Recently, the California State Assembly passed a bill that would give parents the right to sue tech companies on behalf of their minor children who become addicted to social media. For parents to establish standing to sue, their child has to allege they want to reduce or eliminate screen time, but their preoccupation or obsession with social media prevents them from doing so. Businesses that remove features addictive to children and conduct regular audits of their practices would enjoy a safe harbor from litigation, at least in theory.
Business groups like TechNet are already cautioning that social media companies will simply shut down their platforms to minors altogether in the state, rather than face the heightened legal risk. Notably, video streaming and messaging apps are exempt. The bill now moves to the California State Senate, where it may face amendments. Legislators seem willing to reconsider allowing parental lawsuits and acknowledge the bill is a work in progress.
This proposal would severely impact social media platforms as well as businesses that advertise online. As it stands, this legislation seems like a windfall for the plaintiffs’ bar. However, as we have seen with other attempts to regulate digital technology (e.g. the Telephone Consumer Protection Act, the CAN-SPAM Act, and the Illinois Biometric Information Privacy Act), insurers may seek to limit or even exclude coverage for these claims.
Congress enacted the cyberstalking law in 2006, and broadened it in 2013. As amended, the statute makes it illegal to use “the mail, any interactive computer service or electronic communication service or … system …, or any other facility of interstate or foreign commerce” at least twice. The defendant must have acted with the requisite intent to “kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person,” and his actions either put the target “in reasonable fear of … death … or serious bodily injury,” or “cause, attempt to cause, or … be reasonably expected to cause substantial emotional distress.”
A federal appeals court recently upheld the statute, finding the law does not wade into protected free speech. Specifically, the court employed a narrow reading of the statute’s intent under the doctrine of “constitutional avoidance.” This doctrine gives ordinary meaning to the criminal definitions of such terms as “harassment” and “intimidation.” As such, the court found the statute survives constitutional challenges and thus affirmed the law student’s conviction.
According to the DOJ, a social media company engaged in a practice of using contact information from user accounts (i.e., email and phone number) to customize ads in users’ feeds without their consent. This same practice had been the subject of a previous administrative order from the Federal Trade Commission (“FTC”). The FTC had cited the company for “deceptive acts or practices” and concluded that the surreptitious use of this personal information for marketing purposes amounted to a misrepresentation.
Along with the payment of a $150 million fine to settle the DOJ inquiry, the company has agreed to new compliance measures, including regular audits of its privacy controls and the establishment of alternative means for users to authenticate and secure their accounts without providing a phone number.