This is proposed legislative text creating a new statutory tort for addictive tech design. If you are interested in introducing the bill, please contact Hayden Davis at hdavis@endaddictivetech.org.
This chapter shall be known and may be cited as the “Accountability for Addictive Design Act.”
As used in this chapter, the following terms have the following meanings:
(a) “Compulsive use” means the repeated, excessive use of a covered platform that is difficult to stop or reduce even when the user desires to do so.
(b) “Consumer” means an individual who is a resident of [jurisdiction], but does not include an individual acting in a commercial or employment context or as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, nonprofit, or government agency whose communications or transactions with the covered platform occur solely within the context of that individual’s role with the company, partnership, sole proprietorship, nonprofit, or government agency.
(c) “Covered business” means a sole proprietorship, partnership, limited liability company, corporation, association, other legal entity, or an affiliate thereof, that:
(1) Owns, operates, or provides a covered platform to a consumer while that consumer is physically located in [jurisdiction];
(2) Generates $50,000,000 or more in annual revenue; and
(3) Generates at least some of its revenue from the collection or sale of consumers’ personal data or from displaying advertisements to consumers.
(d) “Covered platform” means a social media platform that had 50,000,000 or more monthly active users for not fewer than 3 of the 12 months immediately preceding the filing of an action under this chapter.
(e) “Design” of a covered platform means the method of organizing and presenting content to users, including:
(1) User interface features such as infinite scroll or playing content automatically without new input from the user;
(2) The use of intermittent variable rewards schedules in the product;
(3) Algorithmic recommendation systems used to prioritize, recommend or sort content;
(4) Rewards or incentives for frequency of visits or time spent on the covered platform;
(5) The use of notifications or push alerts, including the timing and batching of such notifications and alerts; and
(6) The format of the content hosted on the platform, but only insofar as the format is required or otherwise incentivized by the platform, such as a limit on the length of videos hosted or a limit on the amount of time for which content is available.
(f) “Excessive” means to a level that substantially limits one or more major life activities of the user, including sleeping, eating, learning, reading, concentrating, communicating, socializing, or working.
(g) “Social media platform” means a public or semi-public internet-based service or application that is primarily intended to connect and allow users to create, share, and view user-generated content, provided that a service or application is not considered a “social media platform” if it:
(1) Exclusively provides email or direct messaging services; or
(2) Is used by and under the direction of an educational entity, including a learning management system or a student engagement program.
(h) “Personal data” means any information, including derived data and unique identifiers, that is linked or reasonably linkable, alone or in combination with other information, to an identified or identifiable individual or to a device that identifies, is linked to, or is reasonably linkable to an individual or one or more individuals in a household.
(a) A covered business has a duty to take all reasonable care in designing and deploying a covered platform to ensure the covered platform does not cause compulsive use by a consumer.
(b) A covered business breaches the duty established in subsection (a) of this section by deploying a covered platform that poses an unreasonable risk of compulsive use.
(c) A covered platform poses an unreasonable risk of compulsive use if:
(1) A reasonable alternative design for the covered platform was available for which the risk of causing compulsive use would have been lower; or
(2) Even when no reasonable alternative design was available, the covered platform’s risk of causing compulsive use substantially outweighed the covered platform’s utility to consumers.
(d) A covered business’s decision to host, or refuse to host, any third-party content on its covered platform shall not constitute a breach of the duty established in subsection (a) of this section.
(e) Warnings or disclaimers by a covered business shall not satisfy the duty established in subsection (a) of this section.
(a) Liability. A covered business that breaches its duty of care under Section 3 of this chapter shall be liable to any consumer who suffers compulsive use of its covered platform as a result.
(b) Damages. A consumer who prevails in an action brought under subsection (a) of this section is entitled to monetary damages of $1,000.
(c) Statute of limitations. A consumer may not bring a claim nor be eligible as a class member under this chapter for an injury that occurred more than two years before the date of the filing of the action.
(d) Safe harbor date. Only a breach that occurred on or after [effective date] may serve as the basis for a claim under this chapter. However:
(1) A covered business may not use the fact that its conduct before [effective date] caused or contributed to the consumer’s compulsive use as a defense to a claim brought under this chapter alleging a breach that occurred on or after [effective date]; and
(2) This subsection shall not serve to prevent evidence of design features and practices in use before [effective date] from being introduced as evidence, including to show that a reasonable alternative design to any design deployed by the covered business on or after [effective date] was available.
(e) Preclusion of duplicative claiming for ongoing compulsive use. A consumer who was awarded damages in a prior action brought under this chapter may not bring an action, including as a class member, for compulsive use of the same covered platform, unless the consumer can prove:
(1) That the consumer has continued to suffer from compulsive use of the covered platform since the prior action concluded; and
(2) The consumer’s continued compulsive use was caused or substantially worsened by new design features of the covered platform or other conduct of the covered business that were not, and could not reasonably have been, the basis for the prior action.
(f) Jury trial. There is a right to a jury at the trial of an action on the merits under this chapter.
(g) Product status of social media platforms. Social media platforms are products for the purpose of products liability actions.
(h) Restriction on fault defenses. In an action brought under this chapter, a consumer’s use of or engagement with a covered platform shall not constitute contributory negligence, comparative fault, assumption of risk, or failure to mitigate damages.
(i) Rules of construction. This chapter shall not be read to permit any claim to proceed that would:
(1) Violate 47 U.S.C. § 230; or
(2) Violate the First Amendment of the United States Constitution.
(a) Proving injury in class actions. In an action under Section 4 of this chapter certified as a class action, any class member other than the class representatives shall be deemed to have suffered from compulsive use if their use meets the objective criteria established by the court under subsection (b) of this section.
(b) Establishing objective criteria for per se compulsive use. In an action under Section 4 of this chapter certified as a class action, provided at least thirty class representatives have individually proven they suffered from compulsive use of the defendant’s covered platform, the court shall establish objective criteria for the level or manner of use of the covered platform that shall constitute per se evidence of compulsive use. These objective criteria:
(1) Shall be informed by the level or manner of use of the class representatives;
(2) May be determined with the assistance of a special master or by delegation to the jury; and
(3) Shall take the form, individually or in combination, of:
(i) The total, average, minimum, or maximum time spent on the covered platform at specific intervals (such as each day, each week, or in the entirety) over a specified period (such as the six months immediately preceding commencement of the action);
(ii) Patterns of use, such as regular sessions of extended use, using the covered platform a certain number of times per day over a specific period, or repeated uninstallation and reinstallation of the covered platform; or
(iii) Other metrics the court deems appropriate.
(c) The court may order the defendant to assist with identification or notification of class members, including by using the data covered platforms are required to keep under Section 7 of this chapter.
(d) Cy pres awards. In a class action brought under this chapter, damages may be awarded cy pres when the distribution of monetary damages to individual class members is impractical or impossible, including in cases where the identities of class members cannot be determined.
(a) Authority of Attorney General. The Attorney General may bring an action in the name of [jurisdiction] against a covered business to enjoin an ongoing breach of a covered business’ duty under Section 3 of this chapter to consumers.
(b) Relief. In bringing a claim under this action, the Attorney General may obtain:
(1) An injunction enjoining the breaching conduct; and
(2) A monetary award to cover the reasonable costs of bringing the action.
(c) Jury trial. There is a right to a jury at the trial of an action on the merits under this section.
(a) A covered business that operates a covered platform shall retain, for two years, the following data on each consumer or consumer’s account of its covered platform:
(1) The total amount of time the user has spent on the covered platform;
(2) For each day, the amount of time the user spent on the covered platform;
(3) For each day, the number of times the user accessed the covered platform;
(4) For each day, the user’s average session length on the covered platform;
(5) The user’s activation of any features within the covered platform designed to limit the user’s time spent on the covered platform, including limiting what times of day the user can access the covered platform;
(6) Any attempts by the user to non-permanently suspend or deactivate their account; and
(7) Any requests by the user to turn off any type of notifications from the covered platform.
(b) A covered business shall provide a report containing all data collected under subsection (a) of this section about a specific consumer or consumer’s account to that consumer upon the consumer’s request. Such report must be provided in a reasonably accessible and shareable format and in no more than five business days from the date of the request.
(c) To facilitate the requesting of data by a consumer under subsection (b) of this section, a covered business must, for each covered platform it operates:
(1) Make easily accessible on the covered platform’s website a form to request this data; and
(2) Not charge any fee for requesting or receiving this data.
(d) Upon the request of a court hearing an action brought under this chapter, a covered business shall provide data collected under subsection (a) of this section to the court in any form the court reasonably requests, except that such data shall be stripped of any personally identifiable information unless the individual consumer identified therein has given their consent to be identified.
(e) If a covered business fails to provide data in accordance with this section, the court in an action brought under this chapter against the covered business shall draw an adverse inference against the covered business when determining whether the consumer has suffered from compulsive use, unless the covered business can show extraordinary circumstances that made retaining or providing this data unreasonable or unduly burdensome.
(a) Notwithstanding the terms of any contract between a consumer and a covered business or its covered platform:
(1) Any action brought by a consumer under this chapter may be brought in the courts of this State;
(2) The law of this State shall apply to any action or proceeding brought under this chapter;
(3) The duty of care or the right to bring an action under this chapter may not be waived by a consumer.
(4) A consumer has a right to have any claim brought under this chapter heard and adjudicated in a reasonably timely manner.
(b) An action brought under this chapter may not be transferred from another venue, including a private arbitral forum, to [small claims court] if:
(1) The consumer did not request the transfer and does not consent to having their claim heard in [small claims court] at the time the transfer is to occur; and
(2) A contract between the consumer and the covered business prohibited the consumer from bringing the claim in a judicial venue within this State that both:
(i) Allows for the aggregation of claims by multiple claimants; and
(ii) Has authority to award the full amount of monetary damages authorized by this chapter.
(c) A contract between a consumer and a covered business or its covered platform may not be enforced to:
(1) Limit the consumer’s choice of counsel in bringing a claim under this chapter;
(2) Waive the right to bring a claim under this chapter as part of a class when such waiver would necessarily cause the consumer to incur a greater financial cost in filing the claim and paying any other fees to the venue than would be incurred by the consumer were the action permitted to be filed as a class action in federal court or the courts of this State;
(3) In cases where the contract requires that claims be resolved through arbitration, impose any barriers that are likely to prevent or impede a consumer from bringing a claim under this chapter in an arbitral forum, including by requiring any sort of pre-arbitration dispute resolution before the consumer can bring a claim in the arbitral forum; or
(4) Impose penalties beyond those permitted elsewhere in federal or [State] law on a consumer for:
(i) Bringing a frivolous claim, except that such a contract may provide for the awarding of reasonable attorneys’ fees in such cases; or
(ii) Recovering less after an adjudication on the merits than was previously offered by the covered business as a settlement that the consumer rejected.
(d) Nothing in this section shall limit the ability of a consumer and a covered business to agree to resolve any claim brought under this chapter through arbitration in accordance with the Federal Arbitration Act.
A covered business shall not, without the consumer’s consent, discriminate or retaliate against any consumer, including denying products or services, charging different prices or rates for products or services, or providing lower quality products or services to the consumer than to other consumers, for bringing an action under this chapter.
Nothing in this chapter shall be construed to prohibit or limit any other cause of action that a person may have against the provider of a covered platform, or to otherwise infringe on the existing rights and freedoms of consumers.
All dollar figures used in this chapter are to be adjusted annually for inflation based on the consumer price index published by the United States Department of Labor, or its successor or appropriate replacement index, commencing on [date of enactment].
This provisions of this chapter shall take effect on [effective date].
If any clause, sentence, paragraph, subsection, or section, or part of this Act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subsection, section, or part directly involved in the controversy in which such judgment shall have been rendered. It is the intent of the legislature that this Act would have been enacted even if such invalid provisions had not been included herein.