by Scott Harshbarger and Dennis Aftergut
November 18, 2021
2016 Presidential Elections, 2020 presidential election, elections, Facebook, human trafficking, Litigation
by Scott Harshbarger and Dennis Aftergut
November 18, 2021
Twenty-three years ago, 46 states, private parties, and Big Tobacco reached the largest settlement of civil litigation claims in American history. Under that agreement, and related settlements with the other four states, the tobacco companies bound themselves to a host of restrictions on their marketing practices and have paid the states more than $200 billion.
That historic, bipartisan action should provide a blueprint for today’s state attorneys general (AGs) some of whom are investigating collective legal action against Facebook (re-named “Meta” on October 28, but we’ll continue to call it Facebook here). On Nov. 16, Ohio’s attorney general became the first to file such a lawsuit. Like the states’ tobacco lawsuits, the claims against Facebook will likely focus on deception relating to predatory marketing practices directly targeting children. Here, however, the claims should also go to Facebook’s role in enabling threats to national security, particularly in the radicalized unrest and violence that showed up in the Capitol riot of Jan. 6.
One of us (Harshbarger) was the Massachusetts attorney general who signed the 1998 nation-wide Big Tobacco Master Settlement. The other (Aftergut) worked on the case in California.
The litigation was remarkably effective. Under the 1998 settlement, the major tobacco companies, including Phillip Morris and RJ Reynolds, agreed to pay billions yearly to compensate states for health costs of smoking and to stop ads aimed at kids. Dramatic results ensued. For example, the annual portion of eighth graders who had smoked the month before being surveyed steadily dropped from 19 percent in 1998 to 2 percent in 2020.
The suits were brought under consumer protection laws that impose corporate liability for deceptive, unfair, or unconscionable business practices. In states like California, where Facebook is headquartered and where the Ohio suit has been filed, courts define unfair business practices broadly to include those that violate public policy. Promoting an insurrection for profit does just that.
The central theme of the 1990s litigation was that Big Tobacco deceived the public for competitive advantage and to avoid regulation. The industry offered false assurances when in fact its marketing practices were deliberately designed to produce nicotine dependency in young people for profit. Whistleblowers and millions of pages of documents produced in litigation proved the fraud. (Indeed, more whistleblowers came forward as the litigation proceeded, as those with pertinent information saw the potential effectiveness of their speaking out.)
Fast forward 23 years, and it’s déjà vu all over again. Over the past months, whistleblower Frances Haugen, a former Facebook product manager, has disclosed documents that strongly suggest that Facebook CEO Mark Zuckerberg’s statements to Congress and the public were designed to lull them into believing, falsely, that the harms caused by the company’s products were either minimal, unavoidable, or being contained sufficiently by current company policies. Haugen’s disclosures show that none of that was true.
Like Big Tobacco CEOs, Zuckerberg repeatedly but wrongly claimed that the company had turned to policing itself well. In 2018, Zuckerberg acknowledged to Congress that the company “didn’t take a broad enough view of our responsibility, and that was a big mistake.” He said, “We need to now take a more active view in policing the ecosystem and in … making sure that all of the members in our community are using these tools in a way that’s going to be good and healthy.”
The new whistleblower documents make those pledges look like duplicity, particularly given Zuckerberg’s prioritizing massive revenue growth at the expense of children’s health and safety, and the integrity of democracy. In 2017, Facebook communications officer Tucker Bounds allegedly predicted that Congressional attention “will be a flash in the pan. … Meanwhile we are printing money in the basement.”
The financial success rolls on. Facebook just reported quarterly revenues of $29 billion. And they’ve done it, like Big Tobacco, by continuing behavior damaging to the public after they knew it was harmful.
In the Big Tobacco case, the AGs faced a major legal obstacle that they overcame – the companies’ claims of federal statutory preemption under the 1966 federal cigarette labeling law and its later amendments. Here, too, a lawsuit would need to reckon with a serious federal statutory hurdle. Section 230 of the Decency Act of 1996 broadly immunizes internet providers from liability for transmitting content posted by others. The Second Circuit has applied that provision to Facebook’s use of algorithms to suggest content to its users.
Section 230 contains, however, a promising loophole for the AG action proposed here. Liability is not barred for actions under state law that are “consistent with” Section 230. A strong argument is available that a lawsuit against Facebook based on state consumer laws that prohibit deceiving the public is “consistent with” §230’s immunity for a “publisher” of content. Nothing in that protection shields public misrepresentations about a providers’ intention and ability to reform itself without regulation.
In the 1990s, the AGs often spoke of the tobacco companies’ “3 Big Lies”: that 1) it was unproven that smoking caused cancer and death; 2) nicotine was not addictive and therefore smoking was a personal choice; and 3) Big Tobacco did not market unlawfully. In parallel fashion today, Facebook’s promises to change its ways look deceitful as to three unconscionable business practices that it knew about and has failed to stop.
Haugen’s revelations tell of Facebook promoting political polarity of the kind that led to the Jan. 6 insurrection. According to company’s internal researchers, its algorithm for multiplying MSI – “meaningful social interaction,” Zuckerberg’s term for engaged social media traffic – was exponentially increasing political rage: “Misinformation, toxicity, and violent content are inordinately prevalent among reshares.”
In June 2019, Facebook researchers apparently created a user with the profile of a North Carolina mom who liked Fox News and Donald Trump. Within two days, though she expressed no affinity for conspiracy theories, she was driven to a site for Q-Anon, the false conspiracy-touting website. Q-Anon loyalty is a recurring theme among dozens arrested in connection with Jan. 6.
An October 27 study of the rightwing militia group Oath Keepers’ emails by Mother Jones Magazine concluded that Facebook was the most common route to membership. Four Oath Keepers have pleaded guilty for participating in the Jan. 6 insurrection.
Months earlier, in April 2020, Zuckerberg resisted proposed changes based on warnings about the divisiveness Facebook was curating: “Mark doesn’t think we could go broad” with the fix. “We wouldn’t launch if there was a material MSI impact,”
Facebook was evidently willing to accelerate the degradation of American society to grow the company’s bottom line. Zuckerberg’s reported resistance to a “broad” fix came two years after he told the Senate: “[I]t’s clear now that we didn’t do enough to prevent these tools from being used for harm … [a]nd that goes for fake news, foreign election interference and hate speech.”
Lulling Congress and the public with statements designed to promote belief that nothing need be done to stop harmful conduct is reminiscent of the tobacco companies’ deceit to avoid regulation in the 1990s. The collective action of state attorneys’ general successfully attacked that deceit and held the companies to account. Like Facebook, the companies were producing externalities — a grave public health hazard — with consumers in need of protection. In handling Facebook’s malfeasance, adding a securities fraud claim a la Ohio’s action on Tuesday would be smart.
According to “Save the Children,” a century-old nonprofit, the United States has one of the world’s most active sex trafficking markets.
In March 2018, Facebook employees flagged that despite a policy against it, human trafficking was flowing on Instagram, Facebook’s subsidiary. Apparently, the company took action only a year later, after the BBC, using a few hashtags, located trafficking posts. 703 profiles were removed.
That wasn’t even a half-way measure. After the BBC story published, the Apple Store threatened to remove Facebook’s app. It took that huge threat to profitability for Facebook to escalate its countermeasures — though inadequately — acting against 100,000 content pieces. Then, two years later, in late October 2021, a replay: CNN alerted Facebook to continued human trafficking after a reporter easily located multiple posts.
It is evident that media attention or a serious threat to revenue is required for Facebook to correct course. The Big Tobacco litigation showed how class action and Attorney General lawsuits can provide such attention and threat.
Internal Facebook memos document that in 2019, Facebook researchers concluded: “We make body image issues worse for one in three teen girls. Teens blame Instagram for increases in the rate of anxiety and depression.“
According to Haugen, Facebook’s algorithms rank engagement to customize content to users, often driving them to more emotionally intense content. In the words of a father whose teenage daughter ended her life, the algorithms led to “an Instagram feed full of suicidal ideation and self-harm.”
Today, more than three of four Americans believe that Facebook does more harm than good. To protect  political, social, and personal well-being, accountability for Facebook is in order. It’s time for bipartisan state attorneys general to dust off the Big Tobacco playbook.
2016 Presidential Elections, 2020 presidential election, elections, Facebook, human trafficking, Litigation
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Scott Harshbarger is a Former Attorney General of Massachusetts, and co-founder and chairman of Lawyers Defending American Democracy (LDAD).
Dennis Aftergut is a former federal prosecutor.
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