GoKawiilis a senior policy reporter at The Verge, covering the intersection of Silicon Valley and Capitol Hill. She spent 5 years covering tech policy at CNBC, writing about antitrust, privacy, and content moderation reform.
New Mexico Attorney General Raúl Torrez won a historic sum of $375 million in a landmark child safety case against Meta earlier this year. But the next stage of the fight could be even more consequential for Meta and the social media industry at large.
Beginning Monday, attorneys for Meta and New Mexico will return to a Santa Fe courthouse for a three-week public nuisance trial, where they’ll argue over the changes the AG wants the judge to order Meta make to Facebook, Instagram, and WhatsApp. Those changes include adding age verification for New Mexico users, prohibiting end-to-end encryption for users under 18 and capping their use 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).
“From the outset, our goal was to try and change the way the company’s doing business,” Torrez told The Verge on a recent visit to Washington, DC, to advocate for new kids safety legislation. “I recognize that even at $375 million for a company this big and this profitable, it’s not enough in and of itself to change the way they’re doing business. In fact, there’s probably some folks in that company who think of it as the cost of doing business.”
“Even at $375 million for a company this big and this profitable, it’s not enough in and of itself to change the way they’re doing business”
While any changes ordered by the judge would only apply to Meta and its operations in New Mexico, the company could apply the changes in other states for the sake of simplicity. Or, as it’s threatened to do, it could simply go dark in the state. A court order could send a message to other tech companies that courts may be willing to alter their businesses if they’re found liable.
During the trial, New Mexico will argue Meta has become a public nuisance by creating a public health hazard in the state. The AG’s office expects to call on about 15 witnesses, including experts who will testify to the feasibility of their proposed remedies, and fact witnesses who will testify about Meta’s alleged harms. After Meta makes its defense, Judge Bryan Biedscheid will evaluate which proposals are relevant and feasible — a process that could take some time, compared to the speedy turnaround of the jury verdict in March.
A sweeping win for New Mexico could energize Torrez and thousands of other plaintiffs currently pursuing cases against tech companies. Conversely, a limited order could be a significant blow. The outcome won’t directly impact other cases, but it will almost certainly color negotiations over potential settlements.
Several of Torrez’s requests are hot-button tech policy issues. Age verification would almost certainly require Meta or a third-party provider to collect more personal information on adults and minors alike, which privacy advocates have consistently warned can make users less safe. Don McGowan, who previously served on the board of the National Center for Missing and Exploited Children (NCMEC), said that barring encrypted communications on platforms like Facebook “is a great way to make sure that nobody uses Facebook Messenger anymore and just moves their activity to other platforms that aren’t touched by this lawsuit.”
The mandate may do little to change the reality of certain parts of the business — Meta recently announced it was getting rid of end-to-end encrypted messaging on Instagram that it said “very few people” actually used.
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