Silicon Valley School District Files Laughable, Vexatious RICO Claims Against Big Social Media… But Not Facebook Or Instagram

Legal Issues

from the just-make-an-angry-youtube-video-or-something dept

Back in January, we wrote about the Seattle public school district filing an absolutely laughable lawsuit against basically all of big social media, based on a bunch of misread and misunderstood studies, and general moral panic that social media must be “bad” for kids. In February, we wrote about the school district in Mesa, Arizona filing a very similar lawsuit (using the same law firm). We wondered if we were going to see a flood of such lawsuits.

Also, we pointed out how these school districts were effectively announcing publicly to all parents that they had given up on actually educating their children on how to understand the modern digital world, and were basically caving to moral panics and admitting that they don’t know how to prepare children for today’s world. As I noted in both of those stories, if I were a parent in either district, I would be furious.

Well, be careful what you wish for, because last week, at least two* more such lawsuits were filed, including one by the San Mateo County Board of Education, which oversees the school district that my children attend. So, yeah, now I’m furious. As I told the superintendent in an email last week, I had been actually quite happy with how the schools my children attended had taught digital citizenship, and how to they seemed to have good programs designed to prepare kids for a digital future. But, filing such a ridiculous lawsuit is the opposite of that and now has me concerned that the district is so unprepared to teach kids about the modern world that I should be worried about their education.

It gets even worse. The San Mateo County lawsuit is similar to the ones filed in Seattle and Mesa, but with a few differences. While both of the others mainly focused on (already laughable) “public nuisance” claims, San Mateo… also includes a RICO claim.

Yes. RICO.

As regular readers of Techdirt well know, IT’S NOT RICO, DAMMIT. It’s never RICO. But it’s especially not RICO in this case. RICO means something. It most certainly does not mean “a lot of these companies have been bad for the kids I’m supposed to be teaching how to live in the modern world, which we can only support by cherry picking and misrepresenting evidence.” You need to show conduct of an enterprise, through a pattern of racketeering activity called predicate acts causing injury to the plaintiff’s business or property. And you need to show all five elements in there.

Here’s how the San Mateo County Board of Education — which is responsible for educating my children — handle that. They claim each of the defendants (Google, Snapchat, and TikTok — but not Meta, which we’ll get to, and not Twitter, which, hrmph, I guess I’ll also get to) have formed “an association-in-fact” with the “shared goal… to preserve and enhance the market for its social media platforms and RICO Defendants’ own profits.” I mean, under that definition companies in any industry have “an association.” But that’s not how the law actually works.

What about the “pattern of racketeering?” Well… again, they basically say these companies wanted more users, and that’s racketeering. Oh, and then at the very end they just randomly accuse these social media companies of wire fraud. I wish I were joking.

RICO Defendants had the common purpose of preserving and enhancing the market for their platforms and for youth as consumers for RICO Defendants’ own profits, regardless of the truth, the law, or the health consequences to the American people, including Plaintiffs’ students and the communities Plaintiffs serve.

RICO Defendants deceived consumers to use RICO Defendants’ platforms while concealing and/or suppressing the relevant findings and research. RICO Defendants deceived consumers, particularly parents and children, adolescents, and teenagers, by claiming that they did not market to children, adolescents, and teenagers, while engaging in marketing and manipulation of their platform algorithms with the intent of causing children, adolescents, and teenagers to engage in excessive use of their platforms, regardless of the health or safety concerns.

RICO Defendants achieved their common purpose through co-conspirators’ actions in deceiving consumers, regulators, and the general public about the dangerous nature of their platforms. Through the enterprise, RICO Defendants engaged in a pattern of racketeering activity consisting of numerous acts of racketeering in the Northern District of California and elsewhere, including mail fraud and wire fraud, indictable offenses under 18 U.S.C. §§ 1341, 1343.

That’s not how any of this works.

How about the “predicate acts?” Well, here they claim that social media companies… use the mail “to mislead the public.”

From a time unknown and continuing until the time of filing of this complaint, in the Northern District of California and elsewhere, RICO Defendants and others known and unknown did knowingly and intentionally devise and intend to devise a scheme and artifice to mislead, and obtain money and property from, members of the public by means of material false and misleading pretenses, representations, and promises, and omissions of material facts, knowing that the pretenses, representations, and promises, were false when made.

The “mail fraud” and “wire fraud” seem to be based on the laughable claim that these companies… sent promotional material through the mail. Really.

For the purpose of executing and attempting to execute the scheme and artifice described herein, RICO Defendants and their co-conspirators would and did: knowingly place and cause to be placed in any post office or authorized depository for mail matter, matters and things to be sent and delivered by the United States Postal Service (and its predecessor, the United States Post Office Department); took and received therefrom such matters and things; and knowingly caused to be delivered by mail according to the direction thereon, and at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter and thing, in violation of 18 U.S.C. § 1341.

They also fail to plead how any of these harmed SMCBoE’s business or property, meaning they didn’t actually plead all the elements of RICO anyway.

After reading this, I asked defense attorney, and RICO specialist, Ken White whether he thought the lawsuit, and especially the RICO claims had any merit. Ken did not hold back:

It’s a mish-mash of junk science, nanny-statism, and pro-se-style and likely sanctionable legal buffoonery.  The RICO claims are preposterous and betray the vexatious intent of the entire — pun definitely intended — enterprise.  This is the worst that modern pandering, performative litigation has to offer.  Jesus, just make an angry YouTube video or something. This is exactly why judges need to be much more aggressive sanctioning lawyers and reporting them to the bar.

The RICO claims are definitely the most preposterous, but that doesn’t mean the other parts of the lawsuit are any better. As Ken notes, it’s full of junk science. It takes correlations to be proved causation (despite tons of evidence to the contrary — such as the fact that adolescent suicide rates were way higher in the 1980s and 90s than they are today). It cherry picks unsubstantiated claims regarding social media and focuses on extreme cases that have been overplayed in the media.

Just as an example, it calls out the infamous “devious licks” TikTok challenge that got a lot of attention in the fall of 2021. The complaint implies, without any evidence, that the devious licks challenge caused a problem in San Mateo schools based entirely on the headline in one school newspaper. Really. Of course, as we covered back in 2021, the whole devious licks thing was mostly a silly moral panic spread by adults. Kids in schools actually responded to the few cases of actual vandalism (which has happened in school probably going back to the beginning of school) and many turned it around and created the “angelic yields” challenge of getting kids to help clean up their schools.

The complaint also ignores that TikTok banned anything related to “devious licks” as soon as it started getting any attention. It was moral panic reporting from news reporters and adults that spread the concept.

So why is the San Mateo County Board of Education suing the news?

There is, of course, the ever popular comparison to tobacco:

It is apparent that when the YouTube, TikTok, and Snap companies were faced with a choice about making a change, they decided to stay the course. They simply put profit over the health and safety of children. Like the public health crisis caused by Big Tobacco, the YouTube, TikTok, and Snap companies have endeavored to shift blame and shirk responsibility through a concerted effort to withhold and distort the facts. Despite their advanced knowledge of the disaster they are causing, the YouTube, TikTok, and Snap companies have made no meaningful attempt to address this exploding crisis. As they look for new and ingenious way to leverage their unmatched access to technology to keep children addicted to their platforms, Defendants feed their own addiction, to profits and ever larger user bases. Due to the YouTube, TikTok, and Snap companies’ unwillingness to address the crisis of their making, the San Mateo Board of Education and its Superintendent feel they have no other choice than to bring this lawsuit to ensure the health and safety of children in their care.

Except that almost every sentence in this paragraph is false. It’s embarrassing. First of all, tobacco has no redeeming value. Social media is about speech. Not smoking a harmful product. Kids have free speech rights as well, though apparently my local school board wishes to deny them of that right.

Second, all of these companies have large trust and safety and research teams that actually do tons of work to try to limit any harm, especially to kids. I already mentioned how TikTok stopped the spread of the “devious licks” concept almost immediately. The complaint ignores that.

The complaint also ignores copious studies that show most students get tremendous value out of social media, not harm. Just recently the Pew Research Center released a massive report showing how the vast majority of students found they benefited from social media, and only a small minority found it problematic. Or how about this massive study from 2019 of over 12,000 students, that could find no evidence to support the idea that social media made kids depressed.

Incredibly, the complaint does mention the recent Pew study, but totally misrepresents what it says. It does not mention how the majority of students found they benefited from social media, and only 9% said it had a negative impact on their lives. You’d think such a stat would be relevant. Instead, the complaint focuses just on how many teens say they use social media and don’t want to give it up, and then leap to insisting that this proves that social media is addictive and that the companies are nefarious.

But, uh, try asking that same question about… watching TV, hanging out with friends, or even reading books, and you’d likely get pretty similar answers. Kids do it because it’s fun and it’s how they socialize. Hell, ask the same questions about going to school. Indeed, kids go to school every day, and I’d bet they’d report that school leads to a higher level of depression than social media.

Maybe the School Board should be suing itself? Or at least, be willing to do the same kind of research that Meta did to try to learn about its own impact on teenagers’ well being. No, instead, it would rather stick its head in the sand and insist that it must be social media to blame for the school not being prepared to educate and take care of kids following a pandemic.

You’d think that these other studies might give the people behind this lawsuit pause. Indeed, I asked the superintendent if she had read those studies and if she had any comment on them. Instead, she passed me on to a San Francisco PR shop and said they’d answer my questions. I asked the PR guy in question on Friday. On Sunday he told me that his client (which appears to be the law firm, rather than the school board) would not debate this with me (I wasn’t asking for a debate, I simply said I was hoping he could explain some of the decisions, since they appeared incomprehensible). Despite follow ups to both the PR guy and the Board, asking for simple answers to straightforward questions, no further responses were given.

Specifically both of them also failed to reply to my question about who actually initiated this process: was it the school or the law firm of Cotchett, Pitre & McCarthy? The law firm put out a silly press release about it. It is a different law firm than the one that filed the Seattle and Mesa cases, but at least that law firm didn’t… do the RICO.

The only one of my questions that was answered by the Board in an FAQ they posted, was that this is (not surprisingly) being handled on contingency, meaning that the law firm isn’t getting paid unless they win this case. Which they won’t. So, really, this just seems like an attempt by a terrible, mockable law firm, which deserves to be sanctioned, to try to score some cheap advertising.

And, now, we get to the very, very notable absence of Meta (Facebook and Instagram) in the defendant list. It’s… you know… kind of a glaring omission, given that it’s the largest social media platform, and so many of the studies that the complaint relies on are actually about Meta’s platforms and not the ones in the actual lawsuit.

Incredibly, the complaint uses (a misreading of) Meta’s own research… against those other companies! There are literally 5 pages of the lawsuit talking about the research leaked by Frances Haugen about Meta. And, of course, yet again, this research is misleadingly presented and cherry picked.

In 2021, a whistleblower and former employee of Meta Platforms, Inc. (“Meta”), known formerly as Facebook, Inc., leaked documents to journalists at the Wall Street Journal and government officials. These documents showed that Meta was aware as early as 2019 that one of its platforms, Instagram, caused body image issues to worsen for at least one third of teenage girls on the platform based on its own research and analysis. These documents settled what scientists had long suspected about Instagram’s harmful impact on children, in addition to confirming that Meta was completely aware of this issue based on Meta’s own studies. The leak confirmed that Meta designed Instagram in a way to risk the mental and physical health of children because that is what makes Meta profitable.

Except… that’s not what the leak showed at all. As we’ve highlighted in great detail over and over again, the study actually showed that in every category they studied for boys, Instagram made more teen boys feel better about themselves than worse (by a significant amount). And in 11 out of 12 categories, they made more teen girls feel better, rather than worse. There was only one category in which more girls felt worse, and it was body image, where the breakdown was still pretty close to equal. And, the whole freaking point of the study and the internal report that Haugen leaked, was that Facebook found this one category making girls feel worse to be unacceptable. That’s why they called it out!

Even as the complaint highlights how Meta was carefully studying this to understand what was happening and look for ways to fix the problems, the complaint pretends that they learned this… and ignored it.

And then to try to tie all this research from Meta (who again, was not sued in this complaint!) back to the companies that were actually sued, the complaint literally just says the other companies are all the same… “on information and belief.”

Defendants’ platforms operate similarly or in the same way as Meta’s platforms. On information and belief, Co-conspirators were and continue to be fully aware of the negative consequences of their platforms and their effects on minors’ health. Co-conspirators intentionally designed their platforms to exploit children and leave them riddled with mental and emotional health issues. Co-conspirators have endeavored to shift blame and shirk responsibility through a concerted effort to withhold and distort the facts, saying one thing publicly while admitting privately that the mental health issues detailed herein are caused by their platforms. Co-conspirators have conducted research and analysis, and have compiled data and documentation further substantiating the harms they cause to minors, and have falsely represented that they would disclose this research. Co-conspirators have intentionally withheld this information from the American people in a coordinated campaign to protect their profits from public scrutiny.

On information and belief indeed. Once again, this is not how any of this works.

And, of course, this raises the question of why Meta is not included in the lawsuit. I asked the superintendent and the PR guy, and neither would respond. I wondered if it could have something to do with the number of Meta employees who are parents with kids in San Mateo schools? It’s possible, though YouTube is also headquartered in the county and it’s still being sued.

As for the absence of Twitter, well, Twitter was never quite as big as the other big social media companies and always much less interesting to teens anyway, so one way to read this decision is as something of an insult to Elon Musk and his social media toy. Twitter is barely even mentioned in the complaint at all with the only mention coming to note that TikTok was bigger than Twitter. But… much of the research on social media happened around Twitter, in part because Twitter was the social media app with the most open API (which has since changed under new management). So, once again, we’re in a situation where the complaint uses research done on other platforms to hold YouTube, Snapchat, and TikTok to blame, despite little shown connection. As Ken White noted above, this is sanctionable behavior, and the kind of thing you expect in a pro se filing, not one from a formerly reputable law firm.

The only attempt the SMCBoE makes towards showing harm to the schools is by noting that… their own school districts weren’t prepared for the mental health crisis of the pandemic. Yes.

More than 8 in 10 public school reported that, due to the pandemic, students exhibited stunted behavioral and socioeconomical development. Sixty-one percent (61%) of schools perceived that general misconduct had increased. Schools reported substantial increases in the frequency of tardiness, skipping class, rowdiness, bullying, fighting, threats of fighting, use of electronic devices during class, and other classroom disruptions. Thirty-six percent (36%) of schools recorded an increase in vandalism.

And so we have to… sue social media? The same social media that… enabled your schools to stay open and relevant during the pandemic? The same social media that allowed kids across San Mateo County to continue to communicate with their social circle while they were locked down in their homes for over a year? The same social media — especially YouTube — that was critical to helping teachers continue to provide lessons to kids online? I know my kids were regularly assigned to watch science and history YouTube videos during remote learning, and many of those videos were fantastic! Way better than most science and history lectures I had in school.

That’s who you’re suing?

Like other school districts, Plaintiffs bear the cost of the increased need for youth mental health services. Operating under pre-crisis budgets, Plaintiffs have scrambled to reallocate resources to address the mental health crisis. Plaintiffs have diverted time and funds to hire additional health care professionals, to train teachers and staff on how to educate students on their mental health, to develop mental health curriculum and materials, and to keep students and parents notified and informed about mental health issues that arise.

Again, what does that have to do with social media? We had a pandemic. That’s been kinda stressful for everyone. And that’s true of kids as well. But social media actually helped tons of kids get through the pandemic and still stay in contact with their social circle.

Indeed, the complaint even admits all this:

During the Covid-19 pandemic, due to lockdowns, remote schooling, and physical isolation from friends, young people drastically increased their use of social media. One study explained its findings: “adolescents augmented their social media use, including general screen time.

But, then it blames all the mental health problems… on social media, and not the “physical isolation from friends” or the stress of, you know, a freaking pandemic.

This use of social media is accompanied by detrimental mental health effects

Again, studies show the opposite. The very Pew study that this complaint relies on to show that kids use social media a lot… showed that it did not have detrimental effects on the vast majority of kids.

Also, it turns out more people are absent from school… and somehow that’s also social media’s fault rather than a deadly, contagious virus.

Absenteeism also became a problem during the Covid-19 pandemic. Public schools reported both student and teacher chronic absenteeism increased compared to prior school years. Seventy-two percent (72%) of schools reported an increase in chronic student absenteeism compared to pre-pandemic school years.

The complaint details high rates of absenteeism at some of its schools, and makes zero effort to actually connect that to social media. It just acts as if it must be true, despite no reason to believe they’re connected, and many, many fairly obvious reasons to suggest that the pandemic is actually to blame.

The complaint also tries to connect bad behavior in schools to social media… and fails in almost hilarious ways. It mentions that since 2020 the entire county (which has a population of over 700,000 with between 85k and 100k enrolled students) there were… OMG… TWELVE threat incidents involving the internet.

Most egregiously, since 2020, Plaintiffs’ schools have had 72 Student Threat Assessment Training (“STAT”) Level 2 cases, 12 of which (16.7%) were a direct result of negative social media use.

Wait. Wait. Wait. So, with nearly 100,000 students, across three separate school years, you had… twelve incidents from social media? That’s an average of… four a year? From at least 85,000 students? I’m shocked it’s that low!

They also blame two hoax shooter phone calls… on the internet?

In addition to vandalism, social media has been tied to active shooter hoaxes. In October 2022, two San Mateo County high schools—Woodside High School and South San Francisco High School—had to go into lockdown when hoax phone calls to police departments reported possible active shooters on the campuses.

You don’t think it’s got more to do with the rise in actual high profile school shootings?

And, I mean, kids do stupid stuff like this. When I was in junior high school, a kid I knew from around the corner called in a bomb threat because he wanted to get out of a test he wasn’t ready for. We didn’t blame anyone, but him. Because he did it. Some kids are always going to do something like this. It happened before social media, and literally nothing in this lawsuit shows that social media has increased this kind of thing. Nor does it even attempt to link these claims to the internet, rather than just generally assuming they must be connected.

This whole lawsuit is a mess. And it’s a joke. And I’m sad because the people who brought this lawsuit are the people in charge of educating my kids. And anyone who thinks this lawsuit makes sense has shown a real failure. It’s a failure of critical thinking. It’s a failure of understanding evidence. It’s a failure of being carried away by a moral panic instead of evidence. It’s a failure in passing the blame. It’s a failure in not doing your damn job as educators.

It’s just shameful all around. I’m hoping more parents call out this nonsense. Yes, it’s difficult to manage schools these days, especially with all the nonsense culture wars and craziness. But any school board member who thinks this is how they should be spending their time will never receive my vote again, and makes me think it’s time to actively campaign against them in the future. They are failing our children.

* As noted above, this wasn’t the only such lawsuit filed last week. Bucks County, Pennsylvania filed one, as well. And, you know, it’s dumb too. Though, they did sue Meta as well. And went with the whole “public nuisance” claim like everyone else, but weren’t so crazy to go for the RICO nonsense. It’s still ridiculous and should fail easily in court, but this post was long enough, and frustrating enough that Bucks County gets off with just this one footnote paragraph.

Filed Under: covid, moral panic, nancy magee, protect the children, rico, san mateo, san mateo county, san mateo county board of education, social media
Companies: facebook, google, instagram, meta, snapchat, tiktok, youtube