October 2024

Transforming Access: The FCC’s New Telecommunication Requirements May Enhance Accessibility in Criminal Detention Centers

October 29, 2024
Disability Law, FCC, Human Rights Law, Telecommunication

 

Peyton Soethout, MJLST Staffer

Continued technological advancements have made it easier for people to communicate with their loved ones worldwide. Criminal detention centers have utilized the rise of this digital age to make the inmate communication process easier for their staff.[1] Although these practices may simplify security and administrative protocols, they also negatively impact inmates’ abilities to effectively communicate with loved ones through traditional mail as oftentimes inmates “receive letters with missing pages and blurry images.”[2] These issues—combined with the COVID-19 pandemic increasing security measures, and the prevalence and popularity of telephones—have caused decreases in written communications between incarcerated and free people and subsequent increases in telecommunication.[3]

 

While traditional mail has become less reliable, criminal detention centers’ use of video and audio telecommunications is not without issue. Challenges with telecommunication technology are especially difficult for inmates who have communication disabilities, which include deafness, hard of hearing, blindness, low vision, deafblindness, speech disabilities, or other disabilities that affect communication.[4] Despite technology advancing outside detention facilities, many jails and prisons primarily rely on out-of-date devices for their telecommunication needs.[5] The reliance on out-of-date technology greatly impacts inmates with communication disabilities because they heavily rely on technology to communicate with others.[6]

Congress has attempted to mitigate these challenges through various legislation. Together, the Rehabilitation Act of 1973 and the American Disabilities Act (“ADA”) require prison and jail officers to “avoid discrimination; individually accommodate disability; and maximize integration of prisoners with disabilities with respect to programs, service, and activities.”[7] These statutes provided the first step in equal communication opportunities for all inmates, but they left two questions: (1) who decides which inmates receive communication accommodations; and (2) what specific technologies are required for this communication access.[8]

The Federal Communications Commission (“FCC”) made efforts to address prison telecommunication issues but their attempts were ultimately quashed in 2017 as courts found the FCC only had authority to address interstate calls, not intrastate calls.[9] In 2022, Congress passed the Martha Wright-Reed Just and Reasonable Communications Act (“Martha Wright-Reed Act”) which amended the Communications Act of 1934. It established “any Federal, State, or local law to require telephone service or advanced communications services at a State or local prison, jail, or detention facility.”[10] Because the FCC determined that the Martha Wright-Reed Act “significantly expanded the [FCC’s] jurisdiction over incarcerated people’s communications services,” it promulgated new accessibility requirements for inmate telecommunications.[11]

The new FCC rule requires detention centers to provide text telephones (“TTY”) and telecommunication relay services (“TRS”) to inmates with communication disabilities.[12] TTYs—defined as “machine[s] that [employ] graphic communication in the transmission of coded signals through a wire or radio communication system”—have long been used in jails as a device to assist incarcerated people with communication disabilities, but they have never been explicitly required on a federal level.[13]

Unlike TTYs, the use of TRSs is much more rare. The FCC defines TRSs as “[t]elephone transmission services that provide the ability […] to engage in communication by wire or radio […], in a manner that is functionally equivalent to the ability of a hearing individual who does not have a speech disability.”[14] The new FCC rule also gives examples of certain TRSs such as speech-to-speech relay services (“STS”), and video relay services (“VRS”).[15] Overall, these technologies can significantly decrease challenges presented by general telecommunication devices.[16]

While this rule does an adequate job of addressing what technologies are required for inmate telecommunication access, it does little to address the remaining question: who decides which inmates require telecommunication accommodations. The rule specifies that TTYs and TRSs are for incarcerated people who individually register for communication accommodations, and the rule places registration responsibility primarily on the inmates.[17] Given the historic trend of jail and prison administration, detention facilities’ staff will likely need to organize the registration process and inform inmates of its existence.[18] In the rule proposal, the FCC quotes formerly incarcerated person Kim Thomas who notes, “[i]ncarcerated people with disabilities that impact their ability to communicate continually experience barriers to access because prison administrators fail to understand their communication needs.”[19]

The FCC acknowledges that detention center administrators may lack the knowledge necessary to identify communication needs, and this will likely continue negatively impacting inmates with communication disabilities. Specifically, inmates with communication disabilities may be unaware of the technologies available to them. But even with potential challenges, the FCC’s promulgation of these new requirements is a significant step in the right direction for the future of telecommunication access for inmates with communication disabilities.

 

 

Notes

[1] Nazish Dholakia, The FCC Is Capping Outrageous Prison Phone Rates, but Companies Are Still Price Gouging, Vera (Sept. 4, 2024), https://www.vera.org/news/the-fcc-is-capping-outrageous-prison-phone-rates-but-companies-are-still-price-gouging#:~:text=The (“Corrections departments say they have adopted mail scanning to obtain greater control over materials entering their facilities and ensure safety.”).

[2] Id.

[3] Id.

[4] Tessa Bialek & Margo Schlanger, Effective Communication with Deaf, Hard of Hearing, Blind, and Low Vision Incarcerated People, 26 J. Gender Race & Just. 133, 138 (2023).

[5] Id. (referencing Heyer v. U.S. Bureau of Prisons, 849 F.3d 202 (4th Cir. 2017)).

[6] Id.

[7] Margo Schlanger, Prisoners with Disabilities, in Reforming Criminal Justice: Punishment, Incarceration, and Release 301 (E. Luna ed., 2017).

[8] See Farina Mendelson, A Silent Struggle: Constitutional Violations Against the Hearing Impaired in New York State Prisons, 20 CUNY L. Rev. 559, 564–571 (2017) (noting that the New York Department of Corrections had default responsibility to determine which inmates have disabilities as the ADA did not provide such information); Wanda Bertram, FCC Votes to Slash Prison and Jail Calling Rates and Ban Corporate Kickbacks, Prison Policy Initiative (July 18, 2024), https://www.prisonpolicy.org/blog/2024/07/18/fcc-vote/ (claiming that the July 2024 FCC regulations addressed required accessibility technologies for the first time).

[9] Jon Brodkin, Prison Phone Call Fees Are Out of Control. The FCC Can Finally Rein Them In, Wired (July 19, 2024, 8:30 AM), https://www.wired.com/story/prison-phone-call-fees-fcc-caps/.

[10] Martha Wright-Reed Just and Reasonable Communications Act of 2022, Pub. L. No. 117–338, 136 Stat 6156.

[11] Implementation of the Martha Wright-Reed Act; Rates for Interstate Inmate Calling Services, 89 FR 77244, 77244 [hereinafter FCC Notice and Comment]; Press Release, Fed. Commc’n Comm’n, FCC Caps Exorbitant Phone & Video Call Rates for Incarcerated Persons & Their Families: The Martha Wright-Reed Act Empowered the FCC to Close Gaps in the Long-Fought- For Protections Against Predatory Rates (July 18, 2024).

[12] 47 C.F.R. § 64.6040 (2024).

[13] 47 C.F.R. § 64.601(a)(44) (2024); Bialek & Schlanger, supra note 4 at 142. Note that Bialek & Schlanger use “TTY” to refer to teletypewriters which is one example of a TTY under the FCC’s rule. Oftentimes, teletypewriters and text telephones are used interchangeably. For the purposes of this blog post, TTY will be used as defined in 47 C.F.R. § 64.601.

[14] 47 C.F.R. § 64.601(a)(43) (2024).

[15] See 47 C.F.R. § 64.601(a)(41) (2024), which defines STS as a TRS “that allows individuals with speech disabilities to communicate with voice telephone users through the use of specially trained Communication Assistants who understand the speech patterns of persons with speech disabilities and can repeat the words spoken by that person;” and 47 C.F.R. § 64.601(a)(51) (2024), which defines VRS as “a TRS “that allows people with hearing or speech disabilities who use sign language to communicate with voice telephone users through video equipment.”

[16] See Fed. Commc’n Comm’n, Frequently Asked Questions on Telecommunications Relay Services (TRS), Fed. Commc’n Comm’n, (Mar. 1998), https://transition.fcc.gov/Bureaus/Common_Carrier/FAQ/faq_trs.html (explaining the benefits of TTY and TRS access).

[17] See e.g., 47 C.F.R. § 64.6040(c)(4) (2024) (requiring individual registration); 47 C.F.R. § 64.611 (2024) (explaining the registration process).

[18] See Mendelson, supra note 8, at 564 (“[T]he Department is responsible for identifying an inmate’s hearing impairment.”).

[19] FCC Notice and Comment, supra note 11, at 77248–77249 (emphasis added).

Persistent Yet Questionable: FTC’s Journey Regulating Negative Option Marketing in Online Subscription Services

October 17, 2024
Digital Marketing, Legal Ethics, Marketing, Regulatory

Su Young Lee, MJLST Staffer

Online subscription services are increasingly prevalent in society – prevalent enough to catch the attention of the Federal Trade Commission (FTC). On June 17, 2024, the FTC filed a lawsuit against Adobe Inc for the violation of the FTC Act Section 5 and Section 4 of the Restore Online Shoppers’ Confidence Act (ROSCA).[i] These two laws introduce a general legal framework governing online commerce and negative option marketing.[ii] The ROSCA Section 4 prohibits online sellers from conducting a transaction through “negative option feature” unless the seller “clearly and conspicuously discloses all material terms of the transaction” to the consumer.[iii] While the ROSCA is a distinctive law to the FTC Act, the violation of the ROSCA Section 4 is treated as an “unfair or deceptive acts or practices” so constitutes the violation of the FTC Act Section 5.[iv] Furthermore, as it is treated as an “unfair or deceptive acts or practices,”[v] the violation of the ROSCA Section 4 also triggers the FTC Act Section 19, which allows the FTC to “commence a civil action” against the one who violated subjected law.[vi]

In this case, the FTC argues that Adobe did not “clearly and conspicuously” disclose the early cancellation fee during the subscription process, which, therefore, “constitutes an unfair or deceptive act or practice in or affecting commerce.”[vii] Last year, the FTC filed a similar complaint against Amazon concerning the cancellation of Prime memberships; the case is still ongoing.[viii]

The FTC’s action against online subscription policies, specifically their marketing strategy called ‘negative option marketing,’ or ‘dark pattern,’[ix] are not new. Negative option marketing is “a term or condition under which the seller may interpret a consumer’s silence or failure to take affirmative action to reject a good or service or to cancel the agreement as acceptance or continuing acceptance of the offer.”[x] Examples include automatic renewals, continuity plans, free-to-pay or fee-to-pay conversions, and prenotification plans.[xi] The FTC reports negative option marketing to be a “persistent source of consumer harm” by “saddling shoppers with recurring payments for products and services they did not intend to purchase or did not want to continue to purchase.”[xii]

The FTC has pursued action against negative option marketing, especially its use in online subscription services, in recent years. As with Amazon and Adobe, using ROSCA and/or the FTC Act as a legal basis, the FTC has sued numerous online commercial companies with subscription services such as Wealthpress and MoviePass.[xiii] They also published a staff report and policy statement warning of the danger of negative option marketing.[xiv] On April 24, 2023, the FTC even exercised their rulemaking authority and proposed a rule amending 16 C.F.R. part 425 to specifically target the regulation of negative option marketing.[xv] While the proposed rule does not limit the type of applicable media,[xvi] the FTC added the definition of the terms that particularly apply to online subscription services, such as “simple cancellation” and “annual reminders.”[xvii]

Despite their persistence, the effectiveness of the FTC’s efforts is still in question. First, not everyone welcomes the proposed rule. Former Commissioner Christine S. Wilson states that the proposed rule’s scope of negative option marketing is overly broad because it applies to any misrepresentations, even to those irrelevant to negative option terms or policies.[xviii] She also points out that the proposed rule gives the FTC the authority to seek civil penalties under the FTC Act Section 5, which the Supreme Court limited in AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n.[xix] Commissioner Wilson expresses concern that such overreach would put marketers at risk of being liable for monetary penalties even when they fully disclose negative option terms.[xx]

Luckily for those not fond of the proposed rule, the FTC has not yet prevailed in putting the regulation into effect. Even if it becomes effective one day, this new rule will have to survive the unclarified yet heightened standard the recent overruling of Chevron created. The Section 6(a) of the FTC Act, governing the agency’s rulemaking authority, grants the FTC to make a rule that addresses “unfair or deceptive acts or practices.”[xxi] The proposed rule manifests its relation to such authority, as many of its provisions trigger the violation of the FTC Act Section 5, which states that “unfair or deceptive acts or practices” are unlawful.[xxii] On the other hand, no one is sure at this moment whether such manifestations are the sufficient address of ‘unfair or deceptive acts or practices’ under the new rulemaking standard.

No matter where the proposed rule currently lies, as the ongoing lawsuits against Adobe and Amazon reflect, it seems like the FTC has not given up on regulating negative option marketing within online subscription services. If the current proposed rule does not end up being effective and fails to become the FTC’s resolution, could lawsuits be their alternate pathway? Based on their past lawsuits against Wealthpress and MoviePass, which ended with the agreement in the proposed court order (“Agreement”) and settlement, it may be reasonable to anticipate that the ongoing cases will reach a similar outcome.[xxiii] The settlement and Agreement, which involved specific restriction and monetary agreement,[xxiv] from Wealthpress and MoviePass cases focused on refraining from the alleged type of conduct of an alleged company. These could discourage alleged tech companies like Wealthpress and MoviePass from using the alleged type of negative option marketing in their future subscription policies. However, since neither settlement nor Agreement has precedential authority, it is questionable whether the history of lawsuits filled with settlements and Agreement could prevent other tech companies from applying similar negative option marketing to their subscription policies.

 

Notes

[i] Complaint for Permanent Injunction, Monetary Judgment, Civil Penalty Judgment, and Other Relief at 25, United States v. Adobe Inc., No. 5:24-cv-03630-BLF (N.D. Cal. June 17, 2024).

[ii] Id. at ¶ 10.

[iii] 15 U.S.C. § 8403.

[iv] 15 U.S.C. 45(a)(1) (“Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”) (emphasis added). See also Complaint for Permanent Injunction, supra note i, at ¶ 22.

[v] 15 U.S.C. § 8404(a).

[vi]  15 U.S.C. § 57(b)(1) (“If any person, partnership, or corporation violates any rule under this subchapter respecting unfair or deceptive acts or practices…then the Commission may commence a civil action against such person.”) (emphasis added).

[vii] Complaint for Permanent Injunction, supra note i, at ¶ 121-25.

[viii] See Fed. Trade Comm’n v. Amazon.com, Inc., No. 2:23-CV-00932-JHC, 2024 WL 2723812 at 1 (W.D. Wash. May 28, 2024) (showing that the FTC is using the same legal basis).

[ix] FTC uses two terms (negative option marketing and dark pattern) interchangebly. See FED. TRADE COMM’N, Bringing Dark Patterns to Light : Staff Report (2022).

[x] FED. TRADE COMM’N, ENFORCEMENT POLICY STATEMENT REGARDING NEGATIVE OPTION MARKETING 60822 (2021).

[xi] Id.

[xii] Id. at 60823.

[xiii] See FTC Suit Requires Investment Advice Company WealthPress to Pay $1.7 Million for Deceiving Consumers, Fed. Trade Comm’n (Jan. 13, 2023), https://www.ftc.gov/news-events/news/press-releases/2023/01/ftc-suit-requires-investment-advice-company-wealthpress-pay-17-million-deceiving-consumers and Operators of MoviePass Subscription Service Agree to Settle FTC Allegations that They Limited Usage, Failed to Secure User Data Fed. Trade Comm’n (June. 7, 2021), https://www.ftc.gov/news-events/news/press-releases/2021/06/operators-moviepass-subscription-service-agree-settle-ftc-allegations-they-limited-usage-failed.

[xiv] See FED. TRADE COMM’N, Bringing Dark Patterns to Light, supra note ix and FED. TRADE COMM’N, ENFORCEMENT POLICY STATEMENT, supra note x.

[xv] Negative Option Rule, 88 FR 24716 (proposed April 24, 2023) (to be codified at 16 C.F.R. pt. 425)

[xvi] Id. at 24734 (“This Rule contains requirements related to any form of negative option plan in any media, including, but not limited to, the internet, telephone, inprint, and in-person transactions.”).

[xvii] Id.

[xviii] Christine S. Wilson, Dissenting Statement of Commissioner Christine S. Wilson, Notice of Proposed Rulemaking, Negative Option Rule 2 (Sept. 2021), https://www.ftc.gov/system/files/ftc_gov/pdf/p064202_commissioner_wilson_dissent_negative_option_rule_finalrevd_0.pdf.

[xix] Id. See also AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 593 U.S. 67, 141 S. Ct. 1341, 209 L. Ed. 2d 361 (2021) (finding that the FTC cannot seek monetary relief based on the FTC § 13(b), which triggers permanent injunction when the § 5 is found to be violated)

[xx] Christine S. Wilson, Dissenting Statement, supra note xviii, at 2.

[xxi] 15 U.S.C. § 46(g). See also A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement, and Rulemaking Authority, Fed. Trade Comm’n (May, 2021), https://www.ftc.gov/about-ftc/mission/enforcement-authority.

[xxii] 15 U.S.C. 45(a)(1). E.g. Negative Option Rule, 88 FR at 24735 (“In connection with promoting or offering for sale any good or service with a negative option feature, it is a violation of this Rule and an unfair or deceptive act or practice in violation of Section 5 of the FTC Act.”).

[xxiii] supra note xiii.

[xxiv] Id.

Enriching and Undermining Justice: The Risks of Zoom Court

October 15, 2024
Discrimination, Internet, Legal Ethics, Litigation, New Technology

Matthew Prager, MJLST Staffer

In the spring of 2022, the United States shut down public spaces in response to the COVID-19 pandemic. The court system did not escape this process, seeing all jury trials paused in March 2022.[1] In this rapidly changing environment, courts scrambled to adjust using a slew of modern telecommunication and video conferencing systems to resume the various aspects of the courtroom system in the virtual world. Despite this radical upheaval to traditional courtroom structure, this new form of court appears here to stay.[2]

Much has been written about the benefits of telecommunication services like Zoom and similar software to the courtroom system.[3]  However, while Zoom court has been a boon to many, Zoom-style virtual court appearances also present legal challenges.[4] Some of these problems affect all courtroom participants, while others disproportionally affect highly vulnerable individuals’ ability to participate in the legal system.

Telecommunications, like all forms of technology, is vulnerable to malfunctions and ‘glitches’, and these glitches can have significant disadvantage on a party’s engagement with the legal system. In the most direct sense, glitches– be they video malfunction, audio or microphone failure, or unstable internet connections–can limit a party’s ability to hear and be heard by their attorneys, opposing parties or judge, ultimately compromising their legitimate participation in the legal process.[5]

But these glitches can have effects beyond affecting direct communications. One study found participants evaluated individuals suffering from connection issues as less likable.[6] Another study using mock jurors, found those shown a video on a broken VCR recommend higher prison terms than a group of mock jurors provided with a functional VCR.[7] In effect, technology can act as a third party in a courtroom, and when that third party misbehaves, frustrations can unjustly prejudice a party with deleterious consequences.

Even absent glitches, observing a person through a screen can have a negative impact on how that person is perceived.[8] Researchers have noted this issue even before the pandemic. Online bail hearings conducted by closed-circuit camera led to significantly higher bond amounts than those conducted in person.[9] Simply adjusting the camera angle can alter the perception of a witness in the eyes of the observer.[10]

These issues represent a universal problem for any party in the legal system, but they are especially impactful on the elderly population.[11] Senior citizens often lacks digital literacy with modern and emerging technologies, and may even find their first experience with these telecommunications systems is in a courtroom hearing– that is if they even have access to the necessary technology.[12] These issues can have extreme consequences, with one case of an elderly defendant violating their probation because they failed to navigate a faulty Zoom link.[13]  The elderly are especially vulnerable, as issues with technical literacy can be compounded by sensory difficulties. One party with bad eyesight found requiring communication through a screen functionally deprived him of any communication at all.[14]

While there has been some effort to return to the in-person court experience, the benefits of virtual trials are too significant to ignore.[15] Virtual court minimizes transportation costs, allows vulnerable parties to engage in the legal system from the safety and familiarity of their own home and simplifies the logistical tail of the courtroom process. These benefits are indisputable for many participants in the legal system. But these benefits are accompanied by drawbacks, and practicalities aside, the adverse and disproportionate impact on senior citizens in virtual courtrooms should be seen as a problem to solve and not simply endure.

Notes

[1] Debra Cassens Weiss, A slew of federal and state courts suspend trials or close for coronavirus threat, ABA JOURNAL (March 18, 2020) (https://www.abajournal.com/news/article/a-slew-of-federal-and-state-courts-jump-on-the-bandwagon-suspending-trials-for-coronavirus-threat)

[2] How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations, PEW, December 1, 2021 (https://www.pewtrusts.org/en/research-and-analysis/reports/2021/12/how-courts-embraced-technology-met-the-pandemic-challenge-and-revolutionized-their-operations).

[3] See Amy Petkovsek, A Virtual Path to Justice: Paving Smoother Roads to Courtroom Access, ABA (June 3, 2024) (https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/technology-and-the-law/a-virtual-path-to-justice) (finding that Zoom court: minimizes transportation costs for low-income, disabled or remote parties; allows parties to participate in court from a safe or trusted environment; minimizes disruptions for children who would otherwise miss entire days of school; protects undocumented individuals from the risk of deportation; diminishes courtroom reschedulings from parties lacking access to childcare or transportation and allows immune-compromised and other high health-risk parties to engage in the legal process without exposure to transmittable illnesses).

[4] Daniel Gielchinsky, Returning to Court in a Post-COVID Era: The Pros and Cons of a Virtual Court System, LAW.com (https://www.law.com/dailybusinessreview/2024/03/15/returning-to-court-in-a-post-covid-era-the-pros-and-cons-of-a-virtual-court-system/)

[5] Benefits & Disadvantages of Zoom Court Hearings, APPEL & MORSE, (https://www.appelmorse.com/blog/2020/july/benefits-disadvantages-of-zoom-court-hearings/) (last visited Oct. 7, 2024).

[6] Angela Chang, Zoom Trials as the New Normal: A Cautionary Tale, U. CHI. L. REV. (https://lawreview.uchicago.edu/online-archive/zoom-trials-new-normal-cautionary-tale) (“Participants in that study perceived their conversation partners as less friendly, less active and less cheerful when there were transmission delays. . . .compared to conversations without delays.”).

[7] Id.

[8]  Id. “Screen” interactions are remembered less vividly and obscure important nonverbal social cues.

[9] Id.

[10] Shannon Havener, Effects of Videoconferencing on Perception in the Courtroom (2014) (Ph.D. dissertation, Arizona State University).

[11] Virtual Justice? A National Study Analyzing the Transition to Remote Criminal Court, STANFORD CRIMINAL JUSTICE CENTER, Aug. 2021, at 78.

[12] Id. at 79 (describing how some parties lack access to phones, Wi-Fi or any methods of electronic communication).

[13] Ivan Villegas, Elderly Accused Violates Probation, VANGUARD NEWS GROUP (October 21, 2022) (https://davisvanguard.org/2022/10/elderly-accused-violates-probation-zoom-problems-defense-claims/)

[14] John Seasly, Challenges arise as the courtroom goes virtual, Injustice Watch (April 22, 2020) (https://www.injusticewatch.org/judges/court-administration/2020/challenges-arise-as-the-courtroom-goes-virtual/)

[15] Kara Berg, Leading Michigan judges call for return to in-person court proceedings (Oct. 2, 2024, 9:36:00 PM), (https://detroitnews.com/story/news/local/michigan/2024/10/02/leading-michigan-judges-call-for-return-to-in-person-court-proceedings/75484358007/#:~:text=Courts%20began%20heavily%20using%20Zoom,is%20determined%20by%20individual%20judges).

The New Reefer Madness? New Laws Look to Regulate Hemp Products

October 11, 2024
Drug Policy, Food and Drug Law, Regulatory

Violet Butler, MJLST Staffer

In 2018, the federal government took a major step in shifting its policy towards the criminalization of marijuana. Included in the 2018 Farm Bill was a provision that legalized some hemp-derivative products, in particular CBD products with a low-level of THC.[1] While this was touted by the industry and activists as a major step forward, the move to increase regulations on these hemp products have recently gained steam.

But what exactly was legalized by the federal government? The 2018 Farm Bill legalized hemp and hemp derived products (including CBD) that contain no more than 0.3% THC.[2] It should be noted that most cannabis products are consumed for some form of intoxication[3] and, suffice it to say, intoxication does not arise from 0.3% THC. The 2018 Farm Bill legalized a very small subsection of cannabis products serving a limited range of uses. Under the law, if a product contains more than 0.3% THC it is legally classified as marijuana and is still illegal under the Controlled Substances Act. So, if these new products cannot be used as intoxicants, why is there a push for more regulations?

A reason for the push for further regulations gaining traction is the concern over synthetically produced cannabinoids. A report from the National Academy of Sciences, Engineering, and Medicine recently published a report urging the federal government to redefine what “hemp” means. This is in an effort to ban semi-synthetic cannabinoids derived from legal hemp products as these cannabinoids can mirror the intoxicating effects of marijuana.[4] By clamping down on these semi-synthetic products, the legal line between hemp, CBD, and marijuana can be more properly maintained.

Different states are taking different approaches to the new regulations on hemp products. One camp of lawmakers want to go back to the old regime where any miniscule trace of THC was illegal. This “total ban” approach is presently seen in new legislation passed in Arkansas. Arkansas’ Act 629 bans the “production and sale of products containing Delta 8, Delta 9 and Delta 10 and other THC isomers inside the state of Arkansas” in any capacity.[5] Currently on appeal in the Eighth Circuit, the act has been subject to a lawsuit from hemp companies claiming the state law is preempted by the 2018 Farm Bill.[6] Arkansas is not the only state to take a total ban approach. Missouri’s governor Mike Parsons recently signed an executive order banning all consumables containing “psychoactive cannabis products”—or hemp products containing even trace amounts of THC—outside of the state’s already regulated cannabis market.[7] While this is not as broad in scope as Arkansas’ ban, the wide-reaching ban restricts the sale of most non-marijuana cannabis products in the state.

However, some states have taken a different approach to regulating hemp products, particularly in its distribution. New Jersey recently banned any amount of THC from being sold to a person under the age of 21.[8] California governor Gavin Newsom took a similar approach, signing an emergency ban on all hemp products containing THC and restricting the sale of all other hemp products to the 21+ market.[9] Even the federal government might be looking to increase the regulations on hemp products. Senator Ron Wyden recently introduced a bill that would raise the age at which someone could buy hemp products to 21 and set more federal safety standards on the industry.[10]

So, why is there a push to change the laws around hemp now? It could come down to perceived health risks and a rise in hospitalizations. A study from the Nationwide Children’s Hospital found that there were over 3,000 calls to poison controls related to THC, including the those found in small doses of legal hemp products.[11] Although only about 16% of these calls resulted in hospitalizations, roughly half of admissions were for children under 6-years-old.[12] California Governor Newsom directly cited hospitalizations as one the principal reasons he signed his emergency order.[13]

People seem to be worried about the hemp products currently on the market, including CBD, but should they be? The jury is still out on the health effects of CBD. A report from the World Health Organization in 2018 said that CBD had a “good safety profile” and reported no evidence of detrimental effects from recreational consumption of pure CBD.[14] However, the AAMC notes that CBD is understudied and there could be adverse interactions if CBD is taken with other medications.[15]

Legislators and policy-makers need to be able to ensure the safety and well-being of their citizens without creating unnecessary barriers for a new and growing industry. One of the barriers that states are facing is— maybe ironically—the 2018 Farm Bill. The bill opened the door for hemp products that met the THC standards, and these state laws are running into friction with the federal law. While states are allowed (and expected) to regulate the hemp industry under the 2018 Farm Bill, the move by many states to put heavier restrictions on the amount of THC allowed in hemp products seems to be in conflict with federal law. The lawsuits from hemp producers so far have all revolved around the idea that these state regulations, which are more restrictive than the 2018 Farm Bill, are preempted by the federal legislation.[16] Under Article VI of the Constitution, federal laws are the “supreme law of the land” so the Farm Bill must preempt state law in some way, but the exact way it does so is unclear.[17] There are two different ideas on how the Farm Bill preempts state law. The first idea is that the hemp regulations laid out in the federal law are the most stringent that states can regulate. This is the interpretation that hemp producers prefer, and the theory that they are suing under. The second idea, the option preferred by states that are looking to increase regulations, is that the Farm Bill set the outer limit for regulations. In other words, states are free to increase the regulations on the industry, but the federal law provides a national baseline if states do not come up with their own regulation.

Court rulings on this issue may settle the debate, but there is always a risk of a circuit split forming as different Courts of Appeal hear and decide on different lawsuits. To clear confusion once and for all, the federal government could clarify the scope of regulatory power with new legislation, or the Supreme Court could decide the issue in its upcoming term. But, until then, the legal challenges are likely to keep mounting and leave the nascent hemp industry in lingo.

 

Notes

[1] Dennis Romero, Hemp Industry Expected to Blossom Under New Farm Bill, NBC News (Dec. 17, 2018, 4:02 PM), https://www.nbcnews.com/news/us-news/hemp-industry-expected-blossom-under-new-farm-bill-n947791. For clarification, CBD stands for cannabidiol, a product derived from hemp, often sold in gummy or oil form. THC stands for tetrahydrocannabinol, the psychoactive part of the marijuana plant that can get you high. THC often refers to what is known as delta-9 THC, a type of THC found in the marijuana plant.

[2] John Hudak, The Farm Bill, Hemp Legalization and the Status of CBD: An Explainer, Brookings Institution (Dec. 14, 2018), https://www.brookings.edu/articles/the-farm-bill-hemp-and-cbd-explainer/

[3] As the Brookings Institution points out, the extremely low levels of THC in now-legal hemp products means that these products cannot be used to get high.

[4] Sam Reisman, New Report Urges Feds to Take Larger Role in Pot Policy, Law360 (Sept. 26, 2024, 8:53 PM), https://plus.lexis.com/newsstand/law360/article/1883058/?crid=c6fd0d9a-971e-489f-a5c6-8c1725ffee87

[5] Dale Ellis, Federal Judge Blocks State’s New Law Banning Delta-8 THC Products, Arkansas Democrat Gazette (Sept. 7, 2023, 6:00 PM), https://www.arkansasonline.com/news/2023/sep/07/federal-judge-blocks-states-new-law-banning-delta-8-thc-products/

[6] Sam Reisman, Court Defers Ruling On Challenge To Arkansas Hemp Law, Law360 (Sept. 25, 2024, 6:50 PM), https://plus.lexis.com/newsstand/law360/article/1882683/?crid=48cd5145-0817-47a7-bf22-1fb3bf01cb5f

[7] Jonathan Capriel, Missouri Ban on Some Psychoactive Foods to Hit Sept. 1 (August 30, 2024, 8:47 PM), https://plus.lexis.com/newsstand/law360/article/1882683/?crid=48cd5145-0817-47a7-bf22-1fb3bf01cb5f;  Rebecca Rivas, Missouri Hemp Leaders File Suit to Halt Governor’s Ban on Hemp THC Products, Missouri Independent (August 30, 2024 5:55 AM), https://missouriindependent.com/2024/08/30/missouri-hemp-leaders-set-to-file-suit-to-halt-governors-ban-on-hemp-thc-products/

[8] Sophie Nieto-Munoz, Gov. Murphy Signs Controversial Bill Restricting Sales of Hemp Products, New Jersey Monitor (Sept. 13, 2024, 7:11 AM), https://newjerseymonitor.com/2024/09/13/gov-murphy-signs-controversial-bill-restricting-sales-of-hemp-products/

[9] Rae Ann Varona, Calif. Gov.’s Emergency Hemp Intoxicant Ban Wins Approval, Law360 (Sept. 24, 2024, 9:49 PM),  https://plus.lexis.com/newsstand/law360/article/1882121/?crid=642ddd2e-a29d-46d6-8ff4-b7f209fd6c7f&cbc=0,0

[10] Same Reisman, Wyden Pitches New Bill To Regulate Intoxicating Hemp, Law360 (Sept. 25, 2024, 7:06 PM), https://plus.lexis.com/newsstand/law360/article/1882226/?crid=ed53b57f-dd97-4a6a-8a89-f6028f95e523

[11] Nationwide Children’s, New Study Finds Increase in Exposures to Synthetic Tetrahydrocannabinols Among Young Children, Teens, and Adults, Nationwide Children’s Hospital (May 7, 2024), https://www.nationwidechildrens.org/newsroom/news-releases/2024/05/deltathc_clinicaltoxicology

[12] Id.

[13] Varona, supra note 9.

[14] World Health Organization, Cannabidiol (CBD) Critical Review Report 5 (2018).

[15] Stacy Weiner, CBD: Does It Work? Is It Safe? Is It Legal?, AAMC News (July 20, 2023), https://www.aamc.org/news/cbd-does-it-work-it-safe-it-legal

[16] Reisman, supra note 6; Varona, supra note 9.

[17] U.S. Const. art. VI, cl. 2

NEPA and Climate Change: Are Environmental Protections Hindering Renewable Energy Development?

October 9, 2024
Climate Change, Energy Law, Environmental Law, Regulatory

Samuel Taylor, MJLST Staffer

The National Environmental Protection Act, or “NEPA”, has been essential in protecting America’s air and water, managing health hazards, and preserving environmental integrity. For decades, environmental activist groups, the government, and regular citizens relied on and benefitted from enforcing these NEPA against those looking to pollute, poison, or endanger Americans and their environment. NEPA, however, is proving to be less suitable for addressing the country’s  imminent environmental challenge: climate change. As proponents of green energy scramble to ditch fossil fuels, NEPA and its procedural requirements are accused of delaying or halting renewable energy projects. Environmental protection laws remain essential to stopping the dangers they were passed to stop, and many new green energy projects pose additional risks to the environment, but we also need to transition away from fossil fuels as fast as possible to avoid the worst consequences of climate change. The conflict between the need to address climate change and the need to maintain environmental protections has created a regulatory challenge that may not have a perfect solution.

Enacted in 1970, NEPA was the first major environmental protection measure taken in the US.[i] The “magna carta” of environmental laws applies to all “major federal actions significantly affecting the environment”.[ii] Major federal actions can include everything from infrastructure projects like proposed dams, bridges, highways, and pipelines, to housing developments, research projects, and wildlife management plans.[iii] Before a federal agency can act, there are a series of procedures they must follow which force them to consider the environmental impacts of the potential action. These procedures involve community outreach, the effects of past and future actions in the region, and providing the public with a detailed explanation of the agency’s findings, and often take years to fully complete.[iv] By requiring the government to follow these procedures “to the fullest extent possible,” NEPA aims to ensure that environmental concerns are given sufficient consideration before any harmful actions are taken.[v] Notably, NEPA is not a results-oriented statute, but a process-oriented one.[vi] No agency decision can be made until after its procedures are followed, but once they are, NEPA does not mandate a particular decision.[vii] NEPA does not even require that environmental concerns be given more weight than any other factors.[viii] Nevertheless, if an agency fails to properly follow NEPA procedures, all resulting decisions can be invalidated if challenged in the courts.[ix]

Though passing NEPA was the first step Congress took towards addressing environmental concerns, and decades of NEPA success stories have followed, there is growing concern about its  ability to adapt to the pressing challenges presented by global climate change.[x] NEPA, critics say, drastically slows the government’s ability to invest in green energy because each step of the procedure can be challenged in court.[xi] Corporate competitors in the renewable energy sector, environmental interest groups, concerned citizen groups, and Native American tribes have all challenged various projects’ compliance with NEPA requirements.[xii] Many of these groups have legitimate concerns about the projects, and NEPA allows them to stall or halt development while the government is forced to further consider their potential environmental impacts. This causes direct conflict between these valid concerns and efforts to reverse the country’s reliance on fossil fuels.[xiii] Collectively, the long procedures and potential legal challenges that accompany NEPA’s requirements present serious hurdles to the production of green energy.

Legal experts disagree, perhaps not surprisingly, over the extent to which NEPA hinders the production of green energy sources. Some groups believe the rhetoric surrounding NEPA’s deficiencies is an exaggeration, citing data that shows only a very small percentage of green energy projects actually require the production of EISs.[xiv] Others present NEPA and other environmental protection laws as serious hurdles preventing the production of renewable energy at the pace we need to avoid the worst effects of climate change.[xv] They argue that this data is not properly representative of all clean energy projects, ignores the delays caused by litigation, and does not properly account for the likelihood that delays will get worse in the future.[xvi] Because there is little consensus regarding the extent of the problem, there is likewise almost no agreement on a potential solution.

 Lawmakers and legal scholars have proposed a range of approaches to the NEPA problem. Most drastically, a bill introduced to the U.S. House Committee on Natural Resources by Representative Bruce Westerman would largely eradicate most NEPA provisions by limiting consideration of new scientific evidence, allowing some projects to go exempt from NEPA’s requirements, and drastically limiting community instigated judicial review.[xvii] Other proposals are more modest, including permitting reform to favor green energy projects, placing some limits on judicial review, and collecting more comprehensive data on NEPA issues.[xviii] Still others are staunchly against most reforms, arguing that weakening any NEPA provisions would open the door for greater environmental abuses.[xix] The differing opinions on the scope of the problem and the wide range of proposed solutions amount to a problem that will not be easy to solve.

The legal community is divided on the efficacy of existing NEPA regulations that have, for decades, promoted environmental protection. In the face of climate change and the accompanying need for renewable energy, it must be determined whether NEPA is truly hindering the switch to green energy. The United States must build more renewable energy infrastructure if we are to avoid the worst consequences of global climate change, but with concern growing that our own environmental protection laws are hindering progress, it will be challenging to move forward in a manner that balances the need for green energy production against the necessity of strong environmental protection laws.

 

Notes

[i] Sam Kalen, NEPA’s Trajectory: Our Waning Environmental Charter From Nixon to Trump, 50 Environmental Law Reporter 10398, 10398 (2020).

[ii] Id.; Mark A. Chertok, Overview of the National Environmental Policy Act: Environmental Impact Assessments and Alternatives (2021); 42 U.S.C. §§ 4321–70.

[iii] Elly Pepper, Never Eliminate Public Advice: NEPA Success Stories, Natural Resources Defense Council (Feb. 1, 2015), https://www.nrdc.org/resources/never-eliminate-public-advice-nepa-success-stories#:~:text=The%20NEPA%20process%20has%20saved,participated%20in%20important%20federal%20decisions.

[iv] Chertok, supra note ii; 42 U.S.C. §§ 4321–70.

[v] Chertok, supra note ii; Catron County v. U.S.F.W.S., 75 F.3d 1429, 1437 (10th Cir. 1996).

[vi] Chertok, supra note ii; Catron County at 1434.

[vii] Chertok, supra note ii.

[viii] Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 97 (1983).

[ix] Chertok, supra note ii (citing Lands Council v. Powell, 395 F.3d 1019, 1027 (9th Cir. 2005)).

[x] Pepper, supra note iii; Aidan Mackenzie & Santi Ruiz, No, NEPA Really Is a Problem for Clean Energy, Institute For Progress (Aug. 17, 2023), https://ifp.org/no-nepa-really-is-a-problem-for-clean-energy/#nepa-will-harm-clean-energy-projects-even-more-in-the-future; Darian Woods & Adrian Ma, Environmental Laws Can Be an Obstancel in Building Green Energy Infrastructure, NPR (Apr. 13, 2022), https://www.npr.org/2022/04/13/1092686675/environmental-laws-can-be-an-obstacle-in-building-green-energy-infrastructure.

[xi] Mackenzie & Ruiz, supra note x; See, e.g. Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005) (where the agency finding of no significant impact was challenged by an environmental protection group); Sierra Club v. Bosworth, 510 F.3d 1016 (9th Cir. 2007) (where the agency’s EIS analysis was challenged by the Sierra Club).

[xii] Niina H. Farah, Tribes Sue Over NEPA Review for Oregon Offshore Wind Auction, Politico (Sep. 18, 2024), https://www.eenews.net/articles/tribes-sue-over-nepa-review-for-oregon-offshore-wind-auction/; Christine Billy, Update: Congestion Pricing: A Case Study on Interstate Air Pollution Disputes, New York State Bar Association (Sep. 23, 2024), https://nysba.org/update-congestion-pricing-a-case-study-on-interstate-air-pollution-disputes/; Jonathan D. Brightbill & Madalyn Brown Feiger, Environmental Challenges Seek to Block Renewable Projects, Winston & Strawn LLP (Sep. 1, 2021), https://www.winston.com/en/blogs-and-podcasts/winston-and-the-legal-environment/environmental-challenges-seek-to-block-renewable-projects.

[xiii] Farah, supra note xii; Brightbill & Feiger, supra note xiv.

[xiv] Ann Alexander, Renewable Energy and Environmental Protection Is Not an Either/Or, Natural Resources Defense Council (Jan. 18, 2024), https://www.nrdc.org/bio/ann-alexander/renewable-energy-and-environmental-protection-not-eitheror.

[xv] Mackenzie & Ruiz, supra note x.

[xvi] Alexander, supra note xiv; Mackenzie & Ruiz, supra note x.

[xvii] Defenders of Wildlife, Defenders Slams Bill Aiming to Rollback NEPA and Gut Environmental Protections, (Sep. 10, 2024), https://defenders.org/newsroom/defenders-slams-bill-aiming-rollback-nepa-and-gut-environmental-protections.

[xviii] Brian Potter, Arnab Datta & Alec Stapp, How to Stop Environmental Review from harming the Environment, Institute For Progress (Sep. 13, 2022), https://ifp.org/environmental-review/.

[xix] Alexander, supra note xiv; Sierra Club

 

 

 

 

Are AI Overviews Creating New Risk of Libel for Search Engines?

October 7, 2024
Artificial Intelligence, Intellectual Property, Internet, Product Liability

Eleanor Nagel-Bennett, MJLST Staffer

47 USC § 230 of the Communications Decency Act (“CDA”) protects online service providers from civil liability for content published on their servers by third parties. Essentially, it clarifies that if a Google search for one’s name produced a link to a blog post containing false and libelous content about that person, the falsely accused searcher could pursue a claim of defamation against the publisher of the blog, but not against Google. Under § 230, Google is not considered the speaker or the publisher of the libelous statements on the blog, despite returning the libelous results on the search engine results page. Specifically, § 230 provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” for purposes of civil penalties.[i]

However, in May 2024 Google rolled out an “AI Overview” feature on their search engine. The AI Overview is powered by Gemini, Google’s generative artificial intelligence chatbot.[ii] Gemini generates a response to each google search by combining information from internet sources and writing a complete overview answer to the search query using “multi-step reasoning, planning and multimodality” functions.[iii] After submitting a query, the AI Overview is displayed at the top of the search results. In the first few weeks, Google’s AI Overview suffered from hallucinations producing “odd and erroneous” outputs.[iv] Some of the odd results were obviously false, such as suggesting a user try adhering cheese to their pizza with a glue stick.[v]

Besides going viral online, the silly results were largely inconsequential. However, there were also several more serious reports of Google’s AI Overview feature generating misinformation that presented responses more difficult to identify as false. One such result claimed that President Barack Obama was the first Muslim President, a popular but demonstrably false conspiracy theory that has circulated the internet for years, while another told users that certain poisonous mushrooms were safe for human consumption.[vi] Google has since changed the data pool used to produce AI Overviews, and now rarely produces blatantly false results — but is rarely enough when 8.5 billion searches are run per day on Google?[vii]

This raises the question: can search engines be held liable for libelous content published by their generative AI? A plaintiff will have to prove to the court that § 230 of the Communications Decency Act is not a statutory bar to claims against generative AI. A recent consensus of legal scholars anticipate courts will likely find that the CDA would not bar claims against a company producing libelous content through generative AI because content produced by generative AI is original work, “authored” by the AI itself.[viii]

For an illustrative comparison, consider how defamation claims against journalists work as compared to defamation claims against traditional search engine results. While a journalist may write stories based on interviews, research, and experience, the language she publishes are her own words, her own creation, and she can be held liable for them despite sourcing some pieces from other speakers. Traditional search engines on the other hand historically post the sourced material directly to the reader, so they are not the “speaker” and therefore are insulated from defamation claims.  Enter generative AI, the output of which is likely to be considered original work by courts, and that insulation may erode.[ix] Effectively, introducing an AI Overview feature waives the statutory bar to claims under § 230 of the CDA relied upon by search engines to avoid liability for defamation claims.

But even without an outright statutory bar to defamation claims against a search engine’s libelous AI output, there is disagreement over whether generative AI output in general is relied upon seriously enough by humans to give rise to a defamation claim. Some believe that AI generated text should not be interpreted as a reasonably perceived factual claim, and therefore argue that AI generated content cannot give rise to a claim for defamation.[x] This is where the legitimacy of a result displayed on a popular search engine comes into play. Even if AI generated text is not ordinarily reasonably perceived as a factual claim, when displayed at the top of a search engine’s results page, more weight and authority is given to the result, though users might otherwise be wary of AI outputs.[xi]

While no landmark case law on the liability of an AI machine for libelous output has been developed to date, several lawsuits have already been filed on the question of liability assignment for libelous content produced by generative AI, including at least one case against a search engine for AI generated output displayed on a search engine results page.[xii]

Despite the looming potential for consequences, most AI companies have neglected to give attention to the risk of libel created by the operation of generative AI.[xiii] While all AI companies should pay attention to the risks, search engines previously insulated from civil liability by § 230 of the CDA should be especially wary of just how much liability they may be opening themselves up to by including an AI Overview on their results pages.

 

Notes

[i] 47 U.S.C. §230(c)(1).

[ii] Reid, Liz, Generative AI in Search: Let Google do the searching for you, Google (May 14, 2024) https://blog.google/products/search/generative-ai-google-search-may-2024/.

[iii] Id.

[iv] Reid, Liz, AI Overviews: About last week, Google (May 30, 2024) https://blog.google/products/search/ai-overviews-update-may-2024/.

[v] O’Brien, Matt, Google makes fixes to AI-generated search summaries after outlandish answers went viral, The Associated Press (May 30, 2024) https://apnews.com/article/google-ai-overviews-hallucination-33060569d6cc01abe6c63d21665330d8.

[vi] Id.

[vii] Brannon, Jordan, Game-Changing Google Search Statistics for 2024, Coalition, (Apr. 5, 2024) https://coalitiontechnologies.com/blog/game-changing-google-search-statistics-for-2024.

[viii] Joel Simon, Can AI be sued for defamation?, Col. Journalism Rev. (March 18, 2024).

[ix] Id.

[x]  See Eugene Volokh, Large Libel Models? Liability For AI Output, 3 J. Free Speech L. 489, 498 (2023).

[xi] Id.

[xii] In July of 2023, Jeffery Battle of Maryland filed suit against Microsoft for an AI generated search result on BING accusing him of crimes he did not commit. The Plaintiff Jeffery Battle is a veteran, business owner, and aerospace professor. When his name is searched online, however, Bing’s AI overview accuses Battle of crimes committed by a different Jeffrey Battle, Jeffery Leon Battle. The other Jeffery Battle pled guilty to seditious conspiracy and levying war against the United States after he tried to join the Taliban in the wake of 9/11. Bing’s search engine results page overview powered by Chat GPT combines information about the two Jeffery’s into one. See Id. at 492.

[xiii] Id. at 493.

Social Media Platforms Won’t “Like” This: How Aggrieved Users Are Circumventing the Section 230 Shield

October 4, 2024
Litigation, Product Liability, Public Safety, Social Media, Torts Law

Claire Carlson, MJLST Staffer

 

Today, almost thirty years after modern social media platforms were introduced, 93% of teens use social media on a daily basis.[1] On average, teens spend nearly five hours a day on social media platforms, with a third reporting that they are “almost constantly” active on one of the top five leading platforms.[2] As social media usage has surged, concerns have grown among users, parents, and lawmakers about its impacts on teens, with primary concerns including cyberbullying, extremism, eating disorders, mental health problems, and sex trafficking.[3] In response, parents have brought a number of lawsuits against social media companies alleging the platforms market to children, connect children with harmful content and individuals, and fail to take the steps necessary to keep children safe.[4]

 

When facing litigation, social media companies often invoke the immunity granted to them under Section 230 of the Communications Decency Act.[5] 47 U.S.C § 230 states, in relevant part, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”[6] Federal courts are generally in consensus and interpret the statutory language as providing broad immunity for social media providers.[7] Application of this interpretive framework establishes that social media companies can only be held liable for content they author, whereas Section 230 shields them from liability for harm arising from information or content posted by third-party users of their platforms.[8]

 

In V.V. v. Meta Platforms, Inc., plaintiffs alleged that popular social media platform Snapchat intentionally encourages use by minors and consequently facilitated connections between their twelve-year-old daughter and sex offenders, leading to her assault.[9] The court held that the facts of this case fell squarely within the intended scope of Section 230, as the harm alleged was the result of the content and conduct of third-party platform users, not Snapchat.[10] The court expressed that Section 230 precedent required it to deny relief to the plaintiffs, whose specific circumstances evoked outrage, asserting it lacked judicial authority to do otherwise without legislative action.[11] Consequently, the court held that Section 230 shielded Snapchat from liability for the harm caused by the third-party platform users and that plaintiffs’ only option for redress was to bring suit against the third-party users directly.[12]

 

After decades of cases like V.V., where Section 230 has shielded social media companies from liability, plaintiffs are taking a new approach rooted in tort law. While Section 230 provides social media companies immunity from harm caused by their users, it does not shield them from liability for harm caused by their own platforms and algorithms.[13] Accordingly, plaintiffs are trying to bypass the Section 230 shield with product liability claims alleging that social media companies knowingly, and often intentionally, design defective products aimed at fostering teen addiction.[14] Many of these cases analogize social media companies to tobacco companies – maintaining that they are aware of the risks associated with their products and deliberately conceal them.[15] These claims coincide with the U.S. Surgeon General and 40+ attorney generals imploring Congress to pass legislation mandating warning labels on social media platforms emphasizing the risk of teen addiction and other negative health impacts.[16]

Courts stayed tort addiction cases and postponed rulings last year in anticipation of the Supreme Court ruling on the first Section 230 immunity cases to come before it.[17] In companion cases, Gonzalez v. Google LLC and Twitter, Inc. v. Taamneh, the Supreme Court was expected to shed light on the scope of Section 230 immunity by deciding whether social media companies are immune from liability when the platform’s algorithm recommends content that causes harm.[18] In both, the court declined to answer the Section 230 question and decided the cases on other grounds.[19]

 

Since then, while claims arising from third-party content are continuously dismissed, social media addiction cases have received positive treatment in both state and federal courts.[20] In a federal multidistrict litigation (MDL) proceeding, the presiding judge permitted hundreds of addiction cases alleging defective product (platform and algorithm) design to move forward. In September, the MDL judge issued a case management order, which suggests an early 2026 trial date.[21] Similarly, a California state judge found that Section 230 does not shield social media companies from liability in hundreds of addiction cases, as the alleged harms are based on the company’s design and operation of their platforms, not the content on them.[22] Thus, social media addiction cases are successfully using tort law to bypass Section 230 where their predecessor cases failed.

 

With hundreds of pending social media cases and the Supreme Court’s silence on the scope of Section 230 immunity, the future of litigating and understanding social media platform liability is uncertain.[23] However, the preliminary results seen in state and federal courts evinces that Section 230 is not the infallible immunity shield that social media companies have grown to rely on.

 

Notes

 

[1] Leon Chaddock, What Percentage of Teens Use Social Media? (2024), Sentiment (Jan. 11, 2024), https://www.sentiment.io/how-many-teens-use-social-media/#:~:text=Surveys%20suggest%20that%20over%2093,widely%20used%20in%20our%20survey. In the context of this work, the term “teens” refers to people aged 13-17.

[2] Jonathan Rothwell, Teens Spend Average of 4.8 Hours on Social Media Per Day, Gallup (Oct. 13, 2023), https://news.gallup.com/poll/512576/teens-spend-average-hours-social-media-per-day.aspx; Monica Anderson, Michelle Faverio & Jeffrey Gottfried, Teens, Social Media and Technology 2023, Pew Rsch. Ctr. (Dec. 11, 2023), https://www.pewresearch.org/internet/2023/12/11/teens-social-media-and-technology-2023/.

[3] Chaddock, supra note 1; Ronald V. Miller, Social Media Addiction Lawsuit, Lawsuit Info. Ctr. (Sept. 20, 2024), https://www.lawsuit-information-center.com/social-media-addiction-lawsuits.html#:~:text=Social%20Media%20Companies%20May%20Claim,alleged%20in%20the%20addiction%20lawsuits.

[4] Miller, supra note 3.

[5] Tyler Wampler, Social Media on Trial: How the Supreme Court Could Permanently Alter the Future of the Internet by Limiting Section 230’s Broad Immunity Shield, 90 Tenn. L. Rev. 299, 311–13 (2023).

[6] 47 U.S.C. § 230 (2018).

[7] V.V. v. Meta Platforms, Inc., No. X06UWYCV235032685S, 2024 WL 678248, at *8 (Conn. Super. Ct. Feb. 16, 2024) (citing Brodie v. Green Spot Foods, LLC, 503 F. Supp. 3d 1, 11 (S.D.N.Y. 2020)).

[8] V.V., 2024 WL 678248, at *8; Poole v. Tumblr, Inc., 404 F. Supp. 3d 637, 641 (D. Conn. 2019).

[9] V.V., 2024 WL 678248, at *2.

[10] V.V., 2024 WL 678248, at *11.

[11] V.V., 2024 WL 678248, at *11.

[12] V.V., 2024 WL 678248, at *7, 11.

[13] Miller, supra note 3.

[14] Miller, supra note 3; Isaiah Poritz, Social Media Addiction Suits Take Aim at Big Tech’s Legal Shield, BL (Oct. 25, 2023), https://www.bloomberglaw.com/bloomberglawnews/tech-and-telecom-law/X2KNICTG000000?bna_news_filter=tech-and-telecom-law#jcite.

[15] Kirby Ferguson, Is Social Media Big Tobacco 2.0? Suits Over the Impact on Teens, Bloomberg (May 14, 2024), https://www.bloomberg.com/news/videos/2024-05-14/is-social-media-big-tobacco-2-0-video.

[16] Miller, supra note 3.

[17] Miller, supra note 3; Wampler, supra note 5, at 300, 321; In re Soc. Media Adolescent Addiction/Pers. Inj. Prod. Liab. Litig., 702 F. Supp. 3d 809, 818 (N.D. Cal. 2023) (“[T]he Court was awaiting the possible impact of the Supreme Court’s decision in Gonzalez v. Google. Though that case raised questions regarding the scope of Section 230, the Supreme Court ultimately did not reach them.”).

[18] Wampler, supra note 5, at 300, 339-46; Leading Case, Twitter, Inc. v. Taamneh, 137 Harv. L. Rev. 400, 409 (2023).

[19] Twitter, Inc. v. Taamneh, 598 U.S. 471, 505 (2023) (holding that the plaintiff failed to plausibly allege that defendants aided and abetted terrorists); Gonzalez v. Google LLC, 598 U.S. 617, 622 (2023) (declining to address Section 230 because the plaintiffs failed to state a plausible claim for relief).

[20] Miller, supra note 3.

[21] Miller, supra note 3; 702 F. Supp. at 809, 862.

[22] Miller, supra note 3; Poritz supra note 14.

[23] Leading Case, supra note 18, at 400, 409.

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