The Case Against Meta
Meta has lost every contest that reached a jury. And in a jury trial this week, for the first time, four states are expected to ask a federal judge to reach into the company and turn some stuff off.
A.I. Disclosure: I use LLM technology to help with research, fact-checking, document summaries, editing, and rewrites. I’m trying to use it responsibly, but I’m learning as I go. You can read my full ethics disclosure here.
I’ve been trying to boil this down all weekend. Here’s my best shot at it:
Twenty-nine state attorneys general say Facebook and Instagram collected personal information from children under thirteen without asking their parents, which a 1998 federal law called COPPA makes illegal. Four of those states — California, Colorado, Kentucky and New Jersey — go further. They say Meta built specific features it knew were hurting young users, and then told parents and Congress the opposite.
The four states aren’t just asking for a fine. They’re doing something new: they’re asking a federal judge to reach into the product and turn features off and change how Instagram works.
Opening statements begin this Tuesday, August 18, in the federal courthouse in Oakland, before Judge Yvonne Gonzalez Rogers. (Among many other cases this year, she also presided over Elon Musk and Sam Altman’s “who-founded-OpenAI” slugfest, which I covered as well.) Jury selection began last Wednesday. The trial is expected to run six to eight weeks, which puts a verdict in early October. Mark Zuckerberg is expected to testify. So is Adam Mosseri, who runs Instagram.
I’m Just Here for the Discovery
On June 29, in the same order that sent this case to trial, Judge Gonzalez Rogers denied Meta’s motions to seal. That means me and you and whoever else wants to gets to read whatever is submitted into evidence. Hell yeah.
Judge Gonzalez Rogers, in her ruling, held that labeling something confidential or proprietary does not establish a compelling reason to hide it. Three days earlier, at a June 26 hearing, she had warned counsel that she would not entertain sealing requests without a specifically identified reason. Names and email addresses of individual employees stay sealed, sure. But the substance does not. You can’t just say it’s a business secret.
For four years this litigation kicked off only fragments of documents — a footnote here, a redacted exhibit there, a paragraph in a Senate hearing. The company that generates substantially all of its revenue from advertising on Facebook and Instagram has been fighting, filing by filing, to control what of its own internal research about teenagers the public gets to read.
That fight is over, at least as a general matter. A seven-week trial with this sealing posture produces documents. So that’s where I get excited.
The Receipts Are In: Inside Big Tech's Battle for Your Kids
In podcast after podcast, I’m asked what I think we can do about the power of Big Tech. It typically comes after a long, dark hour of detailing the effects of A.I. on our minds, and the lessons we can take from past eras in fighting back. And my argument is always the same:
We already have some sense of what’s in store. Somewhere in the exhibits is an internal Meta document, for instance, cited by the judge in her order, reporting that millions of teenagers are on Facebook and Instagram between midnight and four in the morning, every week.
Another internal document, cited in the same order, describes those tools as proof points that weren’t effective at reducing the behavior. That’s the stuff I want to read.
Now, on to Meta’s chances.
Meta’s Record So Far
Over and over in these cases, the question has been: can a company be held responsible for how it built a product, rather than for what users posted on it? Because the latter is something they’re protected against, under Section 230. But the former is what all these trials are sorting out. Here is where that question stands for Meta after a lot of trips to court.
Notice who is missing from that table. Snap settled with the first bellwether plaintiff in January. TikTok settled five days later, the day jury selection began. In the second bellwether, YouTube settled, then TikTok, then Snap — a week before trial. Meta and YouTube are the only companies in this litigation that let juries rule on its product. But Meta has done that twice and lost twice. So let’s talk strategy, and what its path to victory or defeat in California might look like.
Why Hasn’t Meta Settled?
Here’s my theory. As I read it — and I’m no lawyer, as I hope I’ve made clear by now —
