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It May Seem Frivolous to a Business Lawyer in San Antonio, But it’s Illegal Says Maryland Legal Prof

A bit of nostalgia for that #TBT thing going around Facebook. Remember when Facebook was only for college students? Remember when you got excited when your university was cool enough to get added to the list to be included in the network—or better yet—if you attended Harvard or a college in Boston or an Ivy League school and no one else had even heard of it? Or, if you really want a #ThrowBackThursday idea: before social media? Dark and distant times, it seems, but only around decade ago, and well before Facebook started getting into the kind of legal trouble that they are arousing now. Two law professors in Maryland are convinced that Facebook’s recent mood manipulation experiment violated state law, even if that would seem silly to a business lawyer in San Antonio.

The mood manipulation experiment conducted earlier this year consisted of Facebook’s manipulating users’ news feeds to access the effects on their emotions. And again, while a business lawyer in San Antonio knows that Facebook would be relatively safe in somewhere like Texas (where corporations enjoy limited regulation) it’s not the case in more restrictive states like Maryland, where University of Maryland law professors James Grimmelmann and Leslie Meltzer Henry are arguing that Facebook’s actions broke the law—specifically House Bill 917. Because, while federal statutes specify that federally funded statutes stipulate that research on humans include informed consent and be subject to approval from an Institutional Review Board, Maryland has gone an applied those requirements to any research done on humans in the state.

Well, of course Facebook isn’t having it. Defending itself and its experiment in a statement that argues its exemption from HB 917 on the grounds that it was employing product testing and not conducting research, Facebook is hoping to avoid any formal charges from the state. Other lawyers in other states seem to agree with Facebook. A law professor at the Illinois Institute of Technology doubts whether what Facebook did constituted human research, and a business lawyer in San Antonio like Douglas Shumway would know that Texas research requirements might be highly unethical, but finding legal grounds for prosecution could be difficult.

Still, Grimmelmann and Henry aren’t giving way. They are insisting that because Facebook published the results of its experiment in a peer reviewed scientific journal (the Proceedings of the National Academy of Sciences), it “clearly intended for their findings to be taken generally,” a key phrase in interpreting the Maryland law that would define the social media company’s actions as illegal.

Regardless of whether the state brings a case against Facebook, the whole scenario raises interesting questions for the future of metadata information and its use – something many, many people, from a business lawyer in San Antonio to a technology law professor in Illinois will be interested in seeing unfold. Every moment we are on the internet, even right now, reading these words, information about our clicks, scrolls, shares and saves is being gathered for some future use, and legally, it may matter to what use that information is put.

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