New Mexico Attorney General Raul Torrez won a historic $375 million settlement in a landmark child protection case against Meta earlier this year. But the next phase of the fight could be even more consequential for Meta and the social media industry at large.
Starting Monday, lawyers for Meta and New Mexico will return to the Santa Fe Courthouse for a three-week public nuisance trial, where they will argue over changes the AG wants the judge to order Meta to implement to Facebook, Instagram and WhatsApp. Those changes include adding age verification for New Mexico users, restricting end-to-end encryption to users under 18 and limiting their usage to 90 hours per month, limiting engagement-boosting features like infinite scroll and autoplay, and requiring Meta to detect 99 percent of new child sexual abuse material (CSAM).
“Our goal from the beginning was to try to change the way the company does business,” Torrez said. The Verge On a recent trip to Washington, DC to advocate for new child protection legislation. “I believe that for a company this big and this profitable, even $375 million is not enough in itself to change the way they do business. In fact, there are probably some people in that company who think of it as a cost of doing business.”
“Even at $375 million for a company this big and this profitable, it’s not enough in itself to change the way they do business”
While any changes ordered by the judge will only apply to Meta and its operations in New Mexico, the company could implement the changes in other states for the sake of simplicity. Or, as it has threatened to do, it could lead to darkness in the state. The court order could send a message to other tech companies that courts may be willing to change their business if they are found liable.
At trial, New Mexico will argue that Metha has become a public nuisance by creating a public health hazard in the state. The AG’s office expects to call approximately 15 witnesses, including experts who will testify as to the feasibility of their proposed measures, and fact witnesses who will testify about Meta’s alleged losses. After Meta concludes its defense, Judge Brian Biedscheid will evaluate which proposals are relevant and viable – a process that could take some time compared to the quick turnaround of the jury’s verdict in March.
A sweeping victory for New Mexico could energize Torrez and thousands of other plaintiffs currently hearing cases against tech companies. Conversely, limit orders can be a significant blow. The outcome will not directly affect other cases, but it will certainly influence negotiations on possible solutions.
Many of Torrez’s requests are hot-button technology policy issues. Age verification would almost certainly require Meta or a third-party provider to collect more personal information on adults and minors, which privacy advocates have consistently warned could make users less safe. Don McGowan, who previously served on the board of the National Center for Missing and Exploited Children (NCMEC), said that blocking encrypted communications on platforms like Facebook is “a great way to ensure that no one uses Facebook Messenger anymore and moves their activity to other platforms that are not affected by this lawsuit.”
The mandate may not do much to change the reality of some parts of the business – Meta recently announced it was getting rid of end-to-end encrypted messaging on Instagram, which “very few people” actually use.
Peter Chapman, associate director of the Knight-Georgetown Institute, which works to connect policymakers and others to independent technology policy research, said there may be “significant tradeoffs” to restrictions on encryption, and other changes may be more effective. For example, evidence presented by the state showed that Meta’s own profile recommendations were combining adults and minors, a feature that poses a clear risk of harm without much benefit, and which Torrez is also asking the court to stop. “There’s an opportunity to intervene at that level and try to prevent these harmful interactions from happening without having to deal with encryption,” Chapman said.
No single facility change is likely to solve the entire child and teen safety problem, Chapman said, which is why it’s notable that Torrez plans to ask for changes at multiple levels. Yet, the overall effectiveness of any measure will also depend on how it is implemented and monitored. For example, what methodology does META use to report a 99 percent detection rate of new CSAM? How does it count or estimate something it has not caught? The same applies to the accuracy and reliability of any mandatory age verification.
Meta points to this potential issue in his argument against Torrez’s proposed measures. “Even if an accuracy threshold were set, META would never be able to prove that the system meets that standard, because META would have to detect 100% of CSAM to use as the denominator in the calculations,” the company wrote in a legal filing. Torrez’s chief deputy, James Grayson, said on a press call that the court and an appointed independent monitor would have some discretion over tracking; The office has not yet identified who this monitor will be.
“The demands being made in New Mexico are ill-informed and provide massive additional risk for other types of exploitation.”
META and other groups that oppose the AG’s approach say the results he is seeking are counterproductive. Maureen Flatley, president of Stop Child Predators, said, “The demands being made in New Mexico are ill-informed and provide massive additional risk for other types of exploitation.” “The notion that the platform would have to be responsible for bailing out all these people would be like the U.S. Bankers Association saying, ‘By the way, you’re responsible for all bank robberies from now on,’ which is ridiculous.”
“The New Mexico Attorney General’s focus on one platform is a wrong strategy that ignores the hundreds of other apps that teens use daily,” Meta spokesperson Chris Asgro said in a statement. “The state’s proposed orders violate parental rights and prevent free expression for all New Mexicans. Regardless, we are committed to providing safe, age-appropriate experiences and have already instituted many of the protections called for by the state, including 13 safeguards put in place last year.”
But Torrez has also taken aim at the broader tech industry. She recently visited Washington, D.C., to advocate for new protections for children online and reform of Section 230, the law that protects tech platforms from being held liable for what their users post. “Although we were able to win in our district court in Santa Fe, I still think the current law creates a lot of ambiguity,” he said. The Verge On that tour. “If Section 230 was not something these companies could hide behind, then it increases the likelihood that they will actually have to put their case in front of a jury.”
But Chapman said regulation through lawsuits is not an “unusual kind of story” in the US. “Whether it’s tobacco, opioids, e-cigarettes, there is precedent for legislative action to advance the broader policy conversation.”
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