In my last post responding to the Chamber of Progress campaign for broad liability protections for generative AI developers, I noted that lawmakers are tired of blanket immunity for Big Tech. If the current legislative landscape is any indication, we may finally be at the leading edge of genuine accountability for the myriad harms caused by social platforms operating under the protection of 90s-era immunity regimes.
Yesterday, New York Governor Kathy Hochul signed into law the SAFE for Kids Act, designed to prohibit “addictive” social media algorithms from targeting minors. The legislation treats social media as a consumer product with defective qualities that cause poor physical and mental health outcomes for young people, and which are designed to be addictive. The law defines and “addictive feed” as follows:
“Addictive feed” shall mean a website, online service, online application, or mobile application, or a portion thereof, in which multiple pieces of media generated or shared by users of a website, online service, online application, or mobile application, either concurrently or sequentially, are recommended, selected, or prioritized for display to a user based, in whole or in part, on information associated with the user or the user’s device…” [emphasis added]
The ironically named NetChoice came out swinging on X, calling the New York law an unconstitutional violation of the speech right—and of course they did. But even if Big Tech mounts that legal challenge, I wouldn’t bet on it succeeding. If the argument is that the user of a platform has a First Amendment right to access material which may otherwise be restricted by this new law, that claim should be mooted by the platform’s act of “recommending” or “prioritizing” material in the first place.
As users, we see what the algorithms determine we should see based on data that can be learned about us, and this limitation on user choice mocks the assertion that social platforms are “open” forums for “speech.” For this and other reasons, the state’s narrowly tailored law with the purpose of protecting minors from the harms caused by the addictive (i.e., defective) qualities of a social media product should not be found offensive to the First Amendment.
New York attorney Carrie Goldberg represents a wide range of clients who have been harmed through online platforms—from sexual harassment and assault to kids obtaining Sodium Nitrate on Amazon for the purpose of committing suicide. Referring to herself as a proud co-founder (“Mama”) of the New York SAFE for Kids Act, Goldberg has long argued that online platforms may be held accountable through product liability regimes. In a recent tweet, she notes that it was her failed lawsuit against Grindr on behalf of Matthew Herrick that paved the way for this new legislation:
Meanwhile on Capitol Hill, legislation with a similar focus may be ready to pass. The Kids Online Safety Act (KOSA) also proposes to alleviate platform addiction for minors and mandates changes in product design to mitigate a range of well-documented harms—from bullying and harassment to unwanted contact by adults seeking to exploit or abuse minors. Sponsored by Senator Blumenthal, KOSA has strong bipartisan and public support. Further, consistent with Goldberg’s “defective product” argument, U.S. Surgeon General Dr. Vivek Murthy proposes a warning label approach to social media, stating, “The mental health crisis among young people is an emergency…”
Frankly, I am not so sanguine on the premise that adults fare much better when it comes to social media use and self-mitigating the hazards of the “feed,” but passing new laws to address harms to children is a good place to start. Assuming KOSA does pass—and there are many other bills in motion—it may be time to declare that Big Tech’s free ride is finally over. Nobody is buying the “progress” and “free speech” rhetoric anymore, which is good because it was never true.
