Subway Surfing Death Sparks Legal Battle Against TikTok, Instagram in Nazario v. ByteDance
America ı By Jackie Allen
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What Is Subway Surfing?
Subway surfing, similar to train hopping, involves individuals climbing on top of moving subway trains—typically for thrills or to gain clout on social media. Since 2002, 16 people have died attempting the dangerous stunt in New York City alone. In response, the NYPD launched a drone surveillance program in 2023, which has led to the removal of over 200 subway surfers, according to GovTech.The Lawsuit: Tragedy Meets Tech
Norma Nazario, whose 15-year-old son Zackery died while subway surfing, is suing TikTok (owned by ByteDance), Instagram (owned by Meta), the MTA, and the NYC Transit Authority. The lawsuit alleges that Zackery was encouraged to attempt the stunt due to TikTok’s and Instagram’s algorithms, which allegedly flooded his feed with subway surfing content. According to the complaint, Zackery had become “addicted” to social media and was exposed to extreme and dangerous content without actively seeking it. https://usaherald.com/etan-patz-missing-milk-carton-children/Section 230 Under Fire
Typically, social platforms are shielded from liability under Section 230 of the Communications Decency Act. But Nazario’s suit claims this protection doesn’t apply because it targets not the content itself, but the platforms’ product design—specifically, their algorithms. “This case illustrates how the Section 230 precedent is fading,” writes law professor Eric Goldman on his Technology and Marketing Law Blog. “Courts keep chipping away at its edges to reach counterintuitive conclusions.” The court rejected the idea that TikTok and Instagram are “co-creators” of the videos simply because they provide tools for video editing. However, it did allow the lawsuit to proceed on claims related to algorithmic targeting. "The key is the company's active choice to inundate Zackery with content he did not seek," the court noted. “This type of content is popular with younger audiences... and keeps them on the platforms longer.”The Bigger Picture
While the court has not ruled on the merits of the case, it is permitting discovery to determine how Zackery was directed to subway surfing content. This could set precedent on how courts interpret algorithmic influence and user targeting.
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