Loyola University Chicago School of Law, J.D. 2023
Recently, whistleblower Frances Haugen testified before a Senate subcommittee that Facebook has been deliberately putting its own profits before users’ safety. As Facebook’s former product manager for civic misinformation, Haugen calls for federal regulation of social media platforms and asserts that Facebook will not solve what she calls a “crisis” of deliberately ignoring users’ wellbeing for the sake of its own profits without Congress’s help. She points to tobacco, automobiles, and opioids, stating that when it became clear that those products were harming people, the government took action.
What’s the harm?
In her testimony, Haugen revealed that Facebook has misrepresented what it knew about the platform being used to spread misinformation, and has consistently understaffed the teams tasked with safety and espionage-prevention. Additionally, Haugen criticized Facebook and Instagram’s tendency to “make young girls and women feel bad about their bodies,” and this criticism is well-founded. A study carried out by the 5Rights Foundation and Revealing Reality found that social media platforms are disturbingly quick to target children with inappropriate and harmful content. For instance, the researchers’ simulated child accounts were targeted with content related to suicide and self-harm, unachievable body standards, and promoting eating disorders. They also received inappropriate messages from adults wanting to connect and offering them pornography. Until recently, a version of Instagram designed specifically for children was in active development. The head of Instagram announced in September that the “Instagram Kids” project has been paused following criticism from the public, but continues to defend the idea. According to him, the goal of “Instagram Kids” is to provide a safe platform for the children who are already using Instagram despite its requirement for users to be 13 or older. When viewed together with the study described above, as well as Haugen’s testimony, there is substantial reason to doubt that safety is the true motivation behind the development of this new platform.
Parallels between social media and big tobacco
In her opening statement, Haugen likened social media to products including tobacco and opioids. These proved to be pertinent comparisons, especially tobacco. In her testimony, Haugen responded to Facebook’s attempted justification, that only twenty percent of young users have been found to experience adverse effects as a result of social media, by pointing out that only ten percent of smokers actually get lung cancer in their lifetime. For each of those two products, the extremely high number of people using it means that even relatively small percentages of its total base still constitute very large numbers of people. As of June 2021, there were more than 1 billion active Instagram users. This means that, even if a small portion of the total user base is affected, millions of people may be suffering.
Haugen is not the only one to draw parallels between social media and tobacco products; Senator Richard Blumenthal described Haugen’s disclosure as a “big tobacco moment,” in reference to the amount of unchecked and unilateral power that Facebook is exerting over consumers and the inherent danger of its product. When lawmakers were made aware of how pervasive the harms of tobacco products were, they acted. For instance, the Federal Cigarette Labeling and Advertising Act of 1966 required cigarette packaging and advertisements to include health warnings, and more recently the Tobacco Control Act of 2009 placed further regulations on how and to whom tobacco products can be sold. Specifically, among other things, the 2009 act prohibited sales to minors and tobacco companies from sponsoring sporting events. Facebook parallels tobacco products in that both have been known to cause significant harm to consumers and have been available for long periods with little to no regulation. Tobacco companies eventually were regulated in order to protect consumers, so perhaps Facebook should be as well.
Should Facebook be subject to federal regulation?
One of the greatest challenges of the digital age is developing solutions that can keep up with the complexities of rapidly developing technologies. However, it seems in this case that there is a strong possibility that Congress will implement regulations. In the Senate panel, Blumenthal described Facebook as “morally bankrupt,” and commended Haugen for demonstrating “that there’s a path to make this industry more responsible and more caring about kids.” Considering Blumenthal’s comments, together with his experience suing big tobacco companies as Connecticut’s attorney general, it seems likely that he may support a move to regulate Facebook. Given the findings demonstrating Facebook and Instagram’s deleterious effects on users’ mental health and safety, as well as their role in spreading misinformation, it would be in the people’s best interest to regulate Facebook. Legislation regulating social media will mark a major change in direction from what has so far been purely market-driven development. However, it is still too early to speculate on the future of social media policy. As for what, if any, specific regulatory measures Facebook will be subject to going forward, only time will tell.