Seattle School District Sues Social Media
Seattle School District Sues Social Media
Updates re: Jan 6 Committee, NARA Docs and Pres. Biden, and UAPs over Ukraine
In this Issue:
The Seattle Public School District filed a legal complaint against four social media companies representing five social media platforms, under the property legal claim of public nuisance.
Brief updates regarding January 6th Committee concluding its work, classified documents from President Biden’s time as Vice President discovered (and voluntarily turned over), and UAPs over Ukraine.
Poem for 2022.01.13
Out and About Photo for 2022.01.13
Programming Note:
Posting frequency may move to once a month (unless I feel otherwise compelled), as I will have less availability coming up to make posts than last year. The January 6th Committee Hearings bouyed a lot of content last year, and I find potential committees about certain Republican members interest in Hunter Biden’s member less mysterious and compelling to the state of the nation, and my political science interest.
Happy New Year!
-Garrett
Seattle School District Sues Social Media Companies for Public Nuisance
The Seattle Public School District (SPS) filed a 92-page complaint in Washington State Court alleging that social media companies have created a public nuisance in Seattle Public Schools by way of its students displaying addictive behavior, and other mental health disturbances, that cause or contribute to disruption of the SPS “educational mandate.” The district is seeking abatement of this “public nuisance” and monetary compensation for having to hire additional counselors and mental health staff, as well as having to create (or fund) media literacy curriculum for students.1
Given the legal theory, as well as its presentation of facts, I think the suit will have an uphill battle.
The underlying legal theory to the complaint is similar to SPS saying that students are smoking cigarettes, even at school, and therefore the cigarette companies are creating a nuisance on school property. The framing is somewhat like when the tobacco companies used Joe Camel in ads (which they knew minors were well aware), the social media companies should be liable for SPS student behavior at school and potentially outside of school. More specifically — for compensation of the school’s mitigation efforts and request to abate the nuisance (stop advertising/selling cigarettes to minors).
However, even that would be a tough sell under public nuisance law considering it is the students as the immediate cause creating the nuisances described by the plaintiff. Furthermore, in the tobacco example, cigarette use under 18 is illegal, social media is not (though it is regulated by the Federal Trade Commission using things like COPPA). It is also not clear that smoking cigarettes has any ‘good’ benefit, whereas the breadth and types of ‘social media’ identified by plaintiffs is more mixed. According to Pew Research, a majority of teens credit social media with strengthening their friendships and providing support while also noting the emotionally charged side of these platforms.
The SPS complaint is not brought on behalf of the students, it is not so much about student mental health, but the claim that the students act as a mere link in a chain of damage to SPS property rights stemming from social media platforms.
I was unable to find any case law involving a public nuisance property claim in Washington State involving party A (social media company) providing a legal service to party B (students) incurring liability from what party B then does on party C’s property (students at an SPS school). SPS is essentially identifying the students as the nusiance, or nuisance vector of the social media companies. Apparently, none of the attorneys in this case could find an on-point property case either, because by the time the cause of action is mentioned on page 85, there is just a partial restatement of the RCW for public nuisance.
The plaintiffs spend a considerable portion of the complaint directly referencing the appearance of potentially harmful content on social media. However, on page 83, the complaint specifies that the suit is not really about the existence of harmful content on a platform, but that the design of the social media platforms (look, feel, and algorithm) seeks to maximize the amount of time a user spends on them, which SPS alleges creates addictive behavior patterns. It is the addictive behavior at the root of this public nuisance complaint. This stance appears to be taken in anticipation of a social media company defense based on Section 230 of the Communications Decency Act that generally does not hold a platform liable as publisher for hosting content provided by a third-party.
While plaintiffs concede that much of the targeting/marketing/product design behavior they describe may not be illegal, they do try to claim that it can be particularly harmful to students and by extension to the school. It is important to point out that unlike other lawsuits brought by parents against social media companies, SPS is not claiming standing to sue in loco parentis (in place of the parents), but because SPS itself has had to spend its time and money to address problematic student behavior it alleges is caused by, or involving, student social media usage.2
Hurdles to Clear for Plaintiff
One problem I foresee is lack of supporting case law when it comes to public nuisance property complaints with this fact pattern. Secondly, the complaint currently lacks specificity as far as damages and costs incurred by SPS. There is reference to 5 million dollars that King County (which is the county that SPS is in) alloted to teen drug use and mental health broadly, but no breakdown as far its connection to the claimed social media-fluenza at SPS. There is reference to current counselor and mental health professional staffing levels, but no reference to prior levels to show what the increase has been or that they are necessarily tied directly to social media platform issues. Are these staffing levels simply getting to levels they should have been at in the first place, or otherwise part of regular or unrelated trends? Potential confounds abound that are ripe to exploit for the defense. There are studies cited that illustrate correlations of negative impacts on youth mental health, but not so much directly on SPS students apart from more vague statements about students “acting out” on school property and an increased rate at which they are needing to confiscate student devices.
The complaint also references curriculum created to educate students regarding social media usage. I found this part of the complaint particularly strange because social media is not new, and this is a school district with a broad educational mission. It should probably have been doing that already, simply as part of teaching contemporary media literacy. There are currently no specifics with regards to damages relating to potentially hiring outside expertise, or curriculum crafting.
The studies referenced in the complaint and the way they are referenced have their own potential problems. The complaint states 90% of 13-17 year olds use social media, as though that information itself is conclusive of an inherent problem:
As described below, each Defendant designed and marketed their exploitive
social media platform to be extremely popular with youth. And they have been successful. Ninety percent of children ages 13–17 use social media. [Footnote 7]
Footnote 7 links to a post on the American Academy of Child and Adolescent Psychology website from March 2018 that simply says “surveys show” (with no in-depth citation provided, or what the survey considered social media), and does not say 90% addictively use, but rather “have used” and are “online” in a generalized way:
Surveys show that ninety percent of teens ages 13-17 have used social media. Seventy five percent report having at least one active social media profile, and 51% report visiting a social media site at least daily. Two thirds of teens have their own mobile devices with internet capabilities. On average, teens are online almost nine hours a day, not including time for homework.
There is the issue as to what is meant by social media between the various studies and the defendant platforms. The complaint makes this factual claim:
Younger children also regularly use social media. One study reported 38 percent of children ages 8–12 used social media in 2021. [Footnote 8]
Footnote 8 links to a report from an advocacy group, Common Sense Media, which defines social media both more broadly to include message boards, differentiates “video sites,” and incorporates vague definitional terms in its report like “such as”:
Social media was defined in the survey as being sites such as Snapchat, Instagram, Discord, Reddit, or Facebook; platforms such as YouTube, TikTok, and Twitch were considered online video sites.
These statistical and definitional discrepancies appear to run throughout the complaint. Footnote 9 goes to a University of Michigan survey of parents, does not define social media at all, and includes “educational” social media material (whatever that means).
Probably the choppiest example in the complaint’s effort at narrative building is when it starts in on YouTube:
The most popular of these platforms is YouTube. A vast majority, 95 percent, of
children ages 13-17 have used YouTube. [Footnote 10]
The phrase “have used” does a lot of work throughout the SPS narrative of an uber-addictive social media. The cited Pew Research study shows that of the 95% of children ages 13-17 that have ever used YouTube, only 19% report they “almost constantly visit or use this app or site.” This tendency in the complaint to use the “have used” number from Pew versus what would appear to be the more problematic/addiction suggestive “almost constantly” number continues for the other platforms. The image below is what you find if you click through the footnotes to the Pew study.
Another potential problem for the plaintiffs is that YouTube has legitimate content. Many people increasingly prefer YouTube over cable television nowadays. It is unclear that this trend is indicative of anything other than YouTube’s popularity in supplanting traditional television more broadly. The unspoken or inferred claim here by SPS is that these teens should not be on YouTube at all — in other words, that YouTube is inherently bad. Probably with YouTube most of all, SPS does not do itself any favors in trying to get around Section 230 of the Communications Decency Act in its claim that this lawsuit is not about the content available on a platform but its design and marketing that so overwhelms the students as to be the “proximate and direct cause” of profound mental health harm that impacts the school district so severely that it rises to a novel public nuisance claim. The structure of the complaint suggests the harm is both content and content-neutral design features, but it tries to thread the needle in a way so as to avoid a Section 230 defense.
On page 68 of the complaint, SPS goes into YouTube changing its algorithm toward “valued watch time” — meaning watching one piece of content all the way through versus the prior model of promoting what gets clicked on. This is presented as evidence of nefarious building of addictive behavior. From the complaint:
In YouTube’s own words, this switch was successful. “These changes have so far proved very positive -- primarily less clicking, more watching. We saw the amount of time viewers spend watching videos across the site increase immediately[.]” [Footnote 308] And in 2016, YouTube started measuring “valued watchtime” via user surveys to ensure that viewers are satisfied with their time spent watching videos on YouTube.[Footnote 309] All of these changes to YouTube’s algorithms were made to ensure that users spend more time watching videos and ads.
What’s described sounds like nielsen ratings influenced television, but better because it apparently is increasing attention spans and/or giving viewers what they want? I found this one to be one of the more conceptually confused parts of the SPS complaint, because it really wants to nail YouTube for legal participation in the attention economy. It seems to me like this is going to be a particularly hard sell in pairing popularity, or usefulness (valued watchtime), with harm to its property rights via student addictive behavior.
Other Enforcement Mechanisms and Legislating from the Bench
COPPA, or the Children's Online Privacy Protection Act, is referenced throughout the SPS complaint. It shows past noncompliance and enforcement actions taken against social media companies for unlawful data management and advertising to children. While it makes for interesting reading, and highlights some of the garbage that supposedly ‘content-neutral’ algorithms have spit out at users, it is questionable to what extent those findings of past behavior can be used to ding social media platforms as they sit currently. The Federal Trade Commission (FTC) pursues enforcement actions against these platforms for COPPA violations, and State governments also have standing to bring a COPPA action. SPS does not have standing to go after the companies under COPPA directly. SPS would need to petition the FTC. The relevant portions of the complaint, including the Section 230 analysis, is going after ‘design’ and ‘content neutral’ algorithms they allege/demonstrate are directed at minors, which would seem to bring it into COPPA land.
A judge unwilling to play along with a property law claim of public nuisance could potentially say “wait a minute SPS, this claim is really a mask for what should be an administrative law COPPA petition with the FTC, have you exhausted the remedies available there first before filing this complaint in Washington State court?”
There is no evidence in the complaint that this has occurred, but I could see it getting tossed for being a bit too cute with the public nuisance property claim. As has occurred when public nuisance claims have been brought against opioid manufacturers in other parts of the U.S. Allegations about students becoming nuisances (or nuisance vectors?) on school property via the dark influence social media platforms notwithstanding. Additionally, the defendants could point to mitigation factors, such as claimed by Meta's global head of safety Antigone Davis:
“We've developed more than 30 tools to support teens and families, including supervision tools that let parents limit the amount of time their teens spend on Instagram, and age verification technology that helps teens have age-appropriate experiences,” Davis said. “We automatically set teens' accounts to private when they join Instagram, and we send notifications encouraging them to take regular breaks. We don't allow content that promotes suicide, self-harm or eating disorders, and of the content we remove or take action on, we identify over 99% of it before it's reported to us. We'll continue to work closely with experts, policymakers and parents on these important issues.”
The SPS prayer for relief includes “abatement of the nuisance.” The complaint’s depiction of social media platforms being not much more than attention exploitation similar to gambling/gaming suggests relief in the form of shutting down access to teens entirely. That is something I think a court would be reluctant to do, especially if the behavior is not otherwise illegal. An action that sweeping is probably more appropriate to have done through passing laws via the legislature.
There might be no dispute here between parties that youth being constantly online at least correlates statistically to poorer mental health and other negative outcomes. However, what’s being claimed by SPS is that there is direct causation to those outcomes such that it directly impacts the property rights of SPS in its function as an owner of school property, and that the social media companies, and not the actual students present (or their parents), should be held liable for what happens at school.
From a precedential standpoint, if SPS were to succeed then it would seem to be a tremendous expansion of school district power over the broader public. From a property law perspective, I have a hard time believing a judge would go along with the attenuated causation theory presented by SPS (party A liable for the behavior of party B while B is on party C’s property — absent variables like duress). When I read through the complaint, I was keeping an eye out for that legal support, but found none. Maybe the complaint will be amended at some point, but as it stands currently it really does appear to be more of a protest suit. Maybe it could be a win by losing so-to-speak for plaintiffs if it can garner some kind of legislative response? Though that legislative response will likely have nothing to do with the property law complaint of public nuisance.
Broader Discussion About Social Media
Frequently the social media discussion lumps all platforms together, which is odd to me, because they do not appear to have the same effect on users. Since 2009 there have been indications that not all social media platforms are the same, at least when it comes to improving basic measures of intelligence like working memory:
Video games that involve planning and strategy… may also train working memory, Dr. Alloway believes.
“I'm not saying they're good for your socialisation skills, but they do make you use your working memory,” she said.
“You're keeping track of past actions and mapping the actions you're going to take.”
Sudoku also stretched the working memory, as did keeping up with friends on Facebook, she said.
But the “instant” nature of texting, Twitter and YouTube was not healthy for working memory.
“On Twitter you receive an endless stream of information, but it's also very succinct,” said Dr Alloway. “You don't have to process that information. Your attention span is being reduced and you're not engaging your brain and improving nerve connections.”
She said there was evidence linking TV viewing with Attention Deficit Hyperactivity Disorder (ADHD) while extensive texting was associated with lower IQ scores.
Now, this was back in 2009, which was before YouTube transitioned to its “valued watchtime” model of content algorithms for less channel flipping. However, I could see an argument that given autoplay features it may be close to tracking with how traditional television can be in terms of passive (rather than actively choosing) content engagement.
Social media, like everything else seeking to exploit neuropsychology for profit (marketing), make people want things they do not need or might be unhealthy for them. You can only harm people if you can get to them, and social media connects more people than ever before. For someone to be bullied into self-harm or suicide, there has to be a bully or bullies. In this regard I think ill-effects of social media are more a case of amplification and not direct causation. I think this also makes it more appropriate for legislative solutions rather than litigation based on property claims.
In no way do I mean to paint a rosy picture of social media platforms and teens, but from a legal perspective, this complaint seems like a reach. SPS position appears to be that any social media use (however defined) is so inherently harmful and dangerous that it should be avoided altogether, this makes it seem like real abatement is essentially no social media for those under 18. Though the complaint does not say that explicitly — I do not know how else one truly abates the claimed nuisance here, especially if the primary underlying factor is that human social status seeking and approval is at peak levels in teenagers.
I do think it is important to draw distinctions between platforms (as my recent writing regarding Twitter demonstrates). The mental health ‘problem’ seems to be less the user generated content of platforms, than to what extent users are engaging in peer-to-peer comparisons and seeking validation from other users.
I am partial to the notion that smart phone + social media can capture student attention more than an english class. However, I’m not sure that I completely buy into the addiction qualities being on par with drugs just because a software engineer got their mind blown by picking up a marketing book that references the limbic system and the color red. From researcher Amy Orben in 2020 regarding screen time generally:
Screens are not drugs that have definite impacts on brain and behaviour; indeed, high-quality evidence that screens themselves do widespread harm is almost non-existent.
We should instead focus on what activities are engaged in via these screens. It’s the nature of the activities that screens help mediate that determines how we are affected by their use.
Content matters. As with any algorithm, especially when it comes to social media, the old adage GIGO still applies: garbage in, garbage out.
January 6th Committee Concludes
The January 6th Committee has concluded and published an 845 page report. In their last televised appearance, the Committee voted to approve making criminal referrals to the Department of Justice, including four charges against former President Trump relating obstruction of an official proceeding, conspiracy to defraud the United States, conspiracy to make a false statement, and insurrection.
A special counsel has been assigned, Jack Smith, who is ‘in charge’ of the DOJ investigation into former President Trump’s role in the insurrection as well as the (what appears to be unrelated) look into DJT’s battle against NARA, Grand Jury, and DOJ that wanted documents back from Mar-a-Lago.
It’s been nearly 20 years since my first real deep dive into Congressional Committees. For me it was the Pike and Church Congressional Committees of the post-Watergate era. I think those are still a wild ride if you’re interested in Cold War U.S. intelligence services and covert actions kept hidden from the American public. While I think the January 6th Committee helped marshal a timeline and fact pattern for a lot of what was going on, there was one area that it did not much get into. That area is what was going on with some of the agencies. After Pearl Harbor, there was this idea of not being surprised. However, in my life, the intelligence/domestic intelligence services do seem to get surprised — except when we eventually get a look at their records — and it often turns out they just don’t like talking to each other. My mentor in college was a guy that worked at the Department of the Navy before working in other areas of government (mostly back in the 1970s), and he was big on analyzing organizational culture and decision making. I remember one of his stories about some of the intel agencies is how they liked to schedule meetings either fifteen minutes past or fifteen minutes before the hour. To paraphrase, he said, “they always acted like they couldn’t ever schedule on the hour or half-hour because they’d have to go off and save the world, which they acted like could end at any moment but for them, even if we were just ordering lunch.”
Another thing to keep in mind is that a lot of what gets classified, is questionably related to protecting national security, and is more related to just covering ones own ass. For agencies tasked with not getting surprised, it’s my hunch their tendency to get ‘surprised’ often tends to be related to certain agency cultural norms getting exploited, or bad culture tendencies ignored.
Does anyone else have any classified documents they’d like to turn over to NARA?
Lawyers for President Joe Biden found a “small amount” of classified documents going back to Biden’s time as Vice President. They then promptly contacted NARA and are promising to cooperate fully with any investigation into the documents. The response is a lesson in contrast for attorneys with how to deal with NARA, let alone grand jury subpoenas and the Department of Justice regarding obstruction charges. Refresher:
According to the Justice Department, FBI agents were sent to search Mar-a-Lago only after attorneys for Trump repeatedly failed to return presidential records, including dozens of classified documents, that had been removed from the White House following the end of his term in January 2021 — allegedly failing to turn them over even after receiving a grand jury subpoena in May 2022. Attorneys for the government have said the documents recovered during the Mar-a-Lago raid were “likely concealed and removed” from a storage room as part of an effort to “obstruct the government’s investigation” into the potential mishandling of classified materials.
There’s not a lot of verified information at this time regarding content of the documents or classfication level. A special counsel has been assigned to investigate: Robert Hur.
UAPs Over Ukraine cont.
Last year I brought up a study from Ukrainian meteor scientists for the UAP issue that included a review of the film Nope. I wrote about the technological kit described in the paper, as well as my own reservations regarding what was in the paper.
The main question I currently have, is what are the dates of all these captures? Is everything from after the Russian invasion of Ukraine? If it was a long study, were certain times of year showing more UAPs than others? Also, it may be a translation issue, but they refer to at least some of these UAPs as “ships” and it is not clear why — as reasons for such a designation is not discussed directly in the paper itself.
Well the science bosses in Ukraine had similar concerns:
“The Scientific Council of the MAO of NASU believes that the information published in the aforementioned paper by B.E. Zhilyaev et al. was premature,” the observatory’s statement concludes, “and did not meet the professional requirements for publication of the results of scientific research.”
Lead author Zhilyaev said, “I can say that we are working on and planning a new publication.”
Poem for 2023.01.13
Rain whips on windows
Slippery moss covers steps
Red-green blossoms bud
Out and About Photo for 2023.01.13
Olympus Mini-Mons
FOOTNOTES FOR 2023.01.13
351. Plaintiff has had to take steps to mitigate the harm and disruption caused by Defendants’ conduct, including the following:
a. hiring additional personnel to address mental, emotional, and social health issues;
b. developing additional resources to address mental, emotional, and social health
issues;
c. increasing training for teachers and staff to identify students exhibiting symptoms
affecting their mental, emotional, and social health;
d. training teachers, staff, and members of the community about the harms caused by
Defendants’ wrongful conduct;
e. developing lesson plans to teach students about the dangers of using Defendants’
platforms;
f. educating students about the dangers of using Defendants’ platforms;
g. addressing property damaged as a result of students acting out because of mental,
social, and emotional problems Defendants’ conduct is causing;
h. increasing disciplinary services and time spent addressing bullying, harassment,
and threats;
i. confiscating devices on which students use Defendants’ platforms while in class
or on Plaintiff’s school campuses;
j. meeting with students and the parents of students caught using Defendants’
platforms at school or other disciplinary matters related to students’ use of Defendants’
platforms;
k. diverting time and resources from instruction activities to notify parents and
guardians of students’ behavioral issues and attendance;
l. investigating and responding to threats made against Plaintiff’s schools and
students over social media;
m. updating its student handbook to address use of Defendants’ platforms; and
n. updating school policies to address use of Defendants’ platforms.
346. But for Defendants’ actions, Plaintiff’s students would not use social media platforms as frequently or long as they do today, be deluged with exploitive and harmful content to the same degree, and the public health crisis that currently exists as a result of Defendants’ conduct would have been averted.
347. Logic, common sense, justice, policy, and precedent indicate Defendants’ unfair and deceptive conduct has caused the damage and harm complained of herein. Defendants knew or reasonably should have known that their design, promotion, and operation of their platforms would cause students to use their platforms excessively, that their marketing methods were designed to appeal to youth, and that their active efforts to increase youth use of their platforms were causing harm to youth and to schools, including youth in Seattle Public Schools.
Wow, very thorough. Well done.