This is proposed legislative text creating a new statutory tort for addictive tech design, enabling consumers to sue social media giants for causing compulsive use.
This chapter shall be known and may be cited as the “Addictive Tech Accountability Act.”
As used in this chapter, the following terms have the following meanings:
(a) “Affiliate” means a legal entity that shares common branding with another legal entity or controls, is controlled by, or is under common control with another legal entity. As used in this definition, “control” or “controlled” means:
(1) Ownership of, or the power to vote, more than 50 percent of the outstanding shares of any class of voting security of a company;
(2) Control in any manner over the election of a majority of the directors or of individuals exercising similar functions; or
(3) The power to exercise controlling influence over the management of a company.
(b) “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.
(c) “Consumer” means an individual who is a resident of [jurisdiction], but does not include an individual whose communications or transactions with the covered platform occur solely within a commercial context.
(d) “Covered business” means a sole proprietorship, partnership, limited liability company, corporation, association, other legal entity, or an affiliate thereof, that:
(1) Owns or operates a covered platform that is accessed by a consumer while that consumer is physically located in [jurisdiction];
(2) Generated $50,000,000 or more in revenue in the preceding 12 months; and
(3) Generates at least some of its revenue from the collection or sale of consumers’ personal data or from displaying advertisements to consumers.
(e) “Covered platform” means a social media platform that had 50,000,000 or more monthly active users for not fewer than 3 of the preceding 12 months.
(f) “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.
(g) “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.
(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.
(i) “Reasonable alternative design” means a design of a covered platform other than the design actually used, including a modification to or combination of one or more design features, that:
(1) Would have reduced the risk of compulsive use to consumers; and
(2) Would not have reduced the covered platform’s utility to consumers by an amount that outweighs the reduction in the risk of compulsive use.
(j) “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.
(k) “Utility to consumers” means the benefits received by consumers from the covered platform, such as the ability to find content they seek and to communicate with others. It does not include data collection or revenue the covered platform generates for the covered business, or the consumer’s engagement or time spent.
(a) A covered business has a duty to take all reasonable care in designing and deploying a covered platform to prevent compulsive use of the covered platform by a consumer.
(b) A covered business breaches the duty established in subsection (a) 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 that would have substantially reduced the risk of compulsive use; 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).
(e) Warnings or disclaimers by a covered business shall not satisfy the duty established in subsection (a).
(a) Liability. A covered business that breaches its duty of care under Section 3 shall be liable to any consumer who suffers compulsive use of its covered platform, if the covered business’s breach was a substantial factor in causing or exacerbating the consumer’s compulsive use.
(b) Damages. A consumer who prevails in a claim brought under subsection (a) is entitled to monetary damages of $2,000. However, if the trier of fact determines that the defendant intended to cause, or recklessly disregarded the risk of, compulsive use, it may increase the amount of damages up to three times this amount.
(c) Attorney fees. A consumer who prevails in a claim brought under subsection (a) shall also be awarded reasonable attorneys’ fees and costs.
(d) Statute of limitations. A consumer may only bring a claim under this chapter if the breach of the duty of care upon which the consumer’s claim is based occurred within the two years immediately preceding the filing of the action, and if the consumer suffered compulsive use within the two years immediately preceding the filing. Such a claim shall be deemed timely filed even if the breach and injury first occurred more than two years before the filing, provided the breach and injury were ongoing within the two years immediately preceding the filing.
(e) Safe harbor date. Only a breach of the duty of care established in Section 3 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.
(f) Coverage determined at time of breach. In an action brought under this chapter, a defendant shall be deemed a covered business if the defendant qualified as a covered business at the time the breach asserted in the claim occurred.
(g) 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 suffered from compulsive use of the covered platform since the prior action concluded; and
(2) The consumer’s continued compulsive use was caused by:
(i) 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; or
(ii) The covered business’s failure to correct its breach of the duty of care that served as the basis for the prior action within one year after the prior action concluded.
(h) Jury trial. There is a right to a jury at the trial of an action brought under this chapter.
(g) Product status of social media platforms. Social media platforms are products for the purpose of products liability actions.
(i) Restriction on fault defenses. In an action brought under this chapter, a consumer’s use of, or engagement with, a covered platform even despite warnings of risks shall not constitute contributory negligence, comparative fault, assumption of risk, or failure to mitigate damages, or otherwise reduce the covered business’s liability under this chapter. The damages awarded under subsection (b) shall not be reduced or apportioned on the basis of the fault of any other person, including a parent or guardian of the consumer or the operator of any other platform.
(j) 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) Presumption of compulsive use based on objective criteria. In any action or proceeding under this chapter, a consumer whose use of a covered platform meets the objective criteria established under subsections (b) or (c) is presumed to have suffered compulsive use of that covered platform. The covered business may rebut this presumption by a preponderance of the evidence.
(b) Objective criteria for compulsive use. In an action or proceeding under this chapter, the trier of fact shall determine one or more sets of objective criteria that are sufficiently indicative of compulsive use of the defendant’s covered platform as to make it more likely than not that any consumer who meets the objective criteria suffered compulsive use of the covered platform. These objective criteria:
(1) Shall be informed by expert and other evidence regarding use patterns of the covered platform that indicate compulsive use; and
(2) May be based on any one or a combination of:
(i) The total time spent, or average time spent at specific intervals (such as daily or weekly), on the covered platform 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, regularly using the covered platform at certain times of day (such as during the work or school day, or at night), or accessing the covered platform a certain number of times per day during a specified period; or
(iii) Other metrics the trier of fact deems appropriate and probative.
(c) Objective criteria for excessive use. In an action or proceeding under this chapter, the trier of fact may also determine objective criteria that are sufficiently indicative of excessive use as to make it more likely than not that any consumer who meets the objective criteria used the covered platform to an excessive level. Such objective criteria indicating excessive use shall be sufficient to create a presumption of compulsive use under subsection (a) if accompanied by any of the following indicators that the consumer had a desire to stop or reduce this excessive use of the covered platform but was unable to do so:
(1) Repeated uninstallation and reinstallation of the covered platform’s application on a device;
(2) Attempts to suspend or deactivate the consumer’s account on the covered platform followed by reactivation;
(3) The consumer’s activation of a feature designed to limit time spent on the covered platform and subsequent override of these limits; or
(4) A statement made by the consumer under penalty of perjury that the consumer sought to stop or reduce their use of the covered platform and found it difficult to do so.
(d) Differing sets of objective criteria. The trier of fact may establish different sets of objective criteria under subsections (b) and (c) for different categories of consumers, such as establishing different objective criteria for minor consumers or for consumers who use the covered platform professionally.
(e) Assistance of special master. The court may appoint a special master to assist the trier of fact in determining the objective criteria under subsections (b) and (c).
(f) Presumption of causation. When a covered business has been found to have breached its duty of care under Section 3 by designing and deploying a covered platform that poses an unreasonable risk of compulsive use, and a consumer exposed to the design found to be in breach suffers compulsive use of that covered platform, the covered business’s breach is presumed to be a substantial factor in causing or exacerbating the consumer’s compulsive use. The covered business may rebut this presumption by a preponderance of the evidence.
(g) Criteria established in prior judgments. Objective criteria creating a presumption of compulsive use under this section that were established in a final judgment against a covered business, including a judgment confirming an award in arbitration, may be used by any consumer in any subsequent proceeding under this chapter against the covered business and concerning the same covered platform to establish the presumption under subsection (a) that the consumer suffered compulsive use. However, this subsection shall not apply if the covered business:
(1) Shows that changes to the design of the covered platform since the prior judgment have materially altered the use patterns on which the objective criteria were based; or
(2) Provides material new evidence that undermines the objective criteria’s reliability.
(a) Class actions authorized. Actions under Section 4 may be brought on behalf of a class. The potential aggregate amount of statutory damages shall not be a ground for denying class certification.
(b) Class-wide adjudication. In a class action under this chapter, both the existence of a breach and the number of class members who meet the objective criteria to be presumed to have suffered compulsive use in accordance with Section 5 may be determined on a class-wide basis, including through statistical evidence and data retained by a covered business in accordance with Section 7. Whether an individual class member is entitled to damages, including whether the class member actually meets the objective criteria and whether the covered business has rebutted any presumption arising under Section 5 as to that class member, may also be determined through a court-supervised claims process in which the covered business may contest individual claims.
(c) Notification of class members. 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.
(d) Cy pres awards. In a class action brought under this chapter, any portion of damages may be awarded cy pres when the distribution of monetary damages to individual class members is impracticable.
(a) A covered business that operates a covered platform shall retain, for two years, the following data for each consumer, or each user account of a consumer, on 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 average time spent on the covered platform at different times of day;
(6) The user’s activation or deactivation of any features within the covered platform designed to limit the user’s time spent on the covered platform, including features limiting what times of day the user can access the covered platform;
(7) Any attempts by the user to non-permanently suspend or deactivate their account;
(8) Any requests by the user to turn off any type of notifications from the covered platform; and
(9) Any other use metrics the Attorney General, in rulemaking, identifies as necessary for companies to retain data on in order to facilitate efficient identification of plaintiffs in future actions under this chapter, provided that in making such rulemaking the Attorney General shall consider the economic and technical feasibility of requiring covered businesses to retain such data, and the privacy implications for consumers of doing so
(b) A covered business shall provide a report containing all data collected under subsection (a) about a specific consumer or consumer’s account to that consumer upon the consumer’s request. Such report must be provided to the consumer in a reasonably accessible and shareable electronic format and in real time, or, if providing such a report in real time is not technically feasible, 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), 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) 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 to the court.
(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:
(1) The law of this State shall apply to any action or proceeding brought under this chapter;
(2) Neither the duty of care nor the right to seek relief under this chapter may be waived by a consumer; and
(3) A covered business may not, without the consent of the consumer given after the claim was filed, elect or otherwise cause a claim under this chapter to be resolved in [small claims court] in place of the forum in which the consumer filed the claim.
(b) A contract between a consumer and a covered business may not be enforced to:
(1) Limit the consumer’s choice of counsel in bringing a claim under this chapter;
(2) Prohibit claims under this chapter from being aggregated or brought as a class action, subject to the limitation in subsection (d);
(3) Require a claim under this chapter be brought in a venue outside of the United States, or in a venue that does not allow for claims to be consolidated as a class action, subject to the limitation in subsection (d);
(4) Require a consumer to file any form of notice with the covered business, or satisfy any other procedural requirement, before filing a claim under this chapter, beyond those elsewhere provided in law;
(5) Impose penalties, including the shifting of fees or costs, beyond those permitted elsewhere in 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.
(c) If a contract drafted by a covered business requires that a consumer’s claim under this chapter be brought in a forum other than a court of this State, the covered business shall pay, as they come due, all fees charged by the forum for filing, administering, or hearing the claim, including those that would otherwise be owed by the consumer.
(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 insofar as such agreements are protected by the Federal Arbitration Act.
A covered business shall not 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 or exercising any rights 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].
The 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.
To request a PDF or editable text version of the Addictive Tech Accountability Act, or if you are interested in introducing the bill, please contact Hayden Davis at hayden.davis@endaddictivetech.org.