In a bellwether court decision late last month, juries in California and New Mexico determined that Meta and Google platform designs harm kids. New Mexico found that Meta failed to protect minors from child exploitation, and California found that Meta and Google had inherently addictive features that resulted in direct harm to users. These landmark cases are the first jury findings holding platforms liable for core design decisions, which will create a precedent that will reshape company behavior, the liability landscape, and policy choices made in Congress.
With thousands of similar cases pending across other states, all companies, not just Meta and Google, will similarly face uncertain liability. As a result, businesses of all sizes will divert resources from product safety innovations and parental controls to lobbying to limit legal exposure. As lobbying pressure mounts, consumers will pay the costs.
Consider Microsoft’s antitrust case in the late 1990s and early 2000s. The government claimed Microsoft created barriers to entry by tying its internet browser to Microsoft products and blocking middleware software to stifle competition. Meanwhile, the telltale signs of monopoly—higher prices, reduced output, and foreclosed competition—never materialized. The remedies remained uncertain and open-ended for years.
To combat that legal and political pressure, Microsoft heavily expanded its lobbying presence in the Capitol. Before losing its antitrust case in 2000, Microsoft’s DC lobbying presence was modest. In efforts to soften the antitrust approach from regulators after losing the case, Microsoft grew its political contributions from tens of thousands of dollars in 1994 to spending $4.66 million on political contributions and $12 million on lobbyists by 2001. Ample resources were diverted from creating better products for consumers to rectifying complaints from governments and avoiding high costs from overreaching remedies.
Similar results will likely follow the Meta and Google liability rulings. These platform design liability rulings treat any design feature that could potentially harm users as problematic—with implications not just for Meta and Google, but for all platforms. In the New Mexico case, even Meta’s decisions to implement end-to-end encryption was portrayed as problematic because it made detecting child exploitation more difficult. In California, features meant to enhance the user’s experience—algorithmic recommendations, push notifications, comment sections, or reaction buttons—were deemed inherently harmful.
Both of these decisions fall under the very broad “product design” umbrella, creating uncertainty for companies about which of their many features will trigger liability. As a result, companies will struggle to determine which design features to remove, modify, or improve.
Boxed in by that uncertainty, companies will turn to lobbying for a more favorable regulatory environment. But that deal-cutting is complicated by the fact that so many federal child online safety bills would also expand, not limit, liability claims. The Senate version of the Kids Online Safety Act (KOSA), for instance, includes a duty of care provision that opens frivolous lawsuits. The EARN IT Act removes Section 230 immunity for CSAM (Child Sexual Abuse Material)-related civil and state criminal claims entirely, holding platforms liable even when they don’t know if CSAM is on their platform. Even the Sunset Section 230 Act would eliminate liability shields from what third parties post in hosting platforms, opening product liability, negligence, public nuisance, and any other theory that courts would entertain as the solution for any type of harm. Congressional escalation of liability will make worthwhile compromise difficult to achieve.
Fortunately, the goal is neither a political compromise nor broadly sweeping, court-imposed liability. The real objective is improved teen mental health and protection for children online, something open-ended lawsuits will not accomplish. Courts and legislatures should instead require plaintiffs to point to specific, identifiable harms caused by a specific design choice. In the case of California, harms were attributed to the system as a whole rather than to features that pinpoint direct causation. In the New Mexico case, the harms were attributed to the failure to disclose the problems of certain platform design features. Neither gives a useful direction to improve the problems pointed out by the juries, which is why identifying specific harms is far preferable to treating platforms as presumptively dangerous.
In the end, the recent court rulings will make companies responsive in inefficient ways. To avoid liability, companies will chase political votes, not consumer dollars. The incentive to spend resources on improving product design, developing better safety tools and parental controls, or generating evidence about what actually helps teens will be harder. That’s why when the courthouse threatens companies with expansive liability, companies stop competing for consumers and start competing for regulators.
Pablo Garcia Quint is a technology policy analyst with the American Consumer Institute, a nonprofit education and research organization. Follow Pablo on X @gq_pablo