AG Racine Files Brief Supporting Effort to Hold Facebook Accountable For Falsely Claiming to Remove Hate Speech From Its Platform

Brief in Muslim Advocates v. Facebook Urges Court Not to Grant Tech Platforms Sweeping Immunity from the District’s Consumer Protection Laws

WASHINGTON, D.C. – Attorney General Karl A. Racine filed a brief urging the Superior Court of the District of Columbia not to grant technology platforms sweeping immunity from local consumer protection law, and to allow a private lawsuit challenging Facebook’s deceptive claims about its content moderation practices to move forward. 
In an amicus brief filed in Muslim Advocates v. Facebook, a case concerning the tech platform’s misrepresentations about removing hate speech from its platform, the Office of the Attorney General (OAG) urges the court to reject Facebook’s efforts to get the case dismissed. The District’s brief asserts that no company is entitled to mislead consumers about its goods and services, and that consumer protection laws apply to online companies that do not charge monetary fees in the same way they apply to all other businesses. The brief also pushes back on Facebook’s erroneous argument that Section 230 of the Communications Decency Act shields tech platforms from accountability for their own misrepresentations to consumers. 

This brief is a continuation of  AG Racine’s focus on fighting hate throughout his term as 2021 president of the National Association of Attorneys General (NAAG), a nonpartisan organization for state and territory attorneys general and their staff. NAAG’s annual Capitol Forum begins today in DC.

“As we know from countless documents and sworn testimony of former Facebook employees, Facebook and its senior executives know exactly what they’re doing and why they’re doing it. They are bombarding users with hateful and violent content every day—because Facebook cares more about profit than it cares about protecting its consumers and being responsible about hate speech,” said AG Racine. “Now Facebook is trying to claim that it—and other massive tech companies—are above the law and cannot be held accountable for their false statements to consumers. But no company is entitled to mislead consumers, and there is nothing in local or federal law that shields companies like Facebook from the consequences of their own deception.”

Muslim Advocates, a national civil rights organization based in the District, filed suit against Facebook and its executives in April 2020 to hold the company accountable for misleading consumers about the safety of its product. In its lawsuit, Muslim Advocates alleged that Facebook and its senior leadership violated DC’s consumer protection laws when they repeatedly and falsely claimed to remove hate speech and harmful content from its platform. The group highlights the hateful anti-Muslim attacks that remain pervasive on Facebook, and the alleged failure of the tech giant to uphold its policies requiring the removal of harmful content, including hate speech, bullying, harassment, and violence.

In its amicus brief supporting Muslim Advocates, OAG urges the Court to allow the case to move forward because:

  • District law prohibits all companies from misleading consumers: The District’s Consumer Protection Procedures Act (CPPA) prohibits a wide variety of deceptive and unlawful businesses practices that harm consumers. The law applies to all consumer goods and services, whether they are sold, leased, or transferred. In its motion seeking dismissal of Muslim Advocates’ lawsuit, Facebook argues that it cannot be held accountable under the CPPA because it does not charge consumers a monetary fee. OAG’s brief explains that the law clearly protects consumers from all improper trade practices, regardless of whether a consumer pays a fee to use the service.
  • Granting tech platforms immunity from the District’s consumer protection laws would harm District residents: Exempting tech companies that do not charge monetary fees from consumer protection laws would harm District consumers and diminish their access to truthful information about many of the services they use every day. Today, many companies operate like Facebook: they provide purportedly free online services in exchange for access to consumers’ personal data, which they sell to third parties or use to sell advertising. While users may not pay money for these services, they are “paying” with something of value: sensitive personal information, including information about their demographic characteristics, physical locations, search histories, and even health-related information. These large and powerful tech companies should not be exempt from accountability when they harm and mislead consumers. 
  • Federal law does not protect tech platforms from being held accountable for false statements and misrepresentations: In Facebook’s motion to dismiss, the tech platform argues that a federal law—Section 230 of the Communications Decency Act—exempts it from any legal responsibility for its own statements to consumers. OAG’s brief explains why this is wrong. Section 230 shields tech platforms from lawsuits related to the content posted on their platforms by third parties. However, it does not provide businesses with immunity for their own unlawful representations about their goods and services. The District explains that the statute simply does not apply in this case, where consumers are seeking to hold Facebook and its executives accountable for their own alleged misrepresentations about the services the company provides.

A copy of the District’s amicus brief is available here.

Three nonprofit consumer protection organizations—Consumer Reports, Public Knowledge, and Upturn—also filed an amicus brief that refutes Facebook’s assertion of immunity. The nonprofits, which are represented, as counsel of record, by Yale Law School’s Tech Accountability & Competition Project, a division of the Media Freedom and Information Access Clinic, highlight Facebook’s “brazen effort” to exempt itself from District consumer protection law.  They join the District in arguing that Facebook has a merchant-consumer relationship with its users despite the fact that Facebook provides its services free of any direct monetary charge.

“It may be that Facebook doesn’t charge a subscription fee, but that doesn’t mean you’re not getting ripped off,” said David Dinielli, Visiting Clinical Lecturer in Law at Yale Law School and supervising attorney of the student project that prepared the brief. “Facebook earned nearly $30 billion in profit last year by vacuuming up personal data as well as time and attention. Facebook now claims the right to lie about how it runs its social network without consequence under consumer protection law, all because it collects no money from users. The claim is bold, to put it mildly. It also is wrong. A fruit merchant can’t give a customer a poison apple in exchange for a delectable peach, then claim legal immunity because the sickened customer paid with a peach rather than with cash. The argument is nonsense.”

How to Report Illegal or Unfair Business Practices  
District consumers can report unfair business practices, scams, or fraud to OAG by: