New lawsuit by the PA Attorney General against Snap (fka Snapchat) provides some potential lessons to companies that have child or teen audiences for their services.
1. Mind your Marketing:
Regulators pay special attention to the content of marketing of the companies as evidence of knowledge or intent as well as evidence of audience-design. If you say that you know that a large part of your audience is “Gen Z” or that your product is widely used by middle schoolers, regulators will take note. Many of the laws that apply to minors have a threshold of “knowingly” “willfull disregard” and similar standards and such marketing comments can move the needle in the direction of the law’s applicability. This is not a new technique. The old peer-to-peer file sharing cases were decided, in large part, on marketing statements made by the companies regarding the services being used unlawfully. Similar claims are being made regarding AI companies with respect to scraping content and whether the intent is for it the content to be used in a copyright-infringing manner.
2. Mind your App Store Age Classification
App stores require application providers to describe the content available on their app in various categories and provide a resulting age rating. If you provide false or misleading information including regarding the frequency of content on your platform, that is not appropriate for children or teens, you could face liability both under the various state app store and age assurance laws (like in California, Texas, Louisiana, Utah etc.) but also, potentially for other traditional causes of action under consumer protection laws such as: misleading conduct, deceptive acts or unfair trade.
3. Mind your AI Chatbot
If your application has an AI Chatbot feature, that can engage in conversation with the user, you could be in scope and have obligations under the State “AI Companion Laws” like New York’s AI Companion law, California’s Chatbot law (SB 243) and Connecticut’s SB 5. However, even in states without such innovative laws, a chatbot that engages in conversation with minors about inappropriate topics could subject you to lawsuits under traditional causes of action law including: unfair and deceptive trade practices / consumer protection statutes; negligence; negligent design; failure to warn; negligent misrepresentation (if safety representations are made) and products liability theories.
4. Mind your addictive features
Features that may be considered addictive are especially sensitive where it comes to minors, if they are on by default and especially if they cannot be opted out of and when there are multiples of these features taken together. Consider (and re-consider) practices like:
- infinite scrolling
- push notifications at all hours, including at night
- display of likes
- “streaks” for engagement, charms or trophies for close relationships
- autoplaying videos
- algorithmic content recommendations,
- read receipts or interaction-pressure features.
5. Additional things to consider
- What level of age assurance is necessary before relying on age-based controls?
- Does obtaining a minor’s consent cure a design issue, particularly where the feature is alleged to be addictive or manipulative?
- Is exposing or sharing the precise geolocation of a minor problematic even if it is off by default and the minor needs to actively turn it on?
- Is ephemeral content that you need to check back to see before it disappears addictive pe se?
- How robust do parental controls need to be? Do they need to span all the connections on the platform? Content too? Is it ok that they require the consent of the minor to enable?