The states come for OpenAI

Casey Newton (0:09)

This is Platformer Plus, I'm Casey Newton. The following column was created using a synthetic voice clone made by 11Labs.

In today's episode, the states come for OpenAI. Will the approach that beat Meta in New Mexico work against ChatGPT?

This is a column about AI. My fiance works at Anthropic. See my full ethics disclosure at platformer.new.ethics.

A year ago, when OpenAI added parental controls to ChatGPT following months of controversy, I noted that OpenAI was speedrunning the regulatory backlash that social media companies navigated for years. It took more than a decade for concerns about the effects of social networks on young people to coalesce into a political and legal movement. The same forces caught up to OpenAI in under three years. Today, the speedrun hit another milestone ahead of schedule, the big multi-state legal action. On Wednesday, state attorneys general suit OpenAI in eight separate state courts, alleging that ChatGPT coaches its users, including teenagers, to harm themselves and others. The states include Arkansas, Arizona, Idaho, Iowa, Kansas, Montana, Nebraska, and West Virginia. All but Arizona have Republican attorneys general giving the issue a notable partisan cast. It's also significantly smaller than the 2023 litigation against Meta, which included 42 AGs. The states argue that OpenAI engineered ChatGPT to be agreeable and engaging to build trust with its users. But the company then abuses that trust by reinforcing users' delusions, dispensing dangerous medical advice, and helping them plan violent attacks, including mass shootings.

OpenAI is hurting kids, and they are lying to Iowans. Iowa Attorney General Brenna Bird said in a statement to CNBC, OpenAI claims ChatGPT is safe while it's giving dangerous medical advice, encouraging people to hurt others, and coaching people to commit suicide, all while pretending to be their fake friend. In a statement, OpenAI told me that the company is focused on product safety. In August, it introduced ChatGPT for teens, a suite of product features with enhanced guardrails and parental controls.

We've built industry-leading age-specific protections into our product that many other AI products lack, the company said. While no system can be perfect, we'll continue to work with experts to inform our work and build additional safeguards such as the parental controls, break reminders, and age-appropriate model protections that exist today. We're committed to working with states on advancing pragmatic AI policies to apply to the entire AI industry, not just one company. End quote. While these cases against OpenAI may be the most significant to date, they are far from the first. There are now dozens of private suits against the company, and governments are taking notice as well. Florida became the first state to sue OpenAI in June, and British Columbia sued last month over the Tumbler Ridge school shooting. And 42 states led by New York are investigating the company over a wide range of issues related to product safety and privacy. More importantly, I think, the cases come at a time when juries are increasingly willing to hold platforms accountable for what they perceive as the design flaws in their products.

The litigation brought by AGs in 2023 against Meta resulted in a settlement that could see the company paying out up to $18 billion over claims that it designed its products to be addictive to children. Worse, from OpenAI's perspective, is that Meta arguably had better legal protections heading into its cases than OpenAI does now.

Two, for most of the life of the Internet, when a state or a grieving family sued a tech platform over something bad that happened to a user, the company's first legal move was to invoke Section 230 of the Communications Decency Act. The law shields companies in most cases from legal liability over what their users post. Platforms often used it to get cases quickly dismissed. But recently, plaintiffs' lawyers have successfully tested a novel theory of liability in the courts. Platforms may not be liable for users' speech, they argued, but they can be held liable for their platforms' design. And so if you're SNAP and give users a filter that encourages them to show how fast they're going in a car, and some users then go 113 miles per hour and get in a terrible crash, Section 230 does not bar a claim over that design feature, according to the Ninth Circuit's 2021 ruling. SNAP eventually settled the case. In the wake of that case, lawyers filed more than 200 lawsuits against platforms based on product liability claims. In March, they scored two major wins. In one, a Los Angeles jury found Meta and YouTube liable for negligently designing addictive platforms and awarded a 20-year-old woman $6 million. Meta and Google argued the verdict violated Section 230 and the First Amendment. The judge denied them a new trial, and the case is on appeal.