The FTC’s Fight to Police Big Tech: FTC v. Facebook, Inc.

By: Iris Lin

Edited By: John Perales Jr. and Dheven Unni

On December 9, 2020, the Federal Trade Commission (FTC) sued Facebook for illegal monopolization. According to the FTC, Facebook has been engaging in anticompetitive conduct for years. Such conduct includes the 2012 acquisition of Instagram, the 2014 acquisition of WhatsApp, and the intimidation of competitors. The FTC claims that Facebook’s conduct stifles competition, harms consumers by leaving them with few choices for social networking, and deprives advertisers of the benefits gained from competition. The FTC is seeking a permanent injunction in federal court that could “require divestitures of assets, including Instagram and WhatsApp; prohibit Facebook from imposing anticompetitive conditions on software developers; and require Facebook to seek prior notice and approval for future mergers and acquisitions” [1]. This lawsuit is particularly notable because the FTC is changing its position on deals they approved at the time. When Facebook acquired Instagram and later WhatsApp, the FTC cleared both deals. This new lawsuit, however, sends “a warning to American business that no sale is ever final” [2].

Facebook was formed by Mark Zuckerberg and three other Harvard students in February 2004. It quickly became popular and rose from a small website exclusive to Harvard students to a worldwide platform in 2006. Throughout its lifetime, Facebook has faced multiple legal challenges. Six days after “The Facebook” went live, Zuckerberg and the founders of Facebook faced accusations by Cameron and Tyler Winklevoss and Divya Narendra that they had stolen the idea for the website. Next, Eduardo Saverin, chief financial officer and business manager for Facebook, filed a lawsuit against Facebook after being cut out by Zuckerberg in 2005 [3]. Facebook has also faced multiple privacy allegations, including the 2016 scandal where Facebook was accused of allowing fake Russian accounts to buy ads and spread fake news [4]. Most recently, in 2018, a Facebook hack affected 50 million users. This lawsuit, however, is monumental because by breaking up Facebook it could significantly reduce its power and dominance over the social networking industry.

In the beginning, Zuckerberg was seen as a superstar, a success story. He was a normal college student who created a platform that still defines the way we interact online. Due to these scandals and the increasing power of Facebook, however, this superstar reputation has started to shift more towards one of a villain. Sally Hubbard, director of enforcement strategy for the Open Markets Institute describes how “as companies get to become long-standing, durable monopolies, they start to treat people badly—they start to treat their consumers badly, they start to treat their employees badly, they start to treat other businesses badly. Because that’s what monopolies do” [5]. The FTC has exploited this perception in their lawsuit. It has portrayed Zuckerberg as a villain who seeks to eliminate all competitors and control every aspect of his company. 

Regardless of the outcome of the lawsuit, the negative public portrayal could be harmful to Facebook by impeding its relationship with current and future customers. The FTC has used dramatic language such as “the wrath of Mark” to portray Zuckerberg’s aggression in the technology sector. This language, coupled with damaging emails from Zuckerberg where he states the desire to eliminate competition, could persuade the public to loathe Zuckerberg and Facebook.

The case against Facebook is similar to a 2001 case, United States v. Microsoft Corporation, 253 F.3d 34, as both cases involved monopolies and were built on top officials’ explanations of their own conduct as opposed to just testimonies from workers. The government found memos from executives making predatory statements about eliminating competition, and Microsoft lost the case [6]. Microsoft was found to be liable for monopolization. Although relying on internal emails worked in the case of Microsoft, this strategy is often risky. At times judges have argued that antitrust law is interested in the economic effects of a business’s conduct, not the motives of its executives. Thus, emails from CEOs may work better at influencing the public than at making an economic argument in court. This “intent evidence,” however, can be key in convincing judges when other types of evidence may not be enough to make an antitrust case . In this particular case, Vanderbilt University Professor of Law, Rebecca Allensworth, explains how Zuckerberg’s emails are explicit in describing the desire to quash competition: “The court will find that relevant—and possibly damning” [7].

In response to the lawsuit, Facebook has focused on the legal aspects of the case. Facebook’s general counsel, Jennifer Newstead, issued a statement saying, “People and small businesses don’t choose to use Facebook’s free services and advertising because they have to, they use them because our apps and services deliver the most value”[8]. Facebook has been facing pushback from Washington for years now and has been already preparing for this major lawsuit. Facebook has integrated its apps on a technical level, possibly to frustrate a potential breakup. It has also increased its hiring of lawyers with antitrust litigation experience. Facebook has tried to set a narrative that it welcomes regulation but “that cracking down too hard could risk giving other countries like China a competitive edge in the fast-moving technology sector” [9].

Even if the FTC were to win the suit, the potential impact on consumers is unclear. The FTC complaint asks for Facebook to be forced to sell off WhatsApp and Instagram, but Facebook’s technical integration makes it challenging for new companies to easily adopt its separate apps [10]. Further, even if a breakup is feasible, it may not be ideal because it may not address the problem of competitive harm. If the FTC shows that the issue with the Instagram and WhatsApp deals was an impairment to consumer privacy, a breakup would be unlikely to protect this privacy.

As companies grow and aim to acquire more competitors, fears about one company becoming too powerful become significantly more relevant. The FTC is therefore working to prevent these companies, such as Facebook, from monopolizing their particular industries. The FTC claims that competition will be harmed if Facebook acquires or merges with other companies, which will negatively impact consumers and advertisers. Antitrust cases can be difficult to resolve, however, as the case must be evaluated on economic concerns and company intent. Regardless, the federal court’s will have a strong hand in shaping future consumer interaction with Facebook and will set the stage for a new era of technology centered antitrust cases.

NOTES:

1. “FTC Sues Facebook for Illegal Monopolization.” Federal Trade Commission, December 9, 2020, https://www.ftc.gov/news-events/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization

2. Brian Fung, “Facebook must be broken up, the US government says in a groundbreaking lawsuit.” CNN,10 December 2020, https://www.cnn.com/2020/12/09/tech/facebook-antitrust-lawsuit-ftc-attorney-generals/index.html 

3. Sabrina Barr, “When Did Facebook Start? The Story Behind A Company That Took Over The World.” The Independent, 23 August 2018, https://www.independent.co.uk/life-style/gadgets-and-tech/facebook-when-started-how-mark-zuckerberg-history-harvard-eduardo-saverin-a8505151.html 

4. Christopher McFadden, “A Brief History of Facebook, Its Major Milestones.” Interesting Engineering, 7 July 2020, https://interestingengineering.com/history-of-facebook

5. Craig Timberg and Drew Harwell, “Government’s antitrust case against Facebook seeks a villain in Mark Zuckerberg.” Washington Post, 10 December 2020, https://www.washingtonpost.com/technology/2020/12/10/facebook-lawsuits-zuckerberg-villain/

6. Rebecca Haw Allensworth,  “As regulators close in, Zuck’s long email trail poses an existential threat to Facebook.” Quartz, 23 December 2020, https://qz.com/1949679/why-the-ftcs-anti-facebook-lawsuit-stands-a-chance/ 

7. Allensworth, “As regulators close in.”

8. Fung, “Facebook must be broken up.”

9. Fung, “Facebook must be broken up.”

10. Allensworth, “As regulators close in.”

BIBLIOGRAPHY:

Allensworth, Rebecca Haw, “As regulators close in, Zuck’s long email trail poses an existential threat to Facebook.” Quartz. 23 December 2020. https://qz.com/1949679/why-the-ftcs-anti-facebook-lawsuit-stands-a-chance/ 

Barr, Sabrina. “When Did Facebook Start? The Story Behind A Company That Took Over The World.” The Independent. 23 August 2018. https://www.independent.co.uk/life-style/gadgets-and-tech/facebook-when-started-how-mark-zuckerberg-history-harvard-eduardo-saverin-a8505151.html 

Craig Timberg and Drew Harwell. “Government’s antitrust case against Facebook seeks a villain in Mark Zuckerberg.” Washington Post. 10 December 2020. https://www.washingtonpost.com/technology/2020/12/10/facebook-lawsuits-zuckerberg-villain/

“FTC Sues Facebook for Illegal Monopolization.” Federal Trade Commission. December 9, 2020. https://www.ftc.gov/news-events/press-releases/2020/12/ftc-sues-facebook-illegal-monopolization

Fung, Brian. “Facebook must be broken up, the US government says in a groundbreaking lawsuit.” CNN. 10 December 2020, https://www.cnn.com/2020/12/09/tech/facebook-antitrust-lawsuit-ftc-attorney-generals/index.html 

McFadden, Christopher. “A Brief History of Facebook, Its Major Milestones.” Interesting Engineering. 7 July 2020, https://interestingengineering.com/history-of-facebook

Equal Pay: Bridging the Gender Wage Gap

By: Reese Rosental Saporito

Edited By: Danielle Spitz and Maayan Abouzaglo

The gender wage gap has been prevalent for decades. In the United States, women are paid on average 82 cents for every dollar a man makes for doing the same job.[1] The progression towards equal pay has been slow, and if it continues at this rate, women will still be fighting against the wage gap until 2093.[2] In 1963, Congress passed the Equal Pay Act (EPA), which made it illegal for women to receive less pay than men when performing the same jobs requiring the same skills.[3] However, it is evident that this act has not performed the way it was intended, and these words must be backed by action. This act needs to be enforced by the government through legal protections and holding institutions accountable for upholding Equal Pay legislation.

The wage gap is a systemic gender issue that is rooted in the laws of the United States, and therefore must be reformed through policy. Though created to remedy this issue, the EPA has failed in practice. When the EPA was passed, its purpose was to put “an end to historical wage discrimination against women.”[4] While progress has been made from women earning 56% of men’s salaries in 1963 to 82% today, true equal pay has still not been achieved.[5] Another issue regarding the efficacy of the EPA is that it includes exclusions that are essentially loopholes for employers to pay women less than they do men without being punished by law.[6] An example of an exclusion is merit, for which people who produce “higher quality” work receive higher compensation that is highly subject to bias.[7] These loopholes allow for “justified” and legal gender-based discrimination in wages, therefore invalidating the EPA’s claim to end the historic wage gap for women.

In an attempt to combat this, The House of Representatives reintroduced the Paycheck Fairness Act (PFA) in 2019. This would not only increase the penalty for violations of equal pay, but it also forces corporations to disclose information revealing that any pay inequalities are based on factors other than sex.[8] The Harvard Business Review did a study that showed how the gender wage gap decreases when legislation requiring companies to disclose disparities in pay is present.[9] The issue with the EPA was the lack of resources to enforce the policies, making the legislation inadequate in mending the wage gap.[10]

Congress needs to ameliorate the EPA by getting rid of the exceptions that leave room for discrimination and implementing stronger enforcement of the rules laid out by the act. The EPA can be better enforced through the creation of a governmental branch responsible for continuously obtaining wage reports from companies all over the country, and cross-checking salaries to ensure women are receiving the same pay as men for the same work. The law must be used to challenge both wage discrimination and the inadequacy of the EPA, and legal protections must be in place to vindicate the rights of employees and hold corporations accountable for failing to recognize these rights.[11] To help in this accountability and to eliminate the aforementioned loopholes, the language of the act needs to be rectified to make it clear that wage differences among genders are truly based on factors other than sex, such as the presence of a master’s degree or strong recommendation letters.[12] In a world where money is the root of many problems, it is time that all people are paid equally for the work they complete, so that they can better their lives and the lives of those they take care of. Equal pay for women not only empowers young women to pursue their dreams in not traditionally female-dominated fields, while knowing that they will receive equal financial treatment. It will help push families out from below the poverty line and lead to an overall higher quality of living. Therefore, immediate action is utterly necessary to truly accomplish what the Equal Pay Act initially set out to achieve. 

NOTES:

1. AAUW:  The Simple Truth about the Pay Gap

2. AAUW

3. NCSL: The Current State of Equal Pay Laws

4. Why the Equal Pay Act and Laws Which Prohibit Salary Inquiries of Job Applicants Can Not Adequately Address Gender-Based Pay Inequity

5. EPA Not Adequate

6. EPA Not Adequate

7. EPA Not Adequate

8. CNBC: House passes new bill aimed at closing the gender pay gap

9. CNBC 

10. ACLU Paycheck Fairness Act

11. Rhetoric vs. Reality: Making Real Progress on Equal Pay

12. Rhetoric vs. Reality

BIBLIOGRAPHY:

Bleiweis, Jocelyn Frye and Robin. “Rhetoric vs. Reality: Making Real Progress on Equal Pay.” Center for American Progress. Accessed January 31, 2021. https://www.americanprogress.org/issues/women/reports/2019/03/26/467778/rhetoric-vs-reality-making-real-progress-equal-pay/. 

“Equal Pay for Equal Work: Pass the Paycheck Fairness Act.” American Civil Liberties Union, April 4, 2013. https://www.aclu.org/other/equal-pay-equal-work-pass-paycheck-fairness-act. 

Katherine McAnallen, Kathy Brangoccio. The Current State of Equal Pay Laws. Accessed January 31, 2021. https://www.ncsl.org/research/labor-and-employment/the-current-state-of-equal-pay-laws.aspx. 

Kerenzulli. “House Passes New Bill Aimed at Closing the Gender Pay Gap.” CNBC. CNBC, April 21, 2020. https://www.cnbc.com/2019/03/28/house-passes-new-bill-aimed-at-closing-the-gender-pay-gap.html. 

Mello, Jeffrey A. “Why the Equal Pay Act and Laws Which Prohibit Salary Inquiries of Job Applicants Can Not Adequately Address Gender-Based Pay Inequity - Jeffrey A. Mello, 2019.” SAGE Journals. Accessed January 31, 2021. https://journals.sagepub.com/doi/10.1177/2158244019869106. 

“The Simple Truth about the Pay Gap.” AAUW, December 8, 2020. https://www.aauw.org/resources/research/simple-truth/. 

Chevron Deference in a Conservative Court

By: Patrick Ales

Edited By: Maayan Abouzaglo and Arianna Staton

The doctrine of Chevron Deference, may not be inherently political, but as with a large portion of issues on the Supreme Court, the divides are drawn across party lines. The appointment of Amy Coney Barrett to the Supreme Court has given conservatives a 6-3 majority that has not been seen since the 1930s. Although 14 of the 18 most recent appointments have been made by Republican presidents, the court has almost always maintained a 5-4 split with a conservative swing vote, the last of which was Anthony Kenndedy before his retirement. [1] This is coming to an end, as the Trump administration filled three vacancies in the Court and established a new overwhelming conservative majority, leaving uncertain the future of reproductive rights and healthcare. A less talked about consequence of a conservative majority is the future of Chevron Deference, primarily used as a means to reign in the power of the courts to rule on legislative issues, which may see an impending reduction in its scope. The doctrine stems from Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984), in which the NRDC claimed that the Environmental Protection Agency (EPA) had adopted an incorrect interpretation of a 1977 amendment to the Clean Air Act of 1963. [2] This interpretation allowed corporations to evade a review process for air pollution in their plants, but was rejected in a lower court. The Supreme Court would eventually hear Chevron’s appeal and rule that it was not in the Court’s scope to rule on the interpretation of an executive agency, and that the interpretation was formed from a reasonable construction of the statute in question. Holding that the agency in question was tasked with the construction of an answer to an ambiguous legislative statute, the decision set forth a precedent in which courts should defer to the answer of an agency. 

Among the most outspoken of the recent Trump appointees to the Court is Justice Neil Gorsuch. He calls into question the efficiency of the doctrine in a time where the interpretations of executive agencies change rather often, asking whether it is reasonable to ask ordinary citizens “to guess again whether the agency’s initial interpretation of the law will be declared “reasonable”; and to guess again whether a later and opposing agency interpretation will also be held reasonable?” [3] His willingness to publicly speak out against the doctrine in a case that did not expressly warrant consideration of Chevron highlights the sentiment of the conservative majority. Gorsuch takes a similar approach to the late Justice Scalia in his assessment of the two-step Chevron process, in which both justices found it increasingly difficult to find the ambiguous prerequisite applicable to most statutes. [4] 

Gorsuch and the conservative wing took a concrete step toward limiting the scope of the ambiguity clause in Wisconsin Central Ltd. v. United States 200 U.S. 321 (2018). [5] Justice Gorsuch wrote the majority and concluded that employee stock options were not considered “money remunerations” and were thus not subject to the specific act. [6] Justice Breyer of the liberal wing of the Court authored the dissent and argued that there was sufficient ambiguity as to whether stock options were taxable, which would have led him to defer to the Treasury’s reasonable interpretation of the law. [7] The case was split across party lines as Justice Kennedy often agreed with the conservatives in his interpretation of Chevron. The limitations being imposed upon the doctrine also go as far as the reimplementation of the “major issues” question, in which deference is invalidated because the problem at hand is of grave political or economic consequence and should be adjudicated to be more than “reasonable.” In King v. Burwell [8], the Court invoked the major issue doctrine before delving into the qualifications of the case with regards to Chevron. Rather, they saw the issue of the Affordable Care Act to be too important to leave to disputed agency interpretation [9]. While the decision of the case itself has little to do with deference, the implementation of the major issues doctrine opened the door for further limitations to the current scope of Chevron. 

In the same vein, Justice Kavanaugh has expressed hesitancy in allowing for de novo review by the Supreme Court on these “major” issues. Instead, he argues in his dissent of rehearing United States Telecom Association v. FCC that issues of such profound importance should be left to Congress and not decided by the Court or agency in the case of ambiguity. [10] Kavanaugh’s implementation of the major rules doctrine adheres strongly to nondelegation, in which Congress cannot delegate its legislative powers to other branches of government. His rejection of judicial review of the statutes, which would naturally be covered under Chevron, seeks to preserve the legislative authority of Congress [11] and puts greater trust in the lawmaking process, in spite of what his fellow justice Amy Coney Barrett calls the “often-chaotic legislative process.” [12] Barrett has not dealt with Chevron in her time as a judge due to jurisdictional differences with judges like Kavanaugh, whose court saw many more administrative law questions. However, Justice Barrett has often compared her judicial philosophy to the late Justice Scalia, who was not as apprehensive of Chevron as some of his colleagues but still found issues in the loose barrier to find cause for deference to be used. This same reservation has been emulated by Justice Gorsuch. This is not to say that Scalia’s influence on the Court is pro-Chevron, but a strict adherence to his textualism may lead Justice Barrett to be less hostile toward the principle of deference. With her documented distrust of the outcomes of the legislative process to serve a targeted purpose [13], Justice Barrett may be the least willing conservative to revisit the scope of Chevron. 

The trend supported by the first two Trump appointees to the Court is that a more cemented conservative majority would be hostile towards Chevron and in favor of expanding the effects of the nondelegation doctrine. While it remains to be seen what the impact of Justice Barrett’s appointment will be on specific cases of administrative law, it is hard to envision a case where she disagrees with the conservative wing of the court. Barrett is by no means the new ideological center of the court, which probably still remains in the hands of Chief Justice Roberts or even Justice Kavanaugh [14], but administrative law could become one of Barrett’s more moderate points of reference. Mostly due to her strict adherence to originalism, like Justice Scalia, there is uncertainty about how she will apply Chevron, especially since Justice Barrett has not adjudicated on a deference case in her time on the bench. [15] Whether she chooses to emulate Justice Kavanaugh and seek to broaden the scope of the non delegation doctrine through Chevron, or take the route of Justices Gorsuch and Thomas in a more aggressive form of textualism regarding Chevron’s first step [16], Justice Barrett presents a new barrier for proponents of the doctrine and a backbone for those that wish to see its scope reigned in.

NOTES:

1.  Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” 

2.  Chevron U.S.A., Inc v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984)

3.  Yeatman, William. “Supreme Court Proves Me Wrong on Judicial Deference.”

4.  Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.”

5.  Wisconsin Central Ltd. v. United States 200 U.S. 321 (2018)

6.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

7. Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

8.  King v. Burwell 576 U.S. 988 (2015)

9.  Sebring, Michael. “The Major Rules Doctrine.” 

10.  Sebring, Michael. “The Major Rules Doctrine.” 

11. Barnett, Kent, Christina L Boyd, and Christopher J Walker. “Judge Kavanaugh, Chevron Deference, and the Supreme Court.”

12.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

13.  Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.”

14.  Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” 

15.  Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.” 

16. U.S. Congressional Research Service, Valerie Brannon, and Jared Cole, Chevron Deference: A Primer § (22, 23). 

BIBLIOGRAPHY:

Barnett, Kent, Christina L Boyd, and Christopher J Walker. “Judge Kavanaugh, Chevron Deference, and the Supreme Court.” The Regulatory Review, September 5, 2018. https://www.theregreview.org/2018/09/03/barnett-boyd-walker-kavanaugh-chevron-deference-supreme-court/. 

Bernick, Evan. “Judge Amy Coney Barrett on Statutory Interpretation: Textualism, Precedent, Judicial Restraint, and the Future of Chevron.” Yale Journal on Regulation, July 3, 2018. 

Biskupic, Joan. “Analysis: The Supreme Court Hasn't Been This Conservative since the 1930s.” CNN. Cable News Network, September 26, 2020. https://www.cnn.com/2020/09/26/politics/supreme-court-conservative/index.html 

Saksa, Jim. “Barrett, with Scalia as Model, May Be a Moderate on Regulation.” Roll Call. Accessed December 29, 2020. https://www.rollcall.com/2020/10/08/barrett-with-scalia-as-model-may-be-a-moderate-on-regulation/. 

Sebring, Michael. “The Major Rules Doctrine.” Georgetown Law. Accessed December 29, 2020. https://www.law.georgetown.edu/public-policy-journal/blog/the-major-rules-doctrine/. 

U.S. Congressional Research Service, Valerie Brannon, and Jared Cole, Chevron Deference: A Primer § (2019). 

Yeatman, William. “Supreme Court Proves Me Wrong on Judicial Deference.” Cato Institute, March 2, 2020. https://www.cato.org/blog/supreme-court-proves-me-wrong-judicial-deference. 

Balancing Privacy and Big Data Analytics

By: Claire Lu

Edited By: Dheven Unni and Joni Rosenberg

The production, consumption, and distribution of data generate tremendous social and economic value. As data analytics and digital networks advance and expand, the information accessible to individuals, businesses, and other entities has multiplied. Concurrently, the amount of data generated each day has exceeded the capabilities of traditional data collection methods and thereby engendered the growth of big data analytics. [1]

Big data refers to extremely large data sets rapidly collected from a variety of sources. Following this definition, big data is characterized by the three Vs: volume, velocity, and variety.[ 2]  With the growth of big data, analysts have gained the ability to glean valuable information from large and confusing datasets. This has meaningful applications in healthcare and education, and has also led to several major advances in scientific research. [3] For example, Kaiser Permanente was able to use big data to trace 27,000 cardiac arrests to the drug Vioxx, leading to the drug’s removal from the market. Without big data, researchers may not have been able to connect the drug with its side effects. [4]

While big data undoubtedly brings significant benefits to society, the rise of big data analytics creates new, unprecedented issues. For instance, big data raises questions about the ownership of data and can be used to exclude marginalized groups from opportunities by only advertising benefits such as credit card loans to certain groups. [5] The most prominent issue, however, is preserving privacy despite the pervasiveness of big data. Personal information is scrutinized, and the amount of detail that big data can extrapolate often feels invasive. To compound this issue, the current process of data collection is remarkably opaque, and the lack of a digitally-educated public makes it difficult for consumers to weigh in on questions of individual privacy. [6] While the anonymization of data has been the paradigm in research, it is always possible that individuals can be re-identified from anonymized data. [7] As a result, it is important that the law devises comprehensive measures that protect individuals and govern our data-driven society without stifling it.

Current national privacy law is too limited in scope. The only federal statutes concerning privacy are the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA), which protect the privacy of students and medical patients respectively. Both standards were created prior to the big data boom and only regulate certain types of data. [8] In addition, the White House’s attempt to address privacy in the proposed Privacy Bill of Rights was criticized for its lack of new legislative changes. [9] Thus, it is clear that existing privacy laws must be reexamined. While many call for a radical European Union-style overhaul of privacy laws—an approach that focuses on reducing data collection and regulating its applications—there comes a need to balance the priorities of the individual and the collective. We should remain aware of big  data’s potential while recognizing its ethical and practical shortcomings.

It is unproductive and unrealistic for individuals to opt-out of data collection methods in the twenty-first century. The public shares a stake in analyzing pandemics, identifying effective medicine, improving the policing system, and several other issues that big data can help address. [10, 11] Thus, society benefits when individuals consent to data collection. At the same time, individual privacy concerns are legitimate and cannot be dismissed. Privacy and progress, however, should not be mutually exclusive. Policymakers should create a model that weighs and evaluates the legitimacy of data processing while better regulating big data collection. Given that the uses of big data are diverse and competing interests are rampant, simple solutions will often fall short. [12] There are still several viable approaches, however, that could allow big data to operate more ethically.

Data collection methods need to provide individuals with more agency and choice. Most third-party data collection is virtually invisible in the status quo, and consumers are seldom aware that they are sharing their data. When present, privacy policies posted on websites give individuals only the illusion of security, as they rarely advertise the extent of data collection [13]. More emphasis should be placed on informed consent. The current legal notions of informed consent involve four components: disclosure, competency, decision capacity, and documentation of consent. These ideas are most commonly applied in healthcare, where healthcare professionals take careful measures to ensure that their patients are making informed decisions about medical procedures. [14] A similar approach can be adapted and applied to data collection, as consumers should be able to have some degree of control over the collection and distribution of their data. Algorithmic transparency and clear policies communicated to a digitally-educated public can help consumers and collectors reach a mutual understanding. [15]

In addition, unlimited storage has caused a disturbing increase in the length of data retention. While rights of erasure are codified in the EU, the US lacks methods to enforce privacy rights. This can be attributed to their different approaches to privacy laws—in the US, the right to privacy is largely interpreted as “the right to be left alone” as established in A Treatise on Law of Torts or, in other words, the right to privacy dictates that the government should not invade the privacy of its citizens, but it is not obligated to intervene and keep companies accountable for invasions of privacy. In contrast, the EU has taken more proactive steps to secure the privacy of all its citizens. [16] Both are viable perspectives, but as the threat to privacy has become more immediate, the US should consider implementing provisions that limit unnecessary accumulation of personal data.

The ubiquity of big data presents both opportunities and challenges. While it may be tempting to glorify the advances made by big data, equal attention should be paid to its drawbacks. The law must develop more proactively to the changing landscape of technology by creating laws that hold companies accountable for invasions of privacy. A more aggressive approach to privacy law is necessary to adequately protect consumers and address the complex threat to privacy posed by big data.

NOTES:

1. “A Deluge of Data Is Giving Rise to a New Economy,” The Economist (The Economist Newspaper), accessed January 4, 2021, https://www.economist.com/special-report/2020/02/20/a-deluge-of-data-is-giving-rise-to-a-new-economy.

2. “Big Data Analytics,” IBM, accessed January 3, 2021, https://www.ibm.com/analytics/hadoop/big-data-analytics.

3.  Ibid.

4. Gardiner Harris, Barry Meier, and Andrew Pollack, “Despite Warnings, Drug Giant Took Long Path to Vioxx Recall,” The New York Times (The New York Times, November 14, 2004), https://www.nytimes.com/2004/11/14/business/despite-warnings-drug-giant-took-long-path-to-vioxx-recall.html.

5. Jonas Lerman, “Big Data and Its Exclusions,” SSRN Electronic Journal, September 3, 2013, https://doi.org/10.2139/ssrn.2293765.

6. Charith Perera et al., “Big Data Privacy in the Internet of Things Era,” IT Professional 17, no. 3 (2015): pp. 32-39, https://doi.org/10.1109/mitp.2015.34.

7. Luc Rocher, Julien M. Hendrickx, and Yves-Alexandre De Montjoye, “Estimating the Success of Re-Identifications in Incomplete Datasets Using Generative Models,” Nature Communications 10, no. 1 (2019), https://doi.org/10.1038/s41467-019-10933-3.

8. Cayce Myers, “Big Data, Privacy, and the Law: How Legal Regulations May Affect PR Research,” Institute for Public Relations, December 3, 2020, https://instituteforpr.org/big-data-privacy-and-the-law-how-legal-regulations-may-affect-pr-research/.

9. “What Is the Consumer Privacy Bill of Rights and How Has It Evolved?,” Comparitech, November 27, 2018, https://www.comparitech.com/blog/vpn-privacy/consumer-privacy-bill-of-rights/.

10. Jia, Qiong, Yue Guo, Guanlin Wang, and Stuart J. Barnes. “Big Data Analytics in the Fight against Major Public Health Incidents (Including COVID-19): A Conceptual Framework.” International Journal of Environmental Research and Public Health 17, no. 17 (2020): 6161. https://doi.org/10.3390/ijerph17176161. 

11. IBM, “Big Data Analytics.”

12. Pompeu Casanovas et al., “Regulation of Big Data: Perspectives on Strategy, Policy, Law and Privacy,” SSRN Electronic Journal, 2017, https://doi.org/10.2139/ssrn.2989689.

13. Ibid.

14. “Informed Consent,” Legal Information Institute (Legal Information Institute), accessed March 21, 2021, https://www.law.cornell.edu/wex/informed_consent#.

15. Claudia E. Haupt, Jack M. Balkin, and Anita L. Allen, “Protecting One's Own Privacy in a Big Data Economy,” Harvard Law Review, December 9, 2016, https://harvardlawreview.org/2016/12/protecting-ones-own-privacy-in-a-big-data-economy/.

16. Pompeu Casanovas et al., “Regulation of Big Data.”

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