When I wrote yesterday about Section 230 of the Communications Decency Act, I neglected to talk about software.
Software, like you and I, can be legal yet still be sued. That’s the weird trick prosecutors in New Mexico and Los Angeles just used against social media.
Prosecutors specifically attacked algorithms used by Google and Meta to keep users engaged. They called it addictive. They said the platforms hadn’t warned users of the algorithms’ dangers and are thus liable for any damage they cause.
The plaintiff’s bar is calling this “Big Tech’s Big Tobacco moment,” comparing it to cases a generation ago that showed tobacco companies knew they were killing people and did nothing about it. (This has yet to work with Big Oil.) Lawyers eventually pocketed $13 billion on the resulting $230 billion settlement. Critics called it “excessive” but compared to what lawyers make in traffic accidents it was a tip.
Lawyers all over America are salivating over the decision. Most of us use social media. We could all be plaintiffs. The New Mexico jury awarded $375 million to a single user. Do the math.
What Happens Now?
The good news is that social media may now be redesigned, with the default architecture bowdlerized and age verification required for all users, as with porn sites. (Maybe they’ll use the same systems and those systems will work.)
What does this mean for Netflix and the other video streamers, who also use recommendation engines to keep viewers hooked? If all you need to do is find one person against whom you can prove harm from a piece of popular software, can the industry even survive? That’s what the industry will argue, demanding government protect them.
In the present political environment, a lot of people are going to scream “NO!” But with analog news channels now all owned by Trumpist oligarchs where do you think that would leave us?
Om Malik also warns that Meta may simply evolve, creating new systems that look safer than their predecessors but are anything but. He compares it to the creation of vape pens like Juul, which evolved into THC vapes that are now getting teenagers tossed in jail.
As I said yesterday, most software must go through a lot of checks before it’s placed online. Transaction processors have lots of well-paid compliance programmers and bug testers to cover the constantly changing requirements. AI isn’t cutting those costs. Maybe Meta needs to start hiring again, and maybe X really will shut down. Maybe smaller players need never more apply to enter this field, the way Bluesky jumped in when Twitter died.
But, as I’ll discuss tomorrow, small companies have bigger problems than that.
