Instagram, TikTok could get sued for addicting kids under California proposal

Big Tech companies could face a slew of lawsuits for harming children under a new California proposal that takes the toughest industry-accountability stance yet on the mental health toll of intense social media use.

The bipartisan measure from Assemblymembers Jordan Cunningham (R-Templeton) and Buffy Wicks (D-Oakland), which rolls out on Tuesday, would hold social media companies legally liable for deploying features and apps that addict children to their detriment. Significantly, the legislation is retroactive, which would put the companies at legal risk for any past damage their products caused for teens and younger children.

In an exclusive interview about the bill, Cunningham compared its potential effect to the landmark legislation against Big Tobacco’s marketing to kids.

“The types of harm we're seeing out of the social media addiction epidemic that we've got going on with our teenagers, especially, is eating disorders, it's depression and suicidal ideation,” Cunningham said. “It’s got both a mental health component and a physical health component. And I don't know why all of us — society and the kids — have to pay the cost of that. It seems like that cost should be borne at least in part by the companies that profit from the behavior.”

Impact: The bill would open up social media companies to myriad lawsuits — individual, class action and litigation by California’s Department of Justice. It is an ambitious push against an industry viewed as largely exempt from major state reforms regarding how social media companies handle content thanks to federal immunities under Section 230 of the U.S. Communications Decency Act.

Cunningham contends that his proposal avoids a clash with federal policy through its narrow focus on whether apps are using an addictive algorithm, rather than on their content.

Regardless, Assembly Bill 2408 will likely trigger a massive battle from industry giants that have faced a barrage of political and public fire over the past year, particularly after Facebook whistleblower Frances Haugen testified her company knew its apps were harming kids’ mental health.

Context: This newest Cunningham-Wicks bill is among a slate of proposals aimed at protecting kids online.

The same bipartisan legislative duo aim to establish an “age-appropriate” standard for apps and websites widely used by young people. Their pitch has piqued widespread general interest, and state Attorney General Rob Bonta is even considering sponsorship.

Assembly Privacy Chair Jesse Gabriel (D-Encino) is making kids’ online safety the centerpiece of his own policy push. He has also scheduled an informational hearing on the topic on March 29.

What’s next: As legislators flesh out the full slate of proposals on kids’ privacy, the industry will pick its major lobbying battles — and AB 2408 will likely face its full firepower.

Cunningham said he’s bracing for heavy tech opposition and sees the state Senate as the biggest hurdle to the bill's passage. Still, he said, the issue is ripe for retroactive accountability given the evidence that Facebook and Instagram knew their apps were addictive.

“I think this is as good a case as I can think of, outside maybe massive oil spills or Joe Camel pitching cigarettes to 15-year-olds, for retroactive application,” he said. “We’ll see whether my legislative colleagues agree with me — that remains to be seen.”