Defendants have maximized the time users—particularly youth—spend on their platforms by purposely designing, refining, and operating them to exploit the neurophysiology of the brain's reward systems to keep users coming back, coming back frequently, and staying on the respective platforms for as long as possible," the complaint said. "Youths are particularly susceptible to Defendants' manipulative conduct because their brains are not fully developed, and they consequently lack the same emotional maturity, impulse control, and psychological resiliency as other more mature users." The social networks profit from young users and "have blatantly violated" the Children's Online Privacy Protection Act requirement "to obtain 'verifiable parental consent' prior to collecting and using information about children under age 13," the lawsuit claimed. The defendants "turned a blind eye to younger users on their platforms by leaving users to self-report their age," and "intentionally market their platforms to youths and adolescents," the lawsuit said. Schools sue social networks, claim they “exploit neurophysiology” of kids’ brains | Ars Technica

Social media companies have hidden behind Section 230 for a decade or more to avoid accountability for their actions. Suits like this attempt to get around such unearned restrictions by focusing on the fact that the companies are offering a product. And just like any other product, it can cause harm. Causing that harm on the internet does not magically make it not harm. And running a company on the internet does not magically make your product not a product.

Except that often, because of Section 230, it does. Very often, judges have allowed internet-based companies to hide behind the argument that they are just showing content that others publish n hier sites, and thus Section 230 immunizes them for any harm that might come from such content. That is nonsense, of course. They are repacking that content into a product, deciding what content is seen and pushed in front of users in order to maximize engagement so as to drive their own advertising dollars higher.

The Seatle Schools anticipate this argument:

Seattle schools argue that defendants are not protected by Section 230 of the Communications Decency Act, which says providers of interactive computer services cannot be treated as the publisher or speaker of information provided by third parties. Seattle schools are not claiming that the social networks are publishers, the lawsuit said. "Plaintiff is not alleging Defendants are liable for what third parties have said on Defendants' platforms but, rather, for Defendants' own conduct," the lawsuit said. "As described above, Defendants affirmatively recommend and promote harmful content to youth, such as proanorexia and eating disorder content. Recommendation and promotion of damaging material is not a traditional editorial function and seeking to hold Defendants liable for these actions is not seeking to hold them liable as a publisher or speaker of third-party content." The companies are also "liable for their own actions designing and marketing their social media platforms in a way that causes harm," the complaint said.

They are creating a product, in other words, not merely showing you others content. It is like arguing that cocaine dealers shouldn't be held liable for selling cocaine cut with battery acid, because someone else grew the cocaine and made the battery acid. The schools may or may not be correct on the merits of the case, but they deserve to have those merits heard. It is long past time we start treating the products these companies create like products and not provide them with immunity that serves no purpose other than to let them profit at the expense of people and society.

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[1] Url: https://www.dailykos.com/stories/2023/1/10/2146334/-It-s-A-Product-not-a-Platform-And-It-Can-Be-Sued

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