All or Nothing: Utah's Social Media Lawsuit Against TikTok. (by Leigh Ann Bauman)
Governor Cox in his first term has
focused on the mental health of teenage Utahns, specifically with the usage of
social media. Earlier this year the State passed two bills, HB0311 and SB0152 that seek
to regulate how social media companies operate when it comes to minors. The
laws set to make age requirements, prohibit companies from collecting data, grant
parental access, and limit the hours of access.
Today, the State of Utah took it one
step further and filed a consumer protection lawsuit against TikTok (here’s a
link to the filed lawsuit, it’s 60 pages long Division
of Consumer Protection of the State of Utah vs. TikTok).
The civil lawsuit seeks to force TikTok
to change its practices and seeks punitive damages to rectify the alleged harms.
The Attorney General brought the action asking TikTok to “stop the harm it
causes to Utah’s children through its ongoing violations of the Utah Consumer
Sales Practices Act, Utah Code §§13-11-1 through -24.”
The lawsuit compares features of TikTok
to that of a “slot machine” with its addictive features, such as the constant
video play and reward for the next video.
The State is seeking that TikTok:
a. Preliminarily or permanently enjoin Defendant, in accordance
with Utah Code § 13-11-17(1), from violating the UCSPA;
b. Order Defendant to pay restitution and damages well in excess
of $300,000 in accordance with Utah Code § 13-11-17(1)(c);
c. Order the payment of civil penalties well in excess of
$300,000, as permitted by statute in accordance with Utah Code § 13-11-17(1)
for Defendant’s violations of the UCSPA;
d. Award the Division the costs of this action, its
investigation, and reasonable attorney’s fees in accordance with Utah Code §
13-11-17.5; and
e. Grant such further relief as the Court deems just and proper.
I believe that all social media is addictive.
I am not on TikTok, but I will admit I took 2 Instagram breaks in writing and
researching this. So as the Attorney General who has to argue this in court, how
do you prove the harm of an addictive substance that is solely impacting mental
health? How do you make something less addictive? Is this an issue that states
can bring forth to begin with? Do these limits on social media and TikTok infringe
on someone’s First Amendment rights?
Although I 100% agree that social media is addictive (guilty), this seems like a very subjective issue to argue in court. I suppose you could scientifically show addiction by monitoring dopamine levels and showing an increase in dopamine when an individual uses social media - but there is still a level of subjectivity. Does dopamine increase prove addiction or just show that it make a person feel better such as eating food when you're hungry does? There are of course signs that one would be able to identify, such as affect on relationships and ability to work. There are many arguments and research related to social media usage that could prove useful I'm sure, but there is a larger issue with this lawsuit.
ReplyDeleteFirst, I don't think this is an issue that states can bring forth simply because it violates first amendment rights of speech. They can no more ban residents from viewing or posting to TikTok than they could a local paper because of who owns it or the ideas it publishes.
There also seems to be an issue with a state trying to take power over foreign affairs and regulate interstate commerce. This is a federal government issue so it seems that Utah (and the other states that will surely follow) is over reaching their Constitutional rights.
Don't get me wrong, I would love nothing more than to ban children from not only TikTok, but all social media platforms until they are adults, but I just don't see this being a successful lawsuit. It feels more like a statement and an attempt to make parents of the state feel better by taking the responsibility of their children's social media use off of their shoulders and make government deal with it for them.
I totally agree.
DeleteYou may have seen this before, but this is pretty cool addiction/drug explanation.
https://learn.genetics.utah.edu/content/addiction/mouse/
Where do you find this stuff? I want to party with those mice...
DeleteInteresting to think how social medias can do the same things here since there is no physical substance being ingested.
Not that I'm impacted myself (rather, heard from others), but that new regulation has apparently led to Redtube and Pornhub refusing access to their servers if it can link your device back to local Utah server. Their argument is, apparently, that requiring an ID to access "adult" content compromises the privacy of those trying to access that content worse than if ID verification wasn't required. You see this argument crop up for other "verified" certificates--particularly in the context of HTTP cookies and Europe's GDPR-- and is now finding ground in the space we call the "digital twin." While we should have a right to request that all information related to our web-based activities be erased--or rather, that we should have a right to be forgotten in digital environments--you still have to be able to trace those digital footprints to ensure that all of the data you digitally create is fully wiped away. Even being "anonymous" online requires the system to recognize your IP as being masked--which necessarily needs to be logged for other regulatory reasons and for traceability for billing purposes.
DeleteStating, in sum, that Utah is kinda reacting to social media in the same way Texas is to the border--beyond its legal authority. While I doubt we'll see significant ramifications related to an individual's digital footprint because of this, the industrial standards development community is in the process of figuring out the fullest extent to which someone can be anonymous whilst also being traceable. In a sense, it's kinda the same as trying to walk into a busy public building and demanding that people not pay attention to what your doing at all. Depending on where the data is located, your footprint in Utah could feasibly link to servers and transfer nodes between here and Singapore--or other foreign governments on the other side of the globe whom you may never physically visit or interact with. To tell those governments that your individual right to privacy trumps their national security interests is, frankly, absurd. However, this is what Utah is attempting to do--and I imagine with the hope that it becomes the reason why we have to digitally certify ourselves any time we attempt to perform any digital activity in the future. And not just by logging in with a user name or password--I imagine they'll require us to scan a QR code, perform a 2-step authentication request, or have AI be our authorized agent in virtual spaces. Should note, however, that there is no such thing as an unhackable system--so Utah is basically asking us to deal with our personal information being at an even greater risk of being compromised and stolen while also trying not to be held liable for any resulting damages--but that's probably my cynicism speaking more than actual fact.
DeleteI must say that I find the addiction/mouse explanation more than offensive. It goes to show how little the state actually gives a damn about those who suffer from Substance Use Disorders when they compare them to rats/mice and label them based on what substance they struggle with. Having lost my sister at 37 years old to an accidental overdose and my former brother-in-law to alcoholism and substance abuse, both of whom had children and families that loved them, the depiction used to "explain" substance use disorder was disgusting. Perhaps the state should focus on helping individuals that cannot access the help they desperately need rather than creating one no one asked them to address.
DeleteI'm sorry for your lost.
DeleteMy intention was not to offend. My intention was to briefly illustrate how substances affect and change the brain's "wiring". There is much more to addiction than what is covered by this. Social, economical, political, legal, familial, etc. Many psychology programs, medical, etc. still use animals particularly mice and pigeons for labs. The mouse video/game is for educational purposes.
There should be more programs - better programs to take on substance use as a health epidemic.
I see this suit against TikTok as a total waist of tax payer money and a political stunt.
Awesome post. I like how you separated key parts. White space does make for an easier read.
ReplyDeleteAs a step-parent and former child abuse investigator I can attest that social media can be addictive and even dangerous. Not gonna name branches, but ***cough***Air Force***cough*** posted documents on Discord. There are also many studies out there that show a link between social media and mental health. Not to mention, all the false information that's out there.
I agree that there needs to be something in place - maybe content warning, certain protections, etc. I also disagree that the court will circumnavigate the first amendment. Like most things child related, it is the parent / guardian's responsibility to make social media / the internet safe for their child. They have to cross the street on their own someday.
If the Marines knew how to use technology half as good as the USAF perhaps they would have a few data breaches as well...
DeleteI'll play the devil's advocate a bit here--but only because I can relate to your thoughts, not because I want to poke the figurative hornet's nest. And note, I'm speaking in generalities here--the topic is far too complex for a forum like this.
DeleteWhile Internet-based services are not without their numerous inconveniences (depending on what you’re doing, the account your using, or the way you're accessing the Web), you still have a lot of freedom regarding the content that you can access--at least, relative to the entire whole of the data that makes up the Web. While you would think that your monthly Internet or cell phone bill would be enough to sustain that architecture, it isn't by a looooong shot. Server maintenance is of the largest expenses--as there can be no web page without physical storage, and no physical storage without a cooling and power system. Per the DoE:
"Data centers are one of the most energy-intensive building types, consuming 10 to 50 times the energy per floor space of a typical commercial office building. Collectively, these spaces account for approximately 2% of the total U.S. electricity use, and as our country's use of information technology grows, data center and server energy use is expected to grow too" (https://www.energy.gov/eere/buildings/data-centers-and-servers).
Hence why data lost in a natural disaster is gone for good, unless otherwise backed up to infrastructure not affected by said disaster.
As we may all be familiar with, social media companies (and other netizens) generally do not charge you a fee to create an account and engage with their platform or website. Instead, they use a model where your attention is literally all they need to provide those services without you having to pay a cent. While you may therefore be subjected to a veritable wall of ads, those ads are collectively what pays for the (nearly) 24/7 access to that platform or website. I say “nearly” because servers may be offline for maintenance or in response to a cyberattack. Depending on your attitude towards advertisements—particularly those that may take a while to load because of how many ads are present—it is inevitable that any warning or window pop-up will add to the time you’re on your computer and phone. It won’t be due to you using services more though—it’ll be reflected in the amount of time you have to wait for that web-based server to load. This will, in turn, result in a greater need for “faster” Internet speeds at a rate that is affordable for the typical median income in a community.
Data speeds for Internet service, however, are very much like the water in a canal. If no one uses the water, it will flow from its source to its terminus. If you open a floodgate along its path, water will naturally flow away from the terminus towards that new path. The more floodgates are opened, the less overall water there will be. Hence why you’ll get users on the same network experiencing different data speeds even though they may be accessing the same content. Keeping with this analogy, you would assume that widening the floodgate would lead to a greater amount of water being captured. However, that may not actually be the case if more water isn’t provided at the source. Hence why Internet and phone data providers practice prioritization. Because their resources are limited (or rather, they have no way of infinitely expanding the amount of data that is provided to your computer or phone), they will instead prioritize the requests of those who are willing or able to pay more.
(cont)
DeleteBack on topic though. If web browsers are required to have even more information associated with them—whether it be a government warning, a certification prompt, or something of that nature—that will add to the time it takes for the computer to process the request and the packets being sent along the network. While Internet providers can certainly limit how much data your webpage or service is allowed to have, there is no standard to say what those limitations should or ought to be. Ultimately, it becomes a vicious cycle of needing “faster Internet” to load webpages in a timely manner whilst also adding to the base amount of data required to develop a webpage or service. And, remember, the providers cannot infinitely increase the speed whereby data is transferred to and from your device. Without better IS/IT management, you could well end up in a position where a search engine doesn’t appear—or where you have to pay a fee for webpage access while also being bombarded with ads.
Hence why so many oppose the idea of creating another “customize your cookies” window similar to that we see on every site due to the EU’s GDPR regulations—even if it would make things safer for kids, or otherwise function in a manner that promotes “positive” mental health or prevents addiction-forming habits.
My first thought was exactly that this should be a parent/guardian's responsibility to limit social media and not for the state to be involved. I don't want the state to tell me how to parent and if they are limiting my ability to do so, I'll a. either move somewhere else or b. bring my own lawsuit against the state.
DeleteThank you for the post, Leigh Ann. These lawsuits against social media companies are fascinating, and I am sure more are coming.
ReplyDeleteI don't think the First Amendment would ultimately prevent the government from regulating social media companies. The U.S. government has a long history of regulating "socially harmful" products or content (e.g., pornography, hate speech, defamation, requiring content warnings on various forms of media, forcing age restrictions on products like alcohol and tobacco, not allowing certain not allowing tobacco companies to use campaigns that may be attractive to children (ala Joe Camel). The FCC has regulated public broadcasting for years - "Indecent and profane content are prohibited on broadcast TV and radio between 6 a.m. and 10 p.m., when there is a reasonable risk that children may be in the audience." (https://www.fcc.gov/sites/default/files/obscene_indecent_and_profane_broadcasts.pdf).
Property owners have a duty of care to maintain their property not only for invited guests but also for "anticipated trespassers" (https://americancourthouse.com/premises-liability-a-duty-of-reasonable-care/). That is something that has always amazed me.
A question I would have: what duty of care should be expected/required of social media companies as it pertains to their users? These companies have obviously created a product that is enticing to children. They collect data that can tell them how much time users spend on their platforms. They have been made aware that their platforms have been used, at times, to spread hate, coordinate criminal activity, and expose users to obscene or otherwise harmful content. They also have protection from much liability to regulate the content on their platforms.
Section 230 of the 1996 Communications Decency Act (CDA) --especially (c)(1) and (c)(2) offers these social media companies broad protections against the content found on their platforms (https://www.law.cornell.edu/uscode/text/47/230). Is it time to amend those sections to help protect children? Maybe that is a good topic for a final paper :)
Of course, I think parents need to be involved in their children's lives and take responsibility for the time they spend on social media. Governments limiting access to information is also something that makes me very nervous - though limiting the number of hours a Jr. High student can spend watching videos of people consuming Tide Pods or destroying school property makes me slightly less nervous.
I meant to put final paper for our Legal Writing class - not Prof. Dryer's class :)
DeleteI agree about parents taking responsibility and I wish more people would monitor their kids social media usage more. I know I regret letting my oldest kid get social media as young as she did. If I could go back I would absolutely make her wait until she was older.
DeleteI think that communities and schools can step in as well. When my son was in Junior High they had a huge problem with kids doing the "challenges" and destroying property, making bullying Instagram accounts to make fun of people, etc. They ended up banning the use of phones during school hours. The kids (and some parents) were so upset but ultimately it ended up being a good thing for the school and I loved that they stepped in when parents weren't doing it.
This case makes me wonder how evidence is weighed in trial. Is Utah obligated to collect data and present it as evidence that TikTok is causing harm to children? They would first need to prove that TikTok harms children... that may be difficult to do without years of study and peer review. Then, they would need to come up with some way to measure the amount of damage TikTok has done to children, which sounds almost speculative to me. Finally, they would have to prove that their measured data of "damages to children" is caused by TikTok in the manner that they proved TikTok hurts children. It seems like Utah is going to have a very difficult time with this case.
ReplyDeleteWhile I think TikTok does more harm than good, and social media exposure for children should be regulated, I think this may be government overreach until the data shows the damages. Just like cigarettes, gambling, sexual consent, etc. a certain age is at more risk than someone older, and these can be shown with data. Until that data exists for social media, Utah is overstepping based on assumption.
I agree, Michael. I had the same thought about the burden of proof that would be required to both prove that TikTok caused harm to children AND that they knew their product caused harm to children and still marketed it to them. If I read the code right it seems they would have to know it caused harm and market it anyway. Is there enough evidence that they knowingly did that? It makes me think of the class actions suits against cigarette companies. In those cases they were able to show that the cigarette manufacturers were aware of the physical damage that they caused.
DeleteAnecdotally I think we all know that social media causes harm to kids with undeveloped brains but I think it's all so new it's hard to show definitive proof of that (yet). I think a lot more will come out in time and we will all look back and wonder what we were thinking.
DeleteTristan Harris (formerly of Google) explains the psychology they used. He speaks of it publicly now. If anyone hasn't seen the Social Dilemma documentary on Netflix, here's the trailer...
https://youtu.be/uaaC57tcci0?si=ZC0n1gjlbgZujl_K
I think comparing TikTok and slot machines is a strong element in this lawsuit. As you mentioned, the addictive features of continuous engagement and rewards mechanism highlights the elements of the TikTok design that is considered addictive, like gambling. Whether this comparison can hold up in court will depend on the Attorney General's presentation of evidence and arguments. If he can prove this, then I think the claim that TikTok violates the Utah Consumer Sales Practice Act by making the app additive to minors and profiting from it is undeniable…
ReplyDeleteOf course, we can't talk about social media without addressing the First Amendment, but in this particular case, it seems like the premise of the suit is mostly about TikToks business practices rather than censoring speech, so I'm curious if/how this will be deliberated in court.
I am curious to see how this lawsuit will play out. This case is sure to open a can of worms because TikTok isn’t the only social media app that can be compared to a slot machine. Instagram and Facebook have “reels” and YouTube has “shorts” that are virtually identical to the way TikTok presents videos to users. I think that the Division of Consumer Protection will need to have concrete evidence of user addiction to support its claims in order to prevail in this case (or at least make a compelling argument). This case is sure to be an uphill battle because applications are specifically designed to keep users coming back (whether it be TikTok, YouTube, Instagram, Facebook, or even Pinterest).
ReplyDeleteCompletely agree. I thought the same thing when reading through the lawsuit. You could replace TikTok's name with any number of company names.
DeleteTikTok seems to be the easy target, given how quickly it has grown and the concerns about its parent company in Beijing. You can guarantee that other social media companies will closely follow lawsuits like this.
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ReplyDeleteThanks for your post, Leigh. When I was Hawaii, my classmate was seriously addicted to TikTok which bothered me little bit. I assumed only Polynesians are very attached to TikTok, but your post helped me to realize TikTok addiction is everywhere. I personally don't use Social Media and don't pay attention to the internet world so much, so I had no idea. I believe the State of Utah regulating TikTok does not infringe on someone's First Amendment rights. I think it's good a think they are doing that because people can get some bad influence using TikTok, especially minors.
ReplyDeleteHowever, I am also wondering how the State is measuring the level of harmfulness to minors. I think that can be a challenge to the State, but I am sure there is a way to examine, such as determining the state of mental health crisis of children. Even adults can receive the bad influence from the social platform as well, I am sure. Anyways, I am just glad that professionals recognize those issues and the State is taking an action.
Nice job, Leigh Ann! Perhaps this can be compared to the tobacco industry in the United States and the drastic change that has occurred during the last 40 years.
ReplyDeleteAmericans still have the freedom to smoke, but our societal behaviors involving smoking have changed dramatically through legislation, which ultimately has led to education, awareness, and a very different perspective.
Like the tobacco industry, this is a public health and education issue (at least as far as managing the addictive and mental health effects). Perhaps legal effort can include a focus on requiring education and awareness. Maybe there can be attention and funding spent on how to mitigate excessive use, much like Philip Morris is required to financially support anti-smoking and educational programs. There are many marketing and education mandates on tobacco companies here in the States that don't exist in other countries. In many parts of the world, outside the U.S., marketing cigarettes to children and young adults is still common and even encouraged as a way to create a life-long habit for the individual and increased revenue for the tobacco industry.
I don't think this should be limited to just TikTok.
Just for fun, and to illustrate how far we've come as a society, here's a cigarette ad from 60+ years ago involving cigarette endorsements by physicians....Enjoy!
https://youtu.be/PJBD91YJ4Z8?si=uY_gxGEs2WODOHSg
Here are a couple more.....
Deletehttps://youtu.be/KYsWZCf_YMw?si=vUI0FDhaUlZh6xHV
...and here's a trailer for the Netflix documentary where inventors of the social media platforms explain WHY and HOW they made Facebook, Twitter, and Pinterest addictive. Every one of them has a "swipe" for a reason. (...And now I will stop replying to my own comment. Hahahaha.)
Deletehttps://youtu.be/uaaC57tcci0?si=LkU5NxmaWWsoFkY0
Great blog post Leigh Ann! One thing I wondered while reading this was whether the state of Utah has standing in this case. I was just reading Justice Kagan's dissent in Biden v. Nebraska where she argued that the states didn't have standing to sue because the injury was not directly to the states in that case. I wonder if that logic could be applied here?
ReplyDeleteThis was also interesting to read as a TikTok user, especially the comparison to a slot machine. While I find it to be a great way to connect with others, especially friends, its unique algorithm does make it very hard to put down sometimes. (P.S. highly recommend setting a time limit for the app, it's a great reminder to stop swiping)
To address one of the questions you posited: I think proving the harm of the app will be difficult, especially because you have to argue that the harm is caused solely by the app, otherwise, the defendant will always have a scapegoat. I imagine a starting point will be statistics showing a correlation between TikTok usage and teenage depression/anxiety/etc. But even this leaves the door open for the defendant because simple correlation does not prove causation. A classic example in statistics classes is that even though ice cream sales and crime rates are positively correlated (they both increase during the summer), that doesn't mean one causes the other. Similarly, the defendant could argue that even though TikTok usage is correlated with teenage anxiety, the app doesn't necessarily cause it. Based on this, I think the state has an uphill battle ahead of them in this case.
A couple of things stuck out to me about this case.
ReplyDelete1- Since TikTok is a corporation, it has residency in Los Angeles, New York City, and Singapore. ByteDance has offices in San Francisco, Chicago, Austin (TX), and Washington D.C. Therefore, based on complete diversity jurisdiction and the amount in controversy exceeds $75,000 as stated in the Complaint, I would say this will likely be removed by the defendants to Federal Court.
2- In this case, there is also a federal question. Infringement on First Amendment rights of speech and expression.
3- Can Utah (the State) prove THEY have suffered an "injury in fact" and therefore have the Standing to sue?
4- Where do parental rights come into play here. My son uses TikTok, which we monitor with our permission.
These alleged harms stated in the complaint will be challenging to prove. Teens and adults using the app do so to express themselves; they exercise their right to free speech. When the government alleges this behavior harms their state consumers yet fails to include a consumer who can testify to that harm, it makes you wonder who they are trying to protect.
In the interest of finishing off my comments quickly so that I can get a couple of hours of sleep in ahead of my 10 hour shift at 6 am, I'll just briefly add to some of the earlier comments I made above.
ReplyDeleteIn general terms, we form habits because there is some benefit associated--whether that be dopamine-driven or not. Having a regular sleep schedule allows you to establish a more synchronous circadian rhythm--which is vital for a healthy lifestyle. Performing the same tasks at work helps you to be more efficient in the long term--even if they may feel tedious, or overtly repetitive. Social media is unique because it serves several functions at once--communication, a "break activity", and entertainment being just a couple such examples. Hence why out attention is so honed on notifications--our device is providing us information, but we don't know whether it's related to an urgent matter or not until we check the screen. Hence the "phantom vibration" or other related symptoms of smartphone overutilization.
The challenge, however, is that no one ever considered the ramifications of this phenomena on children. While tech companies may concede that children would be users at some point, they likely didn't imagine parents using the smartphone as the "TV" or "videogame" nanny of our childhoods. If they did, then they failed to perform due diligence in harm mitigation--but that's more a judgement of ethics/mores than of law at the inception of social media.
That being said, the tech is only gong to become more pervasive--which does challenge our 1st Amendment rights, and raise the question as to whether the "right to be forgotten"
and "right to life" should be codified constitutionally through the amendment process. I add "right to life" there because society will be tasked to determine whether "life", as we have come to understand it today, is fundamentally distinct from "life" as the Founders understood it to be. Not answers that are easy to discuss, nor simple to bring up in the current political climate. However, the day when these become national talking points isn't too far off in my eyes. And that's assuming that we don't see a huge boom in viable AR/XR/MR/VR tech that transforms what we can do in or natural environments (e.g., 3-D modeling without a computer, space tourism in a holographic avatar).
Nintendo, then Nintendo 64 was my nanny. I have won more World Series playing Bases Loaded 2 than I can count. So even as a Gen X'er, I can say that "Screen time" has been around since my childhood. The difference, and this adds another layer (or not) to the complexity of this case is the personal nature of screen time for kids today. My screen time was an old-time TV, with turn nobs to change the channel. Screen time for kids today is much more personal, hand-held, and incredibly mobile. Does this factor into the negative impacts or addictive tendencies, because now it is always with our kids?
ReplyDelete