Latest / Question Everything / We Went to the Trial That Could Force Meta to Change its Ways

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We Went to the Trial That Could Force Meta to Change its Ways · Question Everything

• 0:01
  Speaker 1: From Placement Theory and KCRW, I'm Brian Reed. This is
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  Speaker 1: Question Everything, where we investigate how the truth gets buried, distorted, denied,
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  Speaker 1: and the ways people are fighting to make it matter again.
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  Speaker 1: Today on the show, a legal showdown out west with
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  Speaker 1: one of the world's biggest tech companies.
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  Speaker 2: People may not want to provide their ID to do
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  Speaker 2: things as simple as read the news, converse with friends
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  Speaker 2: and family.
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  Speaker 3: I'm talking about Meta's platforms.
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  Speaker 4: My concerns are just for Meta's platforms where unlike any
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  Speaker 4: other company, we've been through a whole trial and there
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  Speaker 4: was a determination about just how unsafe it is.
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  Speaker 5: Stick around.
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  Speaker 3: Good morning, Your Honor.
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  Speaker 6: On behalf of Attorney General Raul Torres, the New Mexico
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  Speaker 6: Department of Justice, and the trial team here, we appreciate
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  Speaker 6: the opportunity to present evidence to you here in Phase 2.
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  Speaker 1: Right now, as I speak, a state judge in New
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  Speaker 1: Mexico is trying to make a very consequential decision. It's
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  Speaker 1: in the second phase of the case that the state
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  Speaker 1: of New Mexico brought against Meta. The judge's name is
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  Speaker 1: Brian Biedscheid, and he presided over the first phase of
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  Speaker 1: the trial this winter, where a New Mexico jury heard
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  Speaker 1: weeks of testimony about state investigators who built these fake
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  Speaker 1: accounts of children and how those accounts ended up showing
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  Speaker 1: that the design of Facebook and Instagram let sexual predators
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  Speaker 1: target kids on a massive scale. New Mexico's attorney general
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  Speaker 1: called Meta's apps the largest marketplace for predators and pedophiles globally.
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  Speaker 1: We did an episode about that part of the trial
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  Speaker 1: a few weeks ago. If you didn't hear it, go
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  Speaker 1: to our feed and give it a listen. We'll also
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  Speaker 1: link in the show notes. It's called The Sting That
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  Speaker 1: Exposed How Meta Endangers Kids. All right, you all caught up? Good,
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  Speaker 1: because spoiler here, the jury sided with New Mexico in
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  Speaker 1: that phase of the case. They found that Meta was
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  Speaker 1: liable for endangering kids and ordered the company to pay
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  Speaker 1: $ 375 million in penalties. And now there's this second phase
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  Speaker 1: of the same case. That first phase was decided by
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  Speaker 1: a jury, but this one isn't. It's being decided by
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  Speaker 1: one person. Judge Beechide.
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  Speaker 7: It's good to have you all back. With that, do
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  Speaker 7: you have something else.
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  Speaker 8: That we should address?
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  Speaker 1: He has to decide two things. How much more money
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  Speaker 1: Meta should have to pay to fund things like community
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  Speaker 1: health centers and counseling for kids. That could cost Meta
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  Speaker 1: another billion dollars. Plus, and this is arguably a bigger deal,
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  Speaker 1: Judge Beechide is going to decide what, if any, changes
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  Speaker 1: Meta should be required to make to its platforms, Instagram
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  Speaker 1: and Facebook and WhatsApp, in order to keep kids safe.
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  Speaker 1: The state is... has a seven-page list of proposals. And
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  Speaker 1: these are significant changes. If the judge forces Mena to
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  Speaker 1: make even some of them, they'd be the first of
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  Speaker 1: their kind in the U.S. and could have a huge
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  Speaker 1: impact on protecting kids, but also they could really affect
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  Speaker 1: how all of us interact online and use Instagram and Facebook,
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  Speaker 1: especially as other states are starting to bring similar cases
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  Speaker 1: by looking to New Mexico as a model. Our producer
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  Speaker 1: Zach St. Louis went to Santa Fe for the second
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  Speaker 1: phase of this trial where the judge was considering all
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  Speaker 1: this and has spent weeks digging through documents and talking
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  Speaker 1: to people involved with the case. He's here now. Hey, Zach.
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  Speaker 7: Hello.
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  Speaker 1: Okay, so this list of recommendations that New Mexico wants
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  Speaker 1: to see Meta make to its apps, just give me
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  Speaker 1: an overview. Like, what are some of them?
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  Speaker 7: Okay, yeah.
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  Speaker 9: So it's things like eliminating addictive features on the apps,
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  Speaker 9: no infinite scroll, no autoplay, getting rid of push notifications
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  Speaker 9: during school hours, during sleep hours, mandatory time limits, a
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  Speaker 9: bunch of things like that.
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  Speaker 5: Just for kids, just in New Mexico.
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  Speaker 1: Under 18.
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  Speaker 5: Under 18.
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  Speaker 7: Okay.
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  Speaker 1: Are there any recommendations you... expect the judge to probably
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  Speaker 1: agree to? I know we don't know for sure, but
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  Speaker 1: that seemed like an easier yes for him.
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  Speaker 9: Yeah, I mean, there was one that kind of stood
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  Speaker 9: out to me, and that is allowing law enforcement in
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  Speaker 9: New Mexico to be able to operate undercover accounts on
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  Speaker 9: Facebook and Instagram. Meta currently doesn't allow those accounts on
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  Speaker 9: their platforms. It's against their policy.
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  Speaker 6: Right.
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  Speaker 1: These are officers pretending to be teens, basically, like we
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  Speaker 1: heard about in our last episode. They make a fake
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  Speaker 1: account for a 13-year-old. And then if and when a
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  Speaker 1: predator contacts them, they lure the predator in and can
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  Speaker 1: use it to arrest them.
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  Speaker 6: Yeah.
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  Speaker 9: And so Meta will shut down the account sometimes mid-investigation.
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  Speaker 9: And that is obviously a challenge for these investigators. They
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  Speaker 9: lose a lot of the work that they've done. They
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  Speaker 9: lose the leads.
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  Speaker 2: OK.
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  Speaker 1: And so why do you think like the judge might
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  Speaker 1: rule in favor of the state on this one?
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  Speaker 9: I think it's because the state's evidence was pretty clear.
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  Speaker 9: These accounts help us. So that was easy to understand.
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  Speaker 9: And then on the other side, Meta's defense of why
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  Speaker 9: we don't want these accounts, to me, seems pretty thin.
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  Speaker 9: And you could hear the judge asking questions of Meta's witness,
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  Speaker 9: saying that these accounts were harmful in some way or
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  Speaker 9: they were bad. And he wasn't quite getting what she.
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  Speaker 5: Was saying either.
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  Speaker 1: Can you play me any of this?
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  Speaker 5: Yeah, I can.
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  Speaker 7: I can.
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  Speaker 9: And so this is the first voice you're going to
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  Speaker 9: hear is Judge Biedscheid asking the question of Meta's witness.
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  Speaker 9: And this is Meta's head of global policy. Her name's
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  Speaker 9: Monica Bickert.
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  Speaker 7: Why is it.
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  Speaker 8: Not logical to let law enforcement on to try to
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  Speaker 8: do some of the policing you can't?
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  Speaker 10: For a couple reasons.
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  Speaker 11: One is they would themselves normalize dangerous behavior just by
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  Speaker 11: having the accounts.
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  Speaker 10: And they would themselves post harmful content.
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  Speaker 1: She's saying that having undercover cops normalizes bad behavior. What
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  Speaker 1: does that mean?
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  Speaker 9: I think what she's trying to say is that by
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  Speaker 9: having cops pretend to be kids that are engaging in
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  Speaker 9: chats with predators, pedophiles, that it's somehow normalizing pedophilia on
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  Speaker 9: the apps, that it's creating a space where more of
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  Speaker 9: that conversation can happen. And it makes Facebook and Instagram
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  Speaker 9: seem to predators like places where they can have those
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  Speaker 9: conversations and therefore normalizes it. But on the meantime, like
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  Speaker 9: these investigators are saying, this is how we actually catch predators.
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  Speaker 5: Yeah, exactly.
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  Speaker 1: She got anything else?
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  Speaker 9: Yeah, so she also says that it violates Meta's policy.
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  Speaker 9: That's a big one she keeps coming back to, that
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  Speaker 9: it violates the policy.
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  Speaker 11: One of our policies right now is literally, it says
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  Speaker 11: you can't have a fake account and we go after it.
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  Speaker 10: And we publish numbers on that.
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  Speaker 11: That we would have to change that policy line to say,
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  Speaker 11: you can't have a fake account unless you are law enforcement.
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  Speaker 10: It fundamentally changes the nature of the site.
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  Speaker 7: Okay.
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  Speaker 6: Why?
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  Speaker 10: Because right now.
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  Speaker 1: That's the judge?
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  Speaker 5: Yeah, you can almost hear him squinting. Like, why?
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  Speaker 11: Because right now, one of our core values is authenticity.
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  Speaker 11: I mean, a part of this site is when you
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  Speaker 11: come to it, you know who you're talking to.
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  Speaker 8: You're assuming that... Everyone is following your policy. Everyone is authentic.
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  Speaker 8: Everyone's doing a good thing. And law enforcement would enter
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  Speaker 8: some contamination or impurity into that ecosystem, which I haven't
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  Speaker 8: heard a lot of evidence to suggest that. I mean,
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  Speaker 8: it seems like you've already got problems with people doing inappropriate.
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  Speaker 5: Things on Facebook or Instagram.
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  Speaker 8: And I'm just trying to figure out what is actually
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  Speaker 8: the harm of an incremental– We're going to let on
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  Speaker 8: five undercover accounts in order to hopefully remove 10.
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  Speaker 7: Why is that so problematic?
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  Speaker 1: Okay, so yeah, it does seem like the judge is
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  Speaker 1: pretty skeptical of that one.
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  Speaker 5: And to me, her answer isn't that great.
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  Speaker 9: It's just like they're violating our policies.
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  Speaker 1: And also, I mean, we've reported on this show about
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  Speaker 1: like Reuters reporting about how many fake ads and scams
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  Speaker 1: and just like the amount of fakeness and inauthentic content.
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  Speaker 1: That there is on Facebook.
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  Speaker 7: Yeah.
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  Speaker 1: So to say like, oh, well, we can't let like
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  Speaker 1: undercover cops come on here and help find predators because
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  Speaker 1: we're so, you know, committed to authenticity is kind of
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  Speaker 1: infuriating actually.
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  Speaker 5: Yeah, definitely.
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  Speaker 6: Okay.
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  Speaker 1: And are there any proposals from the state that the
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  Speaker 1: judge seemed not as into or to have more questions
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  Speaker 1: about than others?
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  Speaker 9: Yeah, well, there was one that seemed the most vague,
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  Speaker 9: I will say. And you could kind of hear them
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  Speaker 9: wrestling with that in court. And that's this request from
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  Speaker 9: the state for what they're calling a child safety monitor,
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  Speaker 9: which is a person who will be appointed by the
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  Speaker 9: court to make sure that Meta is complying with whatever
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  Speaker 9: the judge's order is. Whatever of these recommendations from this
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  Speaker 9: menu that he picks, this person will be in charge
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  Speaker 9: of making sure that Meta is holding up their end
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  Speaker 9: of the bargain.
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  Speaker 1: Is this a regulator?
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  Speaker 9: It's actually kind of unclear exactly what they think the
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  Speaker 9: parameters of the monitor will be, if they're going to
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  Speaker 9: act like a regulator or not.
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  Speaker 5: What its authority is. What its authority is.
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  Speaker 9: Meta pointed out over and over again that the state's
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  Speaker 9: plan was vague, and this all seemed like an overreach
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  Speaker 9: to allow this monitor to make decisions about how they
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  Speaker 9: run this massive company.
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  Speaker 1: Yeah, that raises a whole other set of questions, I imagine,
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  Speaker 1: for the judge. Like, okay, teens in New Mexico, if
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  Speaker 1: I I'm a teen on vacation with my family from
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  Speaker 1: Ohio in New Mexico. Am I a teen in New
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  Speaker 1: Mexico and suddenly my account gets shut down? And how
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  Speaker 1: does that work when I'm visiting, you know, Roswell?
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  Speaker 7: Exactly.
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  Speaker 9: And, you know, the other way around, too, if you're
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  Speaker 9: a teen that sets up their account in New Mexico,
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  Speaker 9: but you move to New Jersey, like, are you allowed
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  Speaker 9: to appeal to META to get these restrictions lifted? And
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  Speaker 9: that is exactly the kind of question that the judge
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  Speaker 9: was trying to puzzle through. Like, the judge was asking,
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  Speaker 9: how would that work for someone visiting New Mexico?
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  Speaker 10: Yeah.
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  Speaker 9: And when it came to the monitor and the judge
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  Speaker 9: was asking the state's witness who came up with the
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  Speaker 9: monitor plan about the specifics, the witness's answer kind of
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  Speaker 9: repeatedly was, well, that would be up to you to
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  Speaker 9: figure out, judge. So it was like a game of
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  Speaker 9: hot potato, you know, like who's actually going to be
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  Speaker 9: responsible for coming up with exactly how this monitor would work.
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  Speaker 1: Interesting.
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  Speaker 7: Okay.
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  Speaker 1: And then I know like there's kind of one proposal
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  Speaker 1: on this list that is maybe like, arguably the most
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  Speaker 1: impactful and maybe the most controversial. Is that fair to say?
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  Speaker 5: I think that's right.
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  Speaker 1: And what is that?
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  Speaker 9: I mean, it's the one that we're going to spend
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  Speaker 9: the bulk of today's episode about, and it's because it seems,
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  Speaker 9: you know... Maybe deceptively simple on its face, but if
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  Speaker 9: you start to pull on the thread, it really reveals
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  Speaker 9: a lot of far-reaching implications that go way beyond, and
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  Speaker 9: that is age verification.
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  Speaker 1: This is basically requiring people, including kids, to prove that
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  Speaker 1: they're of a certain age to be able to use
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  Speaker 1: Instagram and Facebook.
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  Speaker 9: Yes, both to be able to prove that they're 13,
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  Speaker 9: which is the age required to use Instagram and Facebook,
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  Speaker 9: and to know the ages of kids between 13 and 17,
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  Speaker 9: which is the ages that you get put into these
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  Speaker 9: special teen accounts that have more restrictions on them.
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  Speaker 1: And I'm just curious, like, did New Mexico ever put forward, like,
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  Speaker 1: the idea that they should just ban teenagers from Instagram
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  Speaker 1: and Facebook altogether, like the way that Australia does for
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  Speaker 1: kids under 16 or the U.K.
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  Speaker 9: No, that wasn't a part of this trial. They were
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  Speaker 9: really focused on the changes. Some states have tried to
• 11:10
  Speaker 9: pass laws about banning kids under a certain age from
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  Speaker 9: social media, but it wasn't.
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  Speaker 5: A part of this trial.
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  Speaker 1: That's more like a legislative thing.
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  Speaker 5: Yeah, typically it seems like it's more of a legislative thing.
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  Speaker 1: Okay, got it. All right, and then when it comes
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  Speaker 1: to age verification, I imagine it's kind of necessary to
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  Speaker 1: implement a lot of the other changes on the menu too,
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  Speaker 1: because if there are certain changes that only apply to kids, again,
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  Speaker 1: you need to really be certain who's a kid.
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  Speaker 7: Yeah, exactly.
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  Speaker 9: So it kind of is the backbone of a lot
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  Speaker 9: of the recommendations. And this change, age verification, like all
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  Speaker 9: of the requests on the state's list, they all have
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  Speaker 9: this central tension at their core where it's about protecting
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  Speaker 9: kids online on one side and everyone else's right to
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  Speaker 9: privacy and free speech on the other. Some of the
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  Speaker 9: questions it raises are, how do you verify kids' ages?
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  Speaker 5: Like, how do you actually do it?
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  Speaker 9: If you're verifying kids' ages, does that mean that you
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  Speaker 9: have to verify adults' ages too? What does age verification
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  Speaker 9: mean for adults contacting kids? Can an adult contact just
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  Speaker 9: any kid? Is that conversation private? That's a big question
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  Speaker 9: in all of this. And how will the judge's decision
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  Speaker 9: only contain all of that within the borders of New
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  Speaker 9: Mexico when there's people on social media connected way beyond
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  Speaker 9: state lines all over the world? So I think it's
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  Speaker 9: that recommendation more than any of the others that raises
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  Speaker 9: a lot of questions that reach beyond just teens in
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  Speaker 9: New Mexico and could have implications for all of us everywhere.
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  Speaker 7: Got it.
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  Speaker 1: You heard the different testimony back and forth across examinations.
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  Speaker 1: And that's what you're going to tell us about today,
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  Speaker 1: like what the judge heard that he's now basing his
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  Speaker 1: decision on.
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  Speaker 7: Yep.
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  Speaker 1: And then also we're going to hear from this one
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  Speaker 1: expert witness for the state of New Mexico who, you know,
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  Speaker 1: I've just found made a really moving and interesting and
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  Speaker 1: forceful argument for age verification that I had not clocked
• 12:55
  Speaker 1: into yet. I'm excited for you to share what you found, Zach.
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  Speaker 9: I first got to the courtroom in Santa Fe on
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  Speaker 9: a Monday morning in May, where Judge Brian Biedscheid was presiding.
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  Speaker 9: He's the chief judge of New Mexico's first judicial court,
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  Speaker 9: and the father of a teenage son, which, in a
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  Speaker 9: case that involves him ordering Meta to make changes to
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  Speaker 9: their apps to protect teens online, seems relevant. Prior to
• 13:21
  Speaker 9: this trial, some of his most notable moments as a
• 13:23
  Speaker 9: judge have been a handful of rulings that called for
• 13:26
  Speaker 9: clearer regulation of cannabis in New Mexico... He even played
• 13:29
  Speaker 9: a small role in the case involving Alec Baldwin, where
• 13:32
  Speaker 9: Baldwin fired a prop gun on the set of a
• 13:34
  Speaker 9: movie that killed the cinematographer. The judge granted a subpoena
• 13:37
  Speaker 9: request to interview the assistant director. But this case against
• 13:41
  Speaker 9: Mehta is the only one that has put him squarely
• 13:44
  Speaker 9: in the national spotlight. Beachside is in his mid-50s, gray hair, glasses,
• 13:48
  Speaker 9: a friendly smile, self-effacing, not afraid to crack jokes, and
• 13:53
  Speaker 9: thoughtful about the case, yes, but also about his role
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  Speaker 9: in it. deciding whether to accept or reject New Mexico's
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  Speaker 9: suggestions to change Meta's apps and the limits of that role.
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  Speaker 9: On the first day of this phase of the trial,
• 14:06
  Speaker 9: before opening statements, he laid out his mission, what he's
• 14:10
  Speaker 9: keeping in mind when it comes to this long list
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  Speaker 9: of proposed changes from the state.
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  Speaker 7: I am a judge. I am not a legislator. I
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  Speaker 7: am not a regulator.
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  Speaker 8: I'm just going to throw out there at the outset
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  Speaker 8: that I'm probably not the easiest sell on an idea
• 14:29
  Speaker 8: where I would become a one-person legislature judge and executive
• 14:37
  Speaker 8: branch enforcer. So it did stand out for me as
• 14:43
  Speaker 8: I looked at the requested relief.
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  Speaker 7: Some of these requests could amount to some of that overreach.
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  Speaker 8: So I want to make sure you all know I
• 14:52
  Speaker 8: don't want to be mysterious and opaque and have those
• 14:55
  Speaker 8: concerns and then not express them at the outset.
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  Speaker 9: Addressing the two teams of lawyers, he reminds me of
• 15:00
  Speaker 9: a high school teacher who talks to his students like
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  Speaker 9: adults with a tone of, okay, guys, I'm going to
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  Speaker 9: level with you here.
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  Speaker 8: I do want to make sure that everyone's clear that
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  Speaker 8: what I need to do, just like we had to
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  Speaker 8: do in phase one, is remain cognizant of section 230
• 15:17
  Speaker 8: and free speech protections, but make sure that what Whatever
• 15:24
  Speaker 8: the decision is about the nature of the harm and
• 15:28
  Speaker 8: ways to address it, that it is within those parameters.
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  Speaker 5: Well, Your Honor mentioned Section 230. I need to go
• 15:36
  Speaker 5: research what that is, and then we'll hold it.
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  Speaker 9: Yeah, that's a Section 230 joke from Metta's lawyer, Alex Parkinson.
• 15:45
  Speaker 9: It's nerdy, but it gets some laughs. The joke is
• 15:48
  Speaker 9: that he's acting like he's never heard of Section 230 before,
• 15:50
  Speaker 9: when Section 230 is a pillar of META's defense. Even
• 15:54
  Speaker 9: New Mexico's lawyers and Judge Beechneid chuckled.
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  Speaker 7: That's right.
• 15:58
  Speaker 8: I understand I'm talking about complicated First Amendment rights and
• 16:02
  Speaker 8: things that you guys wouldn't be aware of.
• 16:04
  Speaker 9: Clearly, there's an existing rapport between everyone here, something that
• 16:08
  Speaker 9: was no doubt established during the first phase of the trial.
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  Speaker 9: I was in the small courtroom for the whole first
• 16:13
  Speaker 9: week of the second phase of this trial. the judge's
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  Speaker 9: bench in the center, tables for the two legal teams
• 16:18
  Speaker 9: across from him, and a few rows of benches in
• 16:21
  Speaker 9: the back of the room, which is where our executive
• 16:23
  Speaker 9: producer Robin Semien and I sat each day, scribbling into
• 16:26
  Speaker 9: our notebooks. There was some other press there for the
• 16:29
  Speaker 9: first day, but after that, Robin and I were usually
• 16:32
  Speaker 9: the only two reporters in the room. Often, we were
• 16:35
  Speaker 9: the only two laypeople there. Most everyone else was on
• 16:38
  Speaker 9: one of the legal teams, a witness, or court staff.
• 16:41
  Speaker 9: On the left side of the room was a jury
• 16:43
  Speaker 9: box that sat empty. It was empty because, as we mentioned,
• 16:47
  Speaker 9: there was no jury for this phase of the trial.
• 16:50
  Speaker 9: Everything that happened in this courtroom over these three weeks
• 16:53
  Speaker 9: was for an audience of one.
• 16:55
  Speaker 5: The only opinion that mattered. Judge Beachside.
• 16:59
  Speaker 9: Metta's lawyer, Alex Parkinson, stood in front of Judge Beachside
• 17:02
  Speaker 9: to make his opening arguments. And he argued that Metta
• 17:05
  Speaker 9: shouldn't have to make any of the changes on the
• 17:07
  Speaker 9: state's seven-page list. There is no legal regime on earth
• 17:11
  Speaker 9: that is even close to the injunctive relief that the
• 17:14
  Speaker 9: state seeks. The injunctive relief the state seeks, if granted
• 17:17
  Speaker 9: in full, would genuinely make it untenable to continue offering
• 17:20
  Speaker 9: META's products in this state. This is not a PR stunt.
• 17:23
  Speaker 9: It is not a threat. It is the reality of
• 17:25
  Speaker 9: the seven-page relief plan that they provided to your honor.
• 17:28
  Speaker 9: The state is asking you to make a series of
• 17:31
  Speaker 9: the most far-reaching judicial decisions on these issues ever. He
• 17:35
  Speaker 9: argued that what the state is asking for is an
• 17:37
  Speaker 9: overreach of the law. Meta says they could choose to
• 17:40
  Speaker 9: do some of these things if they want to, but
• 17:42
  Speaker 9: they don't think they should be forced to do a
• 17:44
  Speaker 9: single one. Pair that position, a giant company saying, you
• 17:49
  Speaker 9: can't force us, with the mission of the witnesses the
• 17:52
  Speaker 9: state assembled, who are mostly people who have dedicated their
• 17:55
  Speaker 9: careers to protecting kids, child safety experts, psychologists, researchers, people
• 18:01
  Speaker 9: who want to see the court force Meta to change.
• 18:04
  Speaker 9: The contrast was sometimes bizarre and off-putting. Like, Here's a meta-lawyer,
• 18:09
  Speaker 9: Isaac Chaput, cross-examining one of the state's witnesses. Her name
• 18:13
  Speaker 9: is Fallon McNulty. She's a forensic psychologist who's currently the
• 18:17
  Speaker 9: executive director of the Exploited Children Division at the National
• 18:20
  Speaker 9: Center for Missing and Exploited Children, or NCMEC.
• 18:24
  Speaker 6: Ms.
• 18:24
  Speaker 12: McNulty, have you ever designed a child safety tool for
• 18:28
  Speaker 12: a social media company?
• 18:32
  Speaker 2: I have not.
• 18:33
  Speaker 10: And you've never built a machine learning classifier, right?
• 18:37
  Speaker 1: I have not.
• 18:38
  Speaker 10: You have never tested the accuracy of a machine learning classifier? No,
• 18:44
  Speaker 10: I have not.
• 18:45
  Speaker 12: You have never built a heuristic to identify accounts involved
• 18:50
  Speaker 12: in potentially suspicious behavior?
• 18:53
  Speaker 10: No, I have never worked for a social media company.
• 18:56
  Speaker 9: She was on Zoom, projected into the courtroom, and she
• 18:58
  Speaker 9: was so composed. In contrast to Meta's lawyer, who was fuming,
• 19:02
  Speaker 9: sometimes shouting at her. Like, when he tried to drive
• 19:05
  Speaker 9: home the points Shouldn't Congress address these issues instead of
• 19:09
  Speaker 9: the courts?
• 19:10
  Speaker 12: In spite of NCMEC's advocacy in 2023, 2024, 2025, and
• 19:16
  Speaker 12: as recently as 2026, Congress has not passed the Stop
• 19:20
  Speaker 12: CSAM Act, correct?
• 19:22
  Speaker 10: Not at this time.
• 19:23
  Speaker 6: Okay.
• 19:24
  Speaker 12: And so because Congress won't change the law, NCMEC wants
• 19:27
  Speaker 12: this court to order META to do what the Stop
• 19:31
  Speaker 12: CSAM Act would require.
• 19:32
  Speaker 10: Isn't that true?
• 19:33
  Speaker 9: I get that Mehta's lawyer is supposed to be a
• 19:35
  Speaker 9: forceful advocate for his client. But still, hearing him cross-examine
• 19:40
  Speaker 9: a child exploitation expert in this way, it was kind
• 19:43
  Speaker 9: of like watching someone punch a nun in the face.
• 19:52
  Speaker 9: The expert witness who the state called to back up
• 19:54
  Speaker 9: its proposal for age verification on Meta's apps was Dr.
• 19:58
  Speaker 5: Brian Levine.
• 19:59
  Speaker 7: Dr.
• 20:00
  Speaker 9: Levine is a computer science professor at UMass Amherst, where
• 20:03
  Speaker 9: his research focuses on thwarting child sexual exploitation online. He
• 20:07
  Speaker 9: co-directs something called the Rescue Lab, which creates tools that
• 20:11
  Speaker 9: are used by investigators across the country to track down predators,
• 20:15
  Speaker 9: including predators on social media platforms like Instagram and Facebook.
• 20:19
  Speaker 7: Dr.
• 20:19
  Speaker 9: Levine has provided reports and testimony about his research in
• 20:22
  Speaker 9: several trials, and the state of New Mexico paid him
• 20:25
  Speaker 9: to do that here. Right now, when new users sign
• 20:28
  Speaker 9: up for Meta's apps, Facebook, Instagram, the company simply asks
• 20:32
  Speaker 9: them to state their age. The honor system, essentially. Then,
• 20:37
  Speaker 9: if Meta gets clues from the user's behavior that maybe
• 20:40
  Speaker 9: they lied about their age, that they're under 13, they
• 20:43
  Speaker 9: might look into it. Do some more checks. As an
• 20:46
  Speaker 9: expert in how to prevent child exploitation, Dr. Levine says
• 20:50
  Speaker 9: that Meta should now be legally required to confirm everyone's
• 20:53
  Speaker 9: ages when they sign up for Instagram or Facebook in
• 20:55
  Speaker 9: New Mexico.
• 20:56
  Speaker 5: No more honor system.
• 20:58
  Speaker 4: They have elected to put up a platform for 13
• 21:00
  Speaker 4: and above that they say is not safe for children
• 21:03
  Speaker 4: under that age. And as I've said, the Teen accounts
• 21:06
  Speaker 4: and other mechanisms that they have in place are dependent
• 21:08
  Speaker 4: on knowing the person's age. So you can't protect kids
• 21:11
  Speaker 4: if you don't know that they're kids. And you can't
• 21:14
  Speaker 4: protect them from adults if you don't know that adults
• 21:16
  Speaker 4: are adults. It's just a base fact of where we are.
• 21:19
  Speaker 9: Levine and the state want Meta to do with social
• 21:21
  Speaker 9: media what we do with bars. Check everyone's ages at
• 21:24
  Speaker 9: the door, not just ask them to promise the bouncer
• 21:27
  Speaker 9: that they're old enough to come in. Meta's lawyer, Dan Doris,
• 21:31
  Speaker 9: went hard on Dr.
• 21:32
  Speaker 6: Levine.
• 21:33
  Speaker 9: He tried to impeach Dr. Levine as a witness by
• 21:35
  Speaker 9: getting him to contradict some of his prior testimony.
• 21:38
  Speaker 10: Dr.
• 21:38
  Speaker 2: Levine, at trial earlier in phase one, you were asked,
• 21:41
  Speaker 2: have you named any company today in the entire world
• 21:43
  Speaker 2: that does a better job? Answer, that was not what
• 21:46
  Speaker 2: I set out to do in this report, nor was
• 21:48
  Speaker 2: I asked to. This is a case about Meta, not
• 21:51
  Speaker 2: other companies.
• 21:52
  Speaker 1: Is that correct?
• 21:53
  Speaker 9: But like he did throughout his testimony, Dr. Levine fought
• 21:55
  Speaker 9: back against the attorney's jabs.
• 21:57
  Speaker 4: So can I point out the obvious, counsel, that this
• 22:00
  Speaker 4: question was not a yes or no question, and I
• 22:02
  Speaker 4: was clarifying why I could not do that. I wasn't
• 22:06
  Speaker 4: saying that there was a better company. I mean, I'll
• 22:10
  Speaker 4: just leave it for everyone.
• 22:11
  Speaker 8: I will just cut this off right now and say
• 22:13
  Speaker 8: I do not believe that constituted impeachment.
• 22:17
  Speaker 1: Fair enough.
• 22:18
  Speaker 7: Dr.
• 22:19
  Speaker 2: Levine, my apologies on that.
• 22:21
  Speaker 13: Dr.
• 22:21
  Speaker 2: Levine, I did not mean to twist your words.
• 22:23
  Speaker 7: Sorry.
• 22:23
  Speaker 3: I think you did.
• 22:24
  Speaker 1: I don't think I did, but that's okay.
• 22:27
  Speaker 9: A big part of the discussion when Dr. Levine was
• 22:29
  Speaker 9: on the stand was, how would this whole age-checking thing
• 22:32
  Speaker 9: actually work? Does a user always need to show an ID?
• 22:35
  Speaker 9: How many 13-year-olds have IDs? Levine suggested more things could
• 22:40
  Speaker 9: work here besides an ID, like maybe credit cards or
• 22:43
  Speaker 9: other documents. But Judge Beachside pushed back on Levine, saying
• 22:48
  Speaker 9: those don't seem so easy for 13-year-olds either.
• 22:51
  Speaker 7: Credit card, not sure how effective that will be. Driver's license,
• 22:55
  Speaker 7: pretty advanced at 13. Correct, Your Honor. So, other than.
• 23:01
  Speaker 8: The face recognition, which I heard some testimony might be difficult.
• 23:05
  Speaker 7: As well at that age, what are your thoughts for
• 23:08
  Speaker 7: providing insurance?
• 23:10
  Speaker 3: So, thank you, Your Honor.
• 23:12
  Speaker 4: Meta just released a press release that said that they're
• 23:15
  Speaker 4: looking at the, I believe it was like hands and
• 23:19
  Speaker 4: other body parts or height of a person, like those
• 23:21
  Speaker 4: kind of clues can be available to them.
• 23:23
  Speaker 1: Here, Dr.
• 23:24
  Speaker 9: Levine is talking about an announcement Meta made just two
• 23:27
  Speaker 9: days before this testimony. They announced new AI tools that
• 23:31
  Speaker 9: could scan photos and videos of users on their platforms
• 23:34
  Speaker 9: to look at height and bone structure to estimate age.
• 23:37
  Speaker 9: They said it was designed to keep kids under 13
• 23:40
  Speaker 9: off their apps.
• 23:42
  Speaker 4: Dr.
• 23:42
  Speaker 9: Levine had no problem with this idea, but he would
• 23:45
  Speaker 9: like Meta to use these tools to get their accuracy
• 23:47
  Speaker 9: rate higher, and he said that Meta shouldn't be trusted
• 23:50
  Speaker 9: to do it on their own. that the court should
• 23:52
  Speaker 9: force Metta to do it and continue to hold them
• 23:54
  Speaker 9: accountable for years. If none of these other options work,
• 23:58
  Speaker 9: Levine said teens could get a trusted adult to vouch
• 24:01
  Speaker 9: for their ages.
• 24:02
  Speaker 4: This is a waterfall method where you move on from there.
• 24:04
  Speaker 4: You say, okay, well then specifically let's go to parents,
• 24:07
  Speaker 4: for example, or let's go to teachers or let's go
• 24:10
  Speaker 4: to judges. And I think, you know, and then you
• 24:13
  Speaker 4: do the best you can, but to not, even if
• 24:15
  Speaker 4: that level of specificity is not perfect, it's better than
• 24:18
  Speaker 4: just saying, let's just ask them.
• 24:20
  Speaker 9: Even as a last resort, a 13-year-old having to go
• 24:23
  Speaker 9: in front of a judge to get on Instagram, as
• 24:26
  Speaker 9: Judge Beechide wryly noted, that's a whole thing.
• 24:30
  Speaker 8: I'm sure your average 13-year-old is very excited to come
• 24:33
  Speaker 8: to my courtroom. But it is possible that that would
• 24:38
  Speaker 8: seem like quite a hurdle. So I'm just worried. I
• 24:41
  Speaker 8: get parents would not be a hurdle.
• 24:43
  Speaker 7: Right.
• 24:43
  Speaker 3: Teachers may not be either.
• 24:45
  Speaker 7: I am trying to figure out if I order something.
• 24:49
  Speaker 5: Is it reasonable?
• 24:50
  Speaker 7: Is it reasonably likely to work?
• 24:53
  Speaker 9: Another thing that makes this complicated is that Meta would
• 24:56
  Speaker 9: have to know the ages of adults, too. But it's
• 24:59
  Speaker 9: one thing to flash your ID to a bouncer to
• 25:01
  Speaker 9: go get a beer, and another thing to upload it
• 25:03
  Speaker 9: to a big tech company that could have data breaches
• 25:06
  Speaker 9: or get subpoenaed by the government.
• 25:08
  Speaker 5: But as Dr.
• 25:09
  Speaker 9: Levine made it clear to the judge, there is technology
• 25:12
  Speaker 9: that makes it possible to verify your age without your
• 25:14
  Speaker 9: personal information getting stored somewhere. He talked about third-party companies
• 25:19
  Speaker 9: like Yoti that use a technology called zero-knowledge proof, which
• 25:23
  Speaker 9: looks at your ID to prove your age but then
• 25:25
  Speaker 9: deletes all of your identifying details. So all that anyone
• 25:29
  Speaker 9: can see is whether you are of age or not.
• 25:31
  Speaker 9: Proof with zero knowledge about your private information.
• 25:36
  Speaker 7: Dr.
• 25:36
  Speaker 9: Levine said that there are other ways to assure people's
• 25:38
  Speaker 9: ages without using an ID. Yoti offers some of those too.
• 25:42
  Speaker 9: Meta actually uses Yoti already for its Facebook dating service.
• 25:47
  Speaker 9: This is all very feasible, Dr.
• 25:49
  Speaker 5: Levine said.
• 25:55
  Speaker 9: When it was Meta's turn to call witnesses, they brought
• 25:57
  Speaker 9: out their chief compliance and privacy officer to explain how
• 26:00
  Speaker 9: the company enforces their age policy now. Meta says that
• 26:04
  Speaker 9: no one under 13 is allowed on their apps. And
• 26:07
  Speaker 9: since 2025, after New Mexico first filed this case, anyone
• 26:12
  Speaker 9: between 13 and 17 gets put into a teen account.
• 26:16
  Speaker 9: That's a special account that has more restrictions. The judge
• 26:19
  Speaker 9: asked Meta's executive, Michelle Prati, How.
• 26:22
  Speaker 7: Does Meta know who is a teen?
• 26:25
  Speaker 13: There's three main things we do under age assurance to
• 26:28
  Speaker 13: get that knowledge. One is, obviously, we collect their stated
• 26:33
  Speaker 13: age at registration. That's then supplemented by what we call
• 26:37
  Speaker 13: age prediction. We essentially use our machine learning capabilities and
• 26:43
  Speaker 13: the data we have to to make predictions on what
• 26:46
  Speaker 13: their actual age is.
• 26:48
  Speaker 9: Meaning, if people on Instagram start wishing someone a happy
• 26:51
  Speaker 9: 15th birthday, and the account is registered as belonging to
• 26:54
  Speaker 9: someone over 18, Meta's AI should catch that.
• 26:58
  Speaker 13: When we have signals that their actual age may differ
• 27:01
  Speaker 13: from their stated age, we interject with them and prompt
• 27:06
  Speaker 13: them to verify with, and we accept multiple means of verification.
• 27:11
  Speaker 13: Could be government IDs, could be facial selfies, and so on.
• 27:15
  Speaker 9: But New Mexico argued that Meta doesn't have a very
• 27:17
  Speaker 9: good track record when it comes to checking ages. For one,
• 27:21
  Speaker 9: remember from our last episode about this case, where undercover
• 27:24
  Speaker 9: investigators made a fake account for a 13-year-old girl named
• 27:27
  Speaker 9: Issa B. They entered a birthday that would make her
• 27:30
  Speaker 9: over 18, and Facebook approved her for an adult account.
• 27:34
  Speaker 9: But then, investigators uploaded photos of what looked like a
• 27:37
  Speaker 9: 13-year-old girl who posted about being in 7th grade. Meta's
• 27:42
  Speaker 9: age detection tools never flagged Issa B. as being underage,
• 27:45
  Speaker 9: even after a post where she said she'd just lost
• 27:47
  Speaker 9: her baby tooth. That was back in 2023. Meta's chief
• 27:51
  Speaker 9: compliance officer, Michelle Praddy, testified that Meta has since improved
• 27:55
  Speaker 9: how it checks kids' ages. He said that Meta's methods
• 27:58
  Speaker 9: are 89 to 90% accurate at determining when a minor
• 28:01
  Speaker 9: has lied about their age to avoid having a teen account,
• 28:04
  Speaker 9: and that they have roughly doubled the number of accounts
• 28:06
  Speaker 9: that they've been able to identify as being under 13.
• 28:10
  Speaker 9: How accurate is accurate enough when it comes to finding
• 28:13
  Speaker 9: kids under 13 who are on Facebook and Instagram is
• 28:16
  Speaker 9: a question that came up a lot in court. The
• 28:19
  Speaker 9: state recommended META get to 99% accuracy for rejecting accounts
• 28:24
  Speaker 9: of New Mexico kids under 13 who are pretending to
• 28:27
  Speaker 9: be older. Judge Beachside asked the state's expert, Brian Levine,
• 28:31
  Speaker 9: if that's possible.
• 28:32
  Speaker 14: Your view is that 95 would not be a reasonably
• 28:39
  Speaker 14: acceptable percentage standard that 99 is accomplishable and would be
• 28:46
  Speaker 14: the threshold.
• 28:47
  Speaker 4: Because they've set up, yes, Your Honor, because they've set
• 28:49
  Speaker 4: up the platform for 13 and above, and because of
• 28:52
  Speaker 4: the dangers that we've seen.
• 28:53
  Speaker 9: A question I had for Meta the whole time I
• 29:00
  Speaker 9: was watching the trial, watching them fight these changes wholesale,
• 29:03
  Speaker 9: shout at child safety experts in court, threaten to pull
• 29:06
  Speaker 9: their apps from New Mexico altogether, was, Why do you
• 29:10
  Speaker 9: think Meta shouldn't have to make any changes? Are you
• 29:13
  Speaker 9: really saying, with your history of child sex exploitation on
• 29:16
  Speaker 9: your platforms, that you don't even want to consider what
• 29:19
  Speaker 9: internet and child safety experts have to say at all?
• 29:23
  Speaker 9: It's a terrible position to have to defend. And the
• 29:26
  Speaker 9: people I most wanted to ask about it were Meta's lawyers.
• 29:32
  Speaker 9: During a break in the trial one day, I walked
• 29:34
  Speaker 9: up to one of their attorneys, Kevin Huff, to ask
• 29:37
  Speaker 9: if he'd talk to me. Hey, Mr.
• 29:39
  Speaker 13: Affleck, can I ask you a question?
• 29:40
  Speaker 5: I can't comment. Sorry, he said.
• 29:48
  Speaker 9: Later, Robin asked him if he could point us to
• 29:51
  Speaker 9: Meta's strongest defense witness.
• 29:53
  Speaker 5: He said no.
• 29:55
  Speaker 9: It was the same with the other attorneys when Robin
• 29:57
  Speaker 9: and I tried to talk to them. One after another,
• 30:00
  Speaker 9: they shut us down. One of them literally turned and
• 30:02
  Speaker 9: ran from Robin. Another lawyer nervously told me they didn't
• 30:07
  Speaker 9: know how many people were on their legal team. Then later,
• 30:10
  Speaker 9: even more nervously, approached me to ask that I don't
• 30:13
  Speaker 9: say they spoke to me at all. Stumped, we scribbled
• 30:16
  Speaker 9: our main question on the back of a handful of
• 30:18
  Speaker 9: our Question Everything business cards. They read, Can you give
• 30:22
  Speaker 9: me one reason Metta is resisting the state's changes to
• 30:25
  Speaker 9: protect kids? It isn't at all clear from cross-examinations. We
• 30:29
  Speaker 9: handed them out to every meta-lawyer we encountered, everywhere we could.
• 30:33
  Speaker 1: Okay, I'm shamelessly bothering you in the bathroom.
• 30:36
  Speaker 2: I know we're sitting next to each other. I'd love
• 30:38
  Speaker 2: to talk to you.
• 30:38
  Speaker 5: In my time, I wrote a question on the phone.
• 30:40
  Speaker 5: We'd really like to talk to someone from the team.
• 30:42
  Speaker 2: We're here from the end of the weekend. We're definitely
• 30:45
  Speaker 2: going to talk to someone from the state.
• 30:46
  Speaker 9: Of course, it's not that strange for lawyers from a
• 30:49
  Speaker 9: big corporation to avoid reporters during a trial. But if
• 30:52
  Speaker 9: they felt passionately about their defense, I thought maybe they
• 30:55
  Speaker 9: would offer something? Instead, the sense I got from their attitudes,
• 31:01
  Speaker 9: from their briefs and arguments, was that they didn't think
• 31:04
  Speaker 9: they should have to be in court in the first place.
• 31:06
  Speaker 9: Because for the most part, they haven't had to. For decades,
• 31:10
  Speaker 9: Section 230 has allowed Meta and other tech companies to
• 31:13
  Speaker 9: get cases like this one tossed out before they ever
• 31:16
  Speaker 9: have to face trial. So this was a very new
• 31:19
  Speaker 9: experience for Meta, and their attorneys seemed a bit annoyed.
• 31:22
  Speaker 9: sometimes making an exasperated gesture, like actually throwing up their
• 31:26
  Speaker 9: hands listening to some of the state's witnesses. At one point,
• 31:29
  Speaker 9: I saw a Meta lawyer roll his eyes at Dr.
• 31:31
  Speaker 6: Levine.
• 31:32
  Speaker 9: But eventually, Meta's lawyers did lay out their reasoning in
• 31:36
  Speaker 9: front of the judge when they confronted Dr. Levine with
• 31:39
  Speaker 9: evidence that hundreds of his colleagues, respected academic experts in technology,
• 31:44
  Speaker 9: disagree with his proposal on age verification.
• 31:48
  Speaker 5: That's after the break.
• 32:01
  Speaker 9: On the fourth day of the trial, after Judge Biedscheid
• 32:04
  Speaker 9: sat through over a dozen hours of testimony, Metta attorney
• 32:07
  Speaker 9: Dan Doris was questioning state's witness Dr. Brian Levine about
• 32:11
  Speaker 9: his age verification proposal. And Doris pulled up a letter
• 32:15
  Speaker 9: and displayed it on the big screen above the judge's head.
• 32:18
  Speaker 9: It was a joint statement signed by hundreds of security
• 32:20
  Speaker 9: scientists and privacy researchers around the world, Dr. Levine's peers...
• 32:25
  Speaker 9: who came to a consensus about requiring age verification online.
• 32:29
  Speaker 2: The joint statement, Privacy and Security Scientists, was signed by
• 32:35
  Speaker 2: 438 scientists across 32 countries and came out in March
• 32:41
  Speaker 2: 2026 of this year.
• 32:42
  Speaker 7: Isn't that correct? Okay. Is that correct? That's correct.
• 32:46
  Speaker 9: These scientists and researchers are against requiring age verification on
• 32:50
  Speaker 9: internet services, including on social media apps. They make a
• 32:54
  Speaker 9: handful of arguments, that the technologies for checking ages right
• 32:57
  Speaker 9: now are too easy to get around, that they're vulnerable
• 33:00
  Speaker 9: to data breaches. And even if they do work, there's
• 33:03
  Speaker 9: not enough research showing that restricting kids' access to social
• 33:06
  Speaker 9: media will help them. And they seem to worry that
• 33:09
  Speaker 9: once certain platforms like Instagram and Facebook are required to
• 33:12
  Speaker 9: do age checks, it'll be a slippery slope to governments
• 33:15
  Speaker 9: mandating widespread identity verification across the internet, which would make
• 33:20
  Speaker 9: the internet a very different place. where adults will have
• 33:23
  Speaker 9: to prove who they are to use platforms, not just metas,
• 33:26
  Speaker 9: to do all sorts of things that can currently be
• 33:29
  Speaker 9: done anonymously, or at least more privately. Like sources reaching
• 33:32
  Speaker 9: out to journalists, or activists trying to organize without the
• 33:35
  Speaker 9: government tracking them. The 438 experts call for a moratorium
• 33:40
  Speaker 9: on age verification policies, quote, until the scientific consensus settles
• 33:45
  Speaker 9: on the benefits and harms that age assurance technologies can bring,
• 33:49
  Speaker 9: and on the technical feasibility of such a deployment. Meta's lawyer,
• 33:53
  Speaker 9: Dan Doris, confronted Levine with this.
• 33:56
  Speaker 1: That letter, Dr.
• 33:57
  Speaker 2: Levine, had signatories from the United States, including professors from Princeton, Yale, MIT,
• 34:04
  Speaker 2: Carnegie Mellon, Brown, and a whole host of other universities, right?
• 34:09
  Speaker 5: Okay.
• 34:10
  Speaker 1: Is that correct?
• 34:12
  Speaker 7: Sure. Okay.
• 34:14
  Speaker 2: And Ronald Rivas signed that letter.
• 34:16
  Speaker 1: Do you know who?
• 34:17
  Speaker 7: Is that correct?
• 34:18
  Speaker 3: I think you're referring to Ron Rivest.
• 34:19
  Speaker 7: Rivest.
• 34:20
  Speaker 3: So thank you for that.
• 34:21
  Speaker 7: Yeah.
• 34:21
  Speaker 2: He's a professor at MIT, right?
• 34:23
  Speaker 5: He is.
• 34:24
  Speaker 2: And he's a pretty prominent computer science professor, right?
• 34:27
  Speaker 7: He is.
• 34:29
  Speaker 9: As you're about to hear, the conversation started to drift
• 34:32
  Speaker 9: from age verification to another big topic that's at issue
• 34:35
  Speaker 9: in this case, end-to-end encryption. That's the technology that means
• 34:40
  Speaker 9: in a DM, only the sender and receiver can view
• 34:43
  Speaker 9: their messages. Even the platform itself can't read them.
• 34:46
  Speaker 5: They're encrypted.
• 34:48
  Speaker 9: The testimony moved this way, as Meta's attorney brought up
• 34:51
  Speaker 9: that guy, Ron Revest.
• 34:52
  Speaker 2: He literally wrote the introduction to algorithm book that every
• 34:56
  Speaker 2: computer science student uses, right?
• 34:59
  Speaker 10: He wrote a popular textbook, for sure. You think he
• 35:03
  Speaker 10: probably knows what he's talking about?
• 35:04
  Speaker 4: Are you referring to the cryptographer, Ron Revest?
• 35:08
  Speaker 3: Is he an expert in child safety?
• 35:09
  Speaker 13: No.
• 35:10
  Speaker 3: So I think his opinions should be in the context
• 35:13
  Speaker 3: of his expertise.
• 35:15
  Speaker 9: Cryptographers like Ron Rivest create the technology that's used for
• 35:18
  Speaker 9: end-to-end encryption. End-to-end encryption is good if, say, you're messaging
• 35:23
  Speaker 9: your bank about your money or your doctor about your health.
• 35:26
  Speaker 9: But not good if predators are reaching out to children
• 35:28
  Speaker 9: on Facebook, for example, and asking them to send nude
• 35:31
  Speaker 9: photos of themselves or meet up in person in chats
• 35:35
  Speaker 9: that predators know no one else can see into, not
• 35:37
  Speaker 9: even law enforcement when they need to. As Levine put it,
• 35:41
  Speaker 9: encryption creates a black box of abuse. New Mexico is
• 35:45
  Speaker 9: asking Judge Biedscheid to ban end-to-end encryption on Meta's platforms
• 35:49
  Speaker 9: for kids in the state under 18. In the letter,
• 35:53
  Speaker 9: the security experts address proposals to limit end-to-end encryption on
• 35:56
  Speaker 9: certain apps, saying they won't solve the problem because the
• 35:59
  Speaker 9: technology is so widely available.
• 36:01
  Speaker 2: So the joint statement directly addressed what you're asking this
• 36:04
  Speaker 2: court to do, is that correct?
• 36:06
  Speaker 4: So, again, these are a set of scientists who are
• 36:10
  Speaker 4: concerned about privacy online. I am concerned about privacy online.
• 36:14
  Speaker 4: It's my experience that with a particular set of scientists
• 36:17
  Speaker 4: who care a lot about cryptography and privacy online, that
• 36:23
  Speaker 4: they have a myopic view. that children's privacy should be
• 36:27
  Speaker 4: flat out stomped over by the privacy of adults. Now,
• 36:31
  Speaker 4: I think adult privacy is also important, and that's why
• 36:34
  Speaker 4: my recommendation is not to end or ban cryptographically supported
• 36:38
  Speaker 4: end-to-end encryption for adults, which Mr. or Professor Rivest and
• 36:42
  Speaker 4: I agree upon. And I believe these scientists that you're
• 36:45
  Speaker 4: quoting in particular have a myopic view of how to
• 36:48
  Speaker 4: protect children. Ron Rivest is not an online safety expert.
• 36:51
  Speaker 4: Should have brought him here if you felt that he was.
• 36:53
  Speaker 7: Dr.
• 36:54
  Speaker 9: Levine argued that any private communication involving minors should not
• 36:58
  Speaker 9: be end-to-end encrypted, but adults can still have that level
• 37:01
  Speaker 9: of encryption, unless they're talking to a minor. But in
• 37:04
  Speaker 9: order to do that, of course, you need to know
• 37:06
  Speaker 9: who's a teen and who's an adult, which is how
• 37:09
  Speaker 9: this all ties back to age verification. After the testimony
• 37:19
  Speaker 9: and the trial wrapped, I talked to Dr. Levine about
• 37:22
  Speaker 9: his time on the stand and his experience with the
• 37:24
  Speaker 9: meta-legal team.
• 37:25
  Speaker 4: I mean, I think maybe their goal is to frustrate
• 37:28
  Speaker 4: me or, you know, my goal up there is not
• 37:31
  Speaker 4: to be frustrated. I sound pretty frustrated listening to the playback.
• 37:35
  Speaker 4: So I guess I didn't achieve that.
• 37:37
  Speaker 9: I wanted to talk to Levine because after hearing his testimony,
• 37:41
  Speaker 9: where he disagreed with hundreds of his peers... And having
• 37:44
  Speaker 9: seen other people who oppose age verification and limits to
• 37:47
  Speaker 9: end-to-end encryption myself, tech writers, the ACLU, even listeners of
• 37:52
  Speaker 9: this very podcast who've written us as much, I wondered,
• 37:55
  Speaker 9: does he really have no concerns about these proposals?
• 37:59
  Speaker 4: There's a group of scientists that are focused on just
• 38:01
  Speaker 4: encryption everywhere. You know, information should be free technologists who
• 38:06
  Speaker 4: just say, encrypt everything. Don't trust anyone. No one knows
• 38:10
  Speaker 4: better than the two people talking how to protect them.
• 38:13
  Speaker 4: This is so outdated now. The world has changed extraordinarily.
• 38:19
  Speaker 4: And the way you protect adults and, you know, provide
• 38:23
  Speaker 4: freedom to people around the world is just not how
• 38:26
  Speaker 4: you protect children, full stop. And protecting adults' freedom at
• 38:31
  Speaker 4: the expense of children is particularly without nuance. So I
• 38:37
  Speaker 4: just think this letter that was signed, it's typical of
• 38:41
  Speaker 4: my field. When we look back at what a terrible
• 38:44
  Speaker 4: science I'm in, computer science, and how we've.
• 38:46
  Speaker 3: Wronged the world, this will be one of the notes.
• 38:50
  Speaker 4: We're doing such a bad job in computer science.
• 38:53
  Speaker 9: Is this quite a heated debate in your fields, the
• 38:56
  Speaker 9: child safety at the expense of privacy debate?
• 39:02
  Speaker 4: I like, no, because I think I'm one of the
• 39:04
  Speaker 4: few people on the children should be safe side of it.
• 39:07
  Speaker 4: Like I have given talks at major conferences in my
• 39:10
  Speaker 4: field where I say, what are you doing? There shouldn't
• 39:14
  Speaker 4: be end-to-end encryption for children on these platforms. And I
• 39:18
  Speaker 4: introduced myself as a privacy researcher, and it may be
• 39:22
  Speaker 4: funny to hear or counterintuitive to hear that. Why would
• 39:25
  Speaker 4: a privacy researcher say what we need least is end-to-end encryption?
• 39:29
  Speaker 4: And I think that when people say that, that is
• 39:32
  Speaker 4: applying the adult safety lens to a problem that's specific
• 39:36
  Speaker 4: to children. There's no situation in real life other than
• 39:40
  Speaker 4: in the minds of people who want to get rich
• 39:42
  Speaker 4: where it's okay to algorithmically introduce children to strangers, but
• 39:46
  Speaker 4: and allow them to talk in secret. That's just not
• 39:49
  Speaker 4: safe parenting. And I don't see why this should be
• 39:53
  Speaker 4: true on social media. Sometimes the best way to protect
• 39:57
  Speaker 4: children is with solutions that are not appropriate for adults. Similarly,
• 40:01
  Speaker 4: we have cars that are built for adults. And the
• 40:04
  Speaker 4: way we protect children is to give them infant seats.
• 40:07
  Speaker 4: It's to give them booster seats until they're at such
• 40:09
  Speaker 4: an age that the machinery is appropriate for what they do.
• 40:20
  Speaker 9: There was one more moment in the courtroom that was
• 40:22
  Speaker 9: pretty memorable and made me wonder whether Meta was perhaps
• 40:25
  Speaker 9: talking out of both sides of their mouth when it
• 40:27
  Speaker 9: came to end-to-end encryption. It happened when that Meta VP
• 40:30
  Speaker 9: we heard from in the beginning, named Monica Bickert, took
• 40:33
  Speaker 9: the stand to testify against New Mexico's proposal that messages
• 40:37
  Speaker 9: remain encrypted end-to-end for adults while getting rid of end-to-end
• 40:41
  Speaker 9: encryption for teens.
• 40:42
  Speaker 11: If you were to try to carve out New Mexican teens...
• 40:50
  Speaker 11: that would fundamentally change the overall product experience. Anytime that
• 40:55
  Speaker 11: you add complexity into an encrypted system, you weaken the
• 40:59
  Speaker 11: entire system and you make it more vulnerable to attacks.
• 41:04
  Speaker 9: Her argument boiled down to having a feature that is
• 41:07
  Speaker 9: turned off for teens and turned on for adults, a
• 41:10
  Speaker 9: carve-out for some users, makes the whole system of private
• 41:13
  Speaker 9: messages less secure. Bickert is very familiar with the pros
• 41:17
  Speaker 9: and cons of secured versus unsecured messages, which a lawyer
• 41:21
  Speaker 9: for New Mexico asked her about on the stand.
• 41:24
  Speaker 10: To your credit, you understand there is a safety cost
• 41:28
  Speaker 10: to end-to-end encryption, right?
• 41:30
  Speaker 11: I think that trade-off is very real as a former prosecutor,
• 41:32
  Speaker 11: and it's one that I highlighted internally and continue to
• 41:37
  Speaker 11: highlight internally. I did not want us to roll out
• 41:40
  Speaker 11: end-to-end encryption on Messenger and Instagram Direct.
• 41:43
  Speaker 5: You might remember this.
• 41:44
  Speaker 9: It came up in our last episode about this case.
• 41:47
  Speaker 9: Bickert was a part of the decision-making team in 2019
• 41:50
  Speaker 9: when Meta was first weighing whether to offer end-to-end encryption
• 41:53
  Speaker 9: across Facebook and Instagram messages. Some employees were concerned that
• 41:57
  Speaker 9: encrypting Meta's messaging this way would block the company from
• 42:01
  Speaker 9: being able to see and report about 7.5 million instances
• 42:05
  Speaker 9: a year of child sex abuse materials. Mark Zuckerberg eventually
• 42:09
  Speaker 9: decided to go through with the encryption plan anyway. And
• 42:12
  Speaker 9: during that time, a Meta employee warned that the move
• 42:15
  Speaker 9: was wrong. In an internal chat, they wrote, quote, we
• 42:19
  Speaker 9: are about to do a bad thing as a company.
• 42:22
  Speaker 9: This is so irresponsible. That employee was Monica Bickert, the
• 42:28
  Speaker 9: same Monica Bickert who is now on the stand arguing
• 42:31
  Speaker 9: in favor of end-to-end encryption on Meta's apps, saying that
• 42:34
  Speaker 9: the company should be able to keep it for adults
• 42:36
  Speaker 9: and teens. Sometimes on the stand, Bickert even went, confusingly,
• 42:42
  Speaker 9: against her earlier stance that unencrypted messages protect kids.
• 42:46
  Speaker 11: My view is that teens are also entitled to secure
• 42:50
  Speaker 11: communications because when we think about end-to-end encryption, there is
• 42:54
  Speaker 11: a safety and security argument in favor of encryption as well.
• 43:00
  Speaker 9: In Monica Bickert, Meta has someone who was staunchly against
• 43:03
  Speaker 9: default end-to-end encrypted messages, saying it was a terrible idea
• 43:07
  Speaker 9: for protecting kids, now testifying for it. As a business
• 43:12
  Speaker 9: that's dependent on collecting our information for profit, it's easy
• 43:15
  Speaker 9: to imagine Meta wanting to do away with this level
• 43:18
  Speaker 9: of encryption wholesale. That way, they could read everyone's messages
• 43:22
  Speaker 9: and get more information from their users, data that is
• 43:25
  Speaker 9: extremely valuable to sell to advertisers, which is the main
• 43:29
  Speaker 9: way Meta makes its money. But saying that out loud,
• 43:33
  Speaker 9: that they want open access to all of our conversations,
• 43:36
  Speaker 9: even our direct messages with another person, that's not a
• 43:39
  Speaker 9: very winning argument. in the court of public opinion, or
• 43:42
  Speaker 9: in an actual courtroom. It occurred to me that Meta
• 43:46
  Speaker 9: could see an opportunity in this trial, a way to
• 43:49
  Speaker 9: get something that would be very valuable to the company,
• 43:52
  Speaker 9: access to all of its users' discussions, unencrypted messages, without
• 43:57
  Speaker 9: saying that it wants that. Maybe this was why Monica
• 44:00
  Speaker 9: Bickert's testimony in defense of end-to-end encrypted messages was so thin.
• 44:05
  Speaker 10: The safety argument for is.
• 44:08
  Speaker 11: You know, as any cybersecurity expert would say, when you
• 44:12
  Speaker 11: have end-to-end encryption, you have fewer vulnerabilities in the system.
• 44:17
  Speaker 9: Even more confusing, during this case, Meta in fact got
• 44:21
  Speaker 9: rid of fully private end-to-end encrypted messages, not just for kids,
• 44:25
  Speaker 9: but for everyone on Instagram. On Instagram, Meta can now
• 44:29
  Speaker 9: read all of our private messages. It's not what New
• 44:32
  Speaker 9: Mexico wanted or recommended. They just proposed getting rid of
• 44:36
  Speaker 9: it for teens in the state and keeping this level
• 44:38
  Speaker 9: of privacy in place for adults. But Metta did away
• 44:41
  Speaker 9: with all end-to-end encryption on Instagram anyway, before the judge
• 44:45
  Speaker 9: could make a recommendation either way. Monica Bickert didn't respond
• 44:49
  Speaker 9: to our request for an interview. On the stand, she
• 44:52
  Speaker 9: said they nixed end-to-end encryption because people on Instagram just
• 44:55
  Speaker 9: weren't using it. At the courthouse, Robin and I kept
• 44:59
  Speaker 9: trying to get the lawyers to talk to us. After
• 45:11
  Speaker 9: four days of this, during a recess, one of Mehta's
• 45:14
  Speaker 9: attorneys made a beeline for Robin and me in the courtroom.
• 45:17
  Speaker 9: For a second, I was excited. He'd told us no
• 45:20
  Speaker 9: comment the day before, but was he going to answer
• 45:23
  Speaker 9: our questions now?
• 45:25
  Speaker 10: Nope.
• 45:26
  Speaker 9: I'm sorry for not talking to you. I still won't
• 45:28
  Speaker 9: talk to you, he told us. He had something in
• 45:31
  Speaker 9: his hands. But would you like a cookie?
• 45:33
  Speaker 3: He asked.
• 45:35
  Speaker 9: And he presented us with a container of pecan cookies.
• 45:38
  Speaker 9: We politely declined, but told him to reach out to
• 45:40
  Speaker 9: us if he changed his mind. Later that day, I
• 45:44
  Speaker 9: got an email from a Meta spokesperson named Aaron Simpson.
• 45:47
  Speaker 9: Hey Zach, he wrote, one of my colleagues passed along
• 45:50
  Speaker 9: your contact.
• 45:52
  Speaker 7: Great, I thought.
• 45:53
  Speaker 9: Maybe we were finally getting somewhere. But he was just
• 45:56
  Speaker 9: sending me the company's boilerplate statement on the New Mexico trial. Quote,
• 46:00
  Speaker 9: The New Mexico Attorney General's focus on a single platform
• 46:04
  Speaker 9: is a misguided strategy that ignores the hundreds of other
• 46:07
  Speaker 9: apps teens use daily. Rather than providing comprehensive protections, the
• 46:11
  Speaker 9: state's proposed mandates infringe on parental rights and stifle free
• 46:14
  Speaker 9: expression for all New Mexicans. Regardless, we remain committed to
• 46:19
  Speaker 9: providing safe, age-appropriate experiences and have already launched many of
• 46:23
  Speaker 9: the protections the state seeks. Right now, Judge Biedscheid is
• 46:35
  Speaker 9: sequestered in his chambers in Santa Fe, thinking about everything
• 46:39
  Speaker 9: he heard in this trial, weighing the pros and cons
• 46:41
  Speaker 9: of each of the state's recommendations and META's rebuttals. Will
• 46:45
  Speaker 9: he mandate AIDS verification?
• 46:47
  Speaker 2: How?
• 46:48
  Speaker 9: Is end-to-end encryption on the chopping block? What features will
• 46:51
  Speaker 9: he say META has to implement or remove? What will
• 46:55
  Speaker 9: the enforcement of these mandates look like? These are questions
• 46:58
  Speaker 9: that no American judge has ever had to answer on
• 47:00
  Speaker 9: their own. But he does, and I do not envy him. Naturally,
• 47:06
  Speaker 9: it's taken him a long time to reach a verdict.
• 47:08
  Speaker 9: Testimony wrapped on May 22nd, and both sides submitted their
• 47:12
  Speaker 9: closing arguments on June 12th. The Attorney General's office told
• 47:15
  Speaker 9: us they thought the judge could decide by mid to
• 47:17
  Speaker 9: late July. It's now August, and still no verdict. I'm
• 47:22
  Speaker 9: not sure if there's anything to read into that delay
• 47:24
  Speaker 9: either way, but everyone's wondering.
• 47:26
  Speaker 5: What will he do?
• 47:27
  Speaker 7: I mean, I will foreshadow my ruling.
• 47:29
  Speaker 9: At one point during the trial, Judge Beechside went on
• 47:32
  Speaker 9: a bit of a rumination from the bench, giving us
• 47:35
  Speaker 9: a peek into his thinking.
• 47:36
  Speaker 8: I would love to sit up here and play the
• 47:39
  Speaker 8: omniscient jurist. who is just going to exude wisdom throughout
• 47:45
  Speaker 8: and knows everything. And I cannot honestly do that. I
• 47:49
  Speaker 8: think that these are very complicated arguments. I think that
• 47:54
  Speaker 8: beyond the arguments, I think it's a complicated system. And
• 47:58
  Speaker 8: you may have noted, and I realized, hopefully being a
• 48:01
  Speaker 8: little self-aware, that I was peppering.
• 48:06
  Speaker 7: Met his.
• 48:06
  Speaker 8: Witnesses, I think, more with questions than I certainly did
• 48:10
  Speaker 8: some of the plaintiff's witnesses. And I just want you
• 48:12
  Speaker 8: all to know that that is not a signal of.
• 48:17
  Speaker 8: You know, intending to be harsher towards one side's witnesses
• 48:21
  Speaker 8: than the other. But that is what is going through
• 48:24
  Speaker 8: my mind up here is this is my opportunity to
• 48:27
  Speaker 8: do what I think has been suggested on both sides
• 48:30
  Speaker 8: I should be doing, which is finding out from within
• 48:32
  Speaker 8: Meadow what's thought to be feasible and why not or why.
• 48:44
  Speaker 5: We'll be back with the judge's verdict once it happens.
• 48:54
  Speaker 1: That was our producer, Zach St.
• 48:55
  Speaker 6: Louis.
• 48:56
  Speaker 1: Please share this episode with a friend, rate and review
• 48:58
  Speaker 1: Question Everything wherever you listen to podcasts. Follow us on Instagram, questioneverything.podcast.
• 49:04
  Speaker 1: I know, I know it's Instagram, but we're putting reporting
• 49:07
  Speaker 1: that is critical of Instagram and meta on there. It's
• 49:09
  Speaker 1: been interesting to see how it goes. Please check us out.
• 49:12
  Speaker 1: Today's show was produced by Robin Simeon and Zach and
• 49:16
  Speaker 1: edited by Kevin Sullivan and me. Our team also includes
• 49:18
  Speaker 1: associate producer Kevin Shepard, contributing producer Sam Egan, contributing editors
• 49:22
  Speaker 1: Neil Drumming and Jen Kinney, and contributing reporter Sean Cole.
• 49:25
  Speaker 1: This episode was fact-checked by Annika Robbins and Marisa Robertson-Texter.
• 49:29
  Speaker 1: Mixing and sound design by Matt Tierney. Our music is
• 49:32
  Speaker 1: by Matt McGinley. Evie Kwong runs our social media. Thanks
• 49:35
  Speaker 1: to Emma Grillo and also to Eric Menel for contributing
• 49:37
  Speaker 1: to this episode, along with Sean Cole. And also thanks
• 49:40
  Speaker 1: to Courtroom View Network for the trial audio. Our partners
• 49:43
  Speaker 1: at KCRW include Arnie Seipel, Tejal Jumeirah, Natalie Hill, and
• 49:46
  Speaker 1: Jennifer Farrow. We'll see you next Thursday.