In January of 2012, Facebook, Inc. conducted an experiment with its users. Facebook, Inc. researchers altered the algorithm that creates users’ newsfeeds for a number of users do that some saw a significant increase in posts from friends that contained negative or positive vocabulary. The effect was to skew the perceived emotional environment of the users. The goal of the study was to test whether the posts of the effected users would reflect the change in their environments. In laymen’s terms, what impact do the emotions of our friends have on our own expressions? Is emotion contagious?
Fast-forward to the summer of 2014, when it was revealed to the general public that this study had taken place without anyone’s knowledge, and the internet erupted with displeasure. Talk of legal action quickly ensued.
Since the revelation of the study, the internet has produced a number of legal opinions from practitioners in the field on various blogs. James Grimmelmann, a Professor of Law at the University of Maryland, points out that whether a legal challenge to the study is successful, it raises serious issues of how business is conducted online.
The legal issue hinges on the legal and ethical validity of Facebook’s Terms of Service in which the term research is used exactly once. Does this qualify as informed consent? Were the subjects of the study actually harmed or their rights violated? These are questions for a court, and current law students are unlikely to be involved in really deciding them. However, as the future of the legal profession, current law students should be more aware of these issues than anyone other than the practitioners retained to actively engage any litigation.
Currently, Terms of Service are used with the force of contracts that virtually no one reads. Groups like the Electronic Frontier Foundation have been making this point for years. However, the average citizen of the Internet was only aware of the implications of this problem when the news of the Facebook study. Even with the comically minimal Terms relevant to the study, Facebook will likely avoid a major legal loss.
The real problem is that users all lose in the current system. Users sign over their rights consistently and often regret it later. The obvious alternative, reading all these agreements, is not any better. A survey of internet use by Lorrie Faith Cranor and Aleecia McDonald at Carnegie Mellon found that Americans would likely average 76 days to read all the privacy policies they agree to in the year 2008. This would cost the American economy $781 billion. That’s the economy of Switzerland in 2013. Houston, we have a problem.
We are the first generation of lawyers that will have largely grown up in the internet age, and are some of the first to have an intuitive grasp of how it actually operates and how people expect to use it. Today’s law students will be the lawyers that develop the legal and non-legal tools for effectively dealing with Information Age transactions. Make no mistake, some entrepreneurs like CommonTerms.com are currently working to improve the process by better defining terms, and providing consistent translations to legal phrases and making it easier for users to look into parts of the terms they don’t understand.
Unfortunately, the proposal by CommonTerms.com does not go very far to solving the issues Facebook raises. For one, the nature of the study and informed consent requires an even higher standard applied to a sample of Facebook’s users. To best meet the traditional norms of informed consent and using a manageable sample requires unique agreements. The value of CommonTerm.com’s example is that it shows one way that the technology that created the problem can be used to provide a solution.
A movement towards systems allowing and managing more sophisticated, adaptive User Agreements and Terms of Service will employ a lot of software engineers, but it also requires a number of attorneys as well. Someone must vet with a legal eye the deluge on amendments that might be added over the years for sufficiency and clarity. Also, like any contract process that is laudable, both parties should be represented in negotiating those terms. Facebook, Inc. would have its attorneys for ensuring its desires find expression in the terms and the public, likely through an agency like the FCC, would be represented by expert attorneys to protect their privacy and keep the terms clear.
The bottom-line is that Facebook’s actions highlight a systemic flaw in the way the majority of transactions are conducted online. There is an opportunity for tomorrow’s lawyers to help provide a systemic solution.
