On 24 October 2023, a coalition of 32 U.S. Attorney Generals filed a federal lawsuit against Meta, the parent company of Facebook, Instagram, and WhatsApp. This is the result of a U.S.-wide investigation announced in 2021. The lawsuit comes after years of empirical research revealing the harmful nature of social networks, and particularly the specific features of Meta’s social media platforms.[1] Relying on both substantial scientific research and internal sources revealed by whistleblower Frances Haugen in 2021, Attorney Generals develop elaborate arguments to allege that Meta exploited young users for profit and failed to comply with the federal Children’s Online Privacy Protection Act (COPPA).
The lawsuit sheds light on the company’s pursuit of user engagement and its impact on young users’ well-being. It focuses on Meta’s alleged misrepresentation of the safety of its platforms and its knowledge of the addictive and harmful nature of certain platforms features, especially for young users. It alleges that Meta’s practices are violating the COPPA and constitute unfair and deceptive acts under different U.S. States statutes. Attorney Generals are seeking injunctive relief and other remedies provided under State and federal laws.
Meta’s exploitation of young users for profit
In order to maximise profit, Meta’s business model focuses on monetizing user information and attention by increasing engagement on its platforms, so as to increase the effective delivery of targeted ads. According to the lawsuit, Meta sought to attract and retain young users on its Social Media Platforms, exploiting their psychological vulnerabilities. According to internal documents cited in the lawsuit, Meta went so far as to quantify the importance of its young users’ value to the company in terms of lifetime value, which is defined as the cumulative total profit expected by Meta from a user: “The lifetime value of a 13 y/o teen is roughly $270 per teen”
Relying on internal documents and communications, the lawsuit sets out Meta’s alleged efforts to increase the time spent on its Social Media Platforms by implementing features designed to capture users’ attention and keep them engaged on the Platforms. These features overwhelm dopamine sensitivity which exists in young users’ developing brains; according to the lawsuit, the effect of use-inducing mechanisms is cumulative because they act in concert, creating a feedback loop that is integral to Meta’s current business model. Such features are, inter alia, algorithmic recommendation and sequencing, public display and quantification of engagement metrics such as Likes, face and body image manipulation filters, disruptive audiovisual and haptic alerts, infinite scroll and autoplay formats, and the ephemeral presentation of social content.
For example, as regards algorithmic recommendation and sequencing, Meta’s Recommendation Algorithms display content to young users through a sequencing method referred to by psychologists as “variable reinforcement schedules” or “variable reward schedules” which tend manipulate young users’ dopamine sensitivity and lead them to addiction.
Regarding disruptive audiovisual and haptic alerts, Instagram delivers notifications to young users’ smartphones, which Meta knows increases the amount of time and the frequency with which young users interact with Instagram. These notifications are disruptive for all users but are especially intrusive and harmful for young users, who are particularly vulnerable to distraction and psychological manipulation. Internal company documents outline Meta’s strategy to pursue “Teen Growth” by “leveraging teens’ higher tolerance for notifications to push retention and engagement.” Meta knows that when more notifications are sent to users, user engagement increases.
The lawsuit alleges that, while Meta adopted so-called “time-management” tools, in reality, those tools cannot effectively counteract the overwhelming power of features like infinite scroll, autoplay, and other use-inducing features. For instance, the Daily Limit is considered to have been designed so that the user can easily dismiss the notification and return to using Instagram unimpeded.
Various harms are alleged: addiction, low self-esteem, eating disorders and body dysmorphia, depression, physical harms such as particularly lack of sleep, and dysphoria.
Finally, the lawsuit sets out Meta’s knowledge of the disparity between public-facing safety narrative and internal surveys and studies which top management of the company were aware of, but manifestly ignored.
Meta’s failure to comply with the applicable legal framework, including the COPPA
The COPPA protects the privacy of children under the age of 13 by requiring technology companies to obtain informed and verifiable consent from parents prior to collecting the personal information of children online. The COPPA defines the term “verifiable parental consent” as “any reasonable effort […] to ensure that a parent of a child receives notice of the operator’s personal information collection, use, and disclosure practices, and authorizes” it “before that information is collected from that child” (Section 9 of the Act).
The lawsuit accuses Meta of failing to comply with the COPPA by unlawfully collecting the personal data of users under the age of 13 without obtaining verifiable parental consent, both on Instagram and Facebook, with details on numerous instances of Meta’s knowledge of underage users on its platforms and the company’s failure to take action to exclude (or obtain consent from) these users. The lawsuit sets out in detail that Meta does not try to obtain verifiable parental consent, while its own records reveal that it has actual knowledge that Instagram and Facebook target and successfully enrol children as users.
Further, based on Meta’s conduct described above, each State alleges, under their respective statutes, that Meta engaged in deceptive and unfair practices by misrepresenting the safety and addictiveness of its Social Media Platforms, targeting young users, and failing to disclose harmful content and manipulative features. For instance, Meta’s conduct is alleged to constitute consumer fraud acts in States such as Arizona, New Jersey, and Illinois; and/or unfair acts in States such as Nebraska, and Hawaii; or even unfair competition such as for the State of California, under Section 17200 of the Californian Business and Professions Code.
What happens next?
This procedure relies on numerous empirical studies, particularly in the field of psychology and more broadly in social sciences, which will continue to feed into the debate on the protection of minors online (and how regulation can best protect them against online harms). The case also raises interesting questions on the reliability and practicality of age verification. Among the different methods, which include parental consent, self-declaration, biometrics, and digital ID, none of them seem to be suitable at the moment. Schematically, the more secure the method, the less practicable it is. Interestingly, the European Data Protection Board recently expressed doubts regarding the effectiveness of the age verification measures put in place by TikTok, Meta’s competitor, on the basis of the GDPR’s requirement of data protection by design (Art. 25), finding that the age gate deployed by TikTok to prevent child users under the age of 13 from accessing the platform could be easily circumvented.
European lawmakers seem willing to tackle the issue, through regulation rather than litigation. On 25 October 2023, European Parliament’s IMCO urged the EC to close existing gaps and present new legislation to tackle addictive design features of certain digital services, noting that the DSA, the Data Act, and upcoming AI Act are not enough to regulate the issue of addictive design. Theses legal instruments already contain provisions against dark patterns, understood as manipulative practices steering consumers into potentially harmful decisions, preventing online platforms to distort or impair the autonomy, decision-making, or choice of users.
The European Commission is currently conducting an evaluation on the New Consumer Agenda, analysing whether additional action is needed to ensure an equal level of fairness online and offline; this includes the specific needs of certain consumer groups, including minors. The final version is due in the second quarter of 2024.
[1] See, e.g., cited at ¶508 of the lawsuit: Jonathan Haidt & Jean Twenge, Social Media and Mental Health: A Collaborative Review (unpublished manuscript, on file with New York University), available at tinyurl.com/SocialMediaMentalHealthReview (last visited Dec. 18, 2023); Jacqueline Nesi et al., Handbook of Adolescent Digital Media Use and Mental Health, Cambridge Univ. Press (2022).
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