y now you’ve almost certainly heard the news that Meta has settled with 52 state and local Attorneys General who had sued the company in some form or another over child safety on Meta’s platforms. The headlines are all covering the basics: the years-long case these states filed against Meta ends, and Meta pays somewhere between $12.7 billion and $18 billion, depending on which document you read (the consent judgment itself caps the total at $16,680,647,753.21; Meta’s press release rounds it up to “approximately $18 billion”). Also Meta will implement a bunch of changes to its platforms with the aim of improving child safety on those platforms. It will also “encourage” YouTube and TikTok to enable the same safety features even though (bizarrely), if YouTube and TikTok follow suit, then Meta will have to pay more.
You can read the details of the proposed settlement here.
Notably, the whole point of doing this as a “settlement” is that everyone involved knows full well that no government could mandate these feature changes without violating the First Amendment. But now that it’s in a “settlement” the courts may need to explore if these choices — which Meta could make freely on its own — suddenly have become a “state action,” implicating the First Amendment.
As with the various rulings against Meta over the last few months, people are cheering this on, without realizing the damage it will do. We’ll explore why this is problematic in a moment, but just to highlight that I’m not alone in thinking so, both EFF and Fight for the Future are warning how bad this settlement is. Here’s EFF:
Under this settlement, young users will now have less access to Meta products, and a lesser ability to exercise their rights to speak, access information and art and culture, associate and form communities, and play. The settlement also embeds age assurance into every product, mandating the collection of even more personal information from users of all ages; this enshrines Meta’s harmful surveillance into law, and it will compromise users’ privacy and anonymity while increasing their exposure to data breaches and government data requests. And the data minimization and security measures don’t keep states from using data collected under the agreement for other law enforcement purposes – which could include things like criminal investigations of abortions or gender-affirming care.
And here’s Fight’s emailed statement:
Big Tech does pose harm to our kids through its business practices and exploitation, but pushing for more censorship, age-gating, and surveillance of young people at the hands of the same Big Tech companies that have already harmed young people is not the answer. Online ID checks when implemented put vital information behind age-gates, stamp down teenagers’ right to speak, and expose all of us to even more of our data being collected, hacked, and leaked. Meta knows that managing this amount of personal information and enforcing these agegates will be messy and that’s why they are seeking to offload the burden to anyone but themselves, while being seen to comply by the public and lawmakers. Instead of actually damaging their exploitative business model, this result allows Meta to bring everyone else down with them, from app stores to other social media companies. We feared that these lawsuits would manufacture consent for invasive age verification and content controls and our fears have been proven correct. We will continue to oppose online ID checks everywhere and be on the watch for more censorship creeping into Meta’s platform.
We’ll get into the specifics of why this settlement is so bad, but first some important background. For a few decades now, when basically all Attorneys General would get together to threaten and/or sue tech companies, it was almost always over bullshit headline grabbing claims where the AGs either had no jurisdiction or ability to legally do anything. Sixteen years ago, we wrote one story about an account written by a CEO of a company who faced down dozens of state AGs who were way more concerned about the headlines they generated than actually making platforms safe.
It was similar to other stories that we’d heard, where no matter what companies did to explain to the AGs what steps they were taking to keep a platform safe the AGs would simply turn around and misrepresent what they were told, out of context, to make the platforms look worse and worse until they agreed to some sort of settlement. It happened with Craigslist. It happened with ISPs being forced to kick their users off at the behest of the recording industry. Even John Oliver has covered how grandstanding state Attorneys General will target just about anyone they want to shake down in some form or another.
That’s not to say that there aren’t righteous cases brought by Attorneys General, but there are so many examples of them being much more about getting headlines than actually making people safer. And the simple fact is that these efforts are so resource intensive, so expensive, and so draining that it’s no surprise that most companies end up “settling” by agreeing to do things that the government simply cannot force a company to do. But because it’s a “settlement” people act like it’s not the government doing it.
In this case, given some of the recent court decisions, it’s no surprise that Meta would strike some sort of settlement. As these cases continued, the headlines would only get worse for the company. And Meta deserves some bad headlines, but as I’ve discussed, many of the bad headlines in these cases involved lawyers and the media taking things way out of context. The classic case with Meta is that many of its efforts to study how to make its platforms safer were used against the company as proof that “they knew!” their platforms were unsafe!
The lesson for the rest of the tech industry is grim and unambiguous: never study whether your own platform is causing harm. The mere existence of the research will be turned into Exhibit A that “they knew,” both in the court of public opinion and in actual courts.
The other bit of background worth understanding here is that Meta has been desperately seeking a path to regulatory capture for quite some time now. It’s been practically begging for Congress to pass child safety legislation that only the largest companies (like itself) could comply with. Indeed, Meta has done this before. It went against the rest of the internet industry in embracing FOSTA, again to try to create a regulatory moat. So this shouldn’t be surprising.
Meta’s failed forays into the “metaverse” and AI have shown that it’s been pretty consistently losing the innovation race, and the government granting it a regulatory moat that smaller competitors can’t cross would be a godsend.
And it’s even better when it can be done in a way that looks like Meta “losing” a lawsuit.
So that’s what Meta gets here. They “settle” the lawsuit so the AGs and Meta haters can all claim that they’ve “protected the children.” Meta pays out over a decade — enough that it’s taking a $10 billion legal charge in Q3, which stings for a bit but will mostly be forgotten by next year. Meta can easily eat the cost. And then Meta agrees to implement a bunch of kid safety features, most of which we have no idea whether they actually protect any kids. Notably, a legislature could not have mandated most of these features without running straight into the First Amendment — but coming out of a settlement, they carry the imprimatur of law anyway (more on that in a moment), and the structure of the agreement makes it so that Meta has to actively encourage Google and TikTok to take identical steps, thereby setting in concrete what steps any platform will have to take to be considered following “best practices” and therefore acceptable to most of the country’s Attorneys General.
The specific features don’t even matter that much, but for the record:
- Time Limit: A default two-hour daily time limit that teens can only turn off with a parent’s permission. This limit is cumulative across Facebook and Instagram, and time spent scrolling on both apps counts toward the total, including if we detect that someone has multiple accounts.
- Night Mode: A default block from our apps between midnight and 6am. This means teens will not be able to post or view their Feed, Stories, Explore, or Reels, for example.
- School Mode: Notifications will be muted by default between 8 AM and 3 PM. During those hours, teens will no longer receive push notifications, except for direct messages and alerts about their account security or safety.
- Regular Prompts:
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