Social Media Design and the Law: Where does accountability lie?

How, and if, to hold online platforms accountable for their effects on public health, safety and democracy has been one of the most hotly debated, and polarizing, topics in tech policy for years. One of the pathways for accountability lies with the courts. Historically, courts have accepted broad interpretations of immunity provisions like Section 230 to cover a range of tech behavior that critics assert extends beyond the original intention of the law’s drafters. In recent years, there have been numerous court cases making their way through the system that could, if successful, start shifting the current interpretation of Section 230 and set the stage for redefining the lines around preemptive immunity.

The Electronic Privacy Information Center (EPIC) and NYU-Northeastern University’s Cybersecurity for Democracy co-authored an amicus brief in a multi-district litigation about whether Meta engaged in unfair and deceptive trade practices by knowingly implementing platform design features that harmed its users for profit. The brief laid out a framework on why Section 230 should not apply in this case. In this panel, the authors will dive into their arguments, including discussions around the history of Section 230; how courts are applying Section 230 today; where novel theories are breaking through; how Section 230 and the First Amendment are related; and legal arguments around “the moderator’s dilemma." They will also offer insights on the technical expertise needed to fully understand how accountability can apply, including how algorithmic feeds work and how they should apply in cases involving social media design.