Was Facebook & OKCupid’s research treating users like guinea pigs illegal?

A Maryland law professor says Facebook and OKCupid did not get 'informed consent' from users before conducting psychological experiments, making the research both unethical and illegal.

Online guinea pig
Credit: supercuter

Let’s face it, very few people read all the terms of service before selecting “I accept” for a website. At best, accepting terms and conditions are “nothing more than the ‘charade of consent’.” But even then, agreeing to online terms of service should not be the same thing as agreeing to be guinea pigs for research experiments. In fact, “research involving human subjects” requires the human guinea pig to a sign an informed consent as well as first gaining approval from an institutional review board (IRB). Because neither Facebook nor OKCupid did both before conducting psychological research, that makes their actions not only immoral and mood-altering, but also illegal under Maryland law, according to University of Maryland Law Professor James Grimmelmann.

Guinea pig Alexander Acker

Grimmelmann hammered on Facebook and OKCupid; Facebook secretly manipulated 689,003 users’ News Feeds to research if negative news depressed people enough to post more depressing news and if positive news spurred more people to post happy news. OKCupid then admitted to lying to users by making bad matches and claiming they were instead great matchmaking choices.

“What Facebook and OkCupid did wasn’t just unethical. It was illegal,” Grimmelmann said. “A common assumption is that even if research laws ought to apply to private companies, they don’t. But that assumption is false. Facebook and OkCupid are bound by research laws, and those research laws quite clearly prohibit what they did.”

Because Facebook presented its findings as science, but did not have explicit permission from users that were involved in the research, Grimmelmann believes it violated the Common Rule law and therefore Maryland House Bill 917. It doesn’t matter that Facebook is not physically located in Maryland; it only matters that residents of Maryland were unknowingly part of the experiment. The same goes for OKCupid.

Grimmelmann sent letters to Facebook (pdf) and OKCupid (pdf) asking for copies of IRB meeting minutes as required by Maryland law. OKCupid ignored the letter. Facebook replied, calling the experiment research, but – in Grimmelmann’s words – claiming that “Facebook is above the law that applies to everyone else.”

Unfortunately for Facebook, the argument that Maryland’s research ethics law wasn’t “designed to address” Facebook’s research is laughably wrong. House Bill 917 couldn’t be clearer. It says, “A person may not conduct research using a human subject unless the person conducts the research in accordance with the federal regulations on the protection of human subjects.” There you have it. No qualifications, no exception if your name is Mark Zuckerberg.

Then there’s OKCupid, which chose not to respond to the request for meeting minutes at all. Instead, Grimmelmann quotes a TLDR podcast interview during which OKCupid CEO Christian Rudder claimed “if we hadn’t had run that experiment, we basically are doing something terrible to all the users.”

When an “ethically ruddlerless” Rudder announced the OKCupid matchmaking experiment, he claimed everyone conducts research without seeking anyone’s permission. “But guess what, everybody: if you use the Internet, you’re the subject of hundreds of experiments at any given time, on every site,” Rudder. “That’s how websites work.”

Rudder told TLDR that OKCupid doesn’t seek consent because people would then “act differently” and the research results would be different.

Yet the fact that OKCupid emailed users after the fact with their real match compatibility results suggests to Grimmelmann that the company knew it crossed an ethical line. “That’s not something you’d do if you really thought the initial lie was harmless or that users wouldn’t care. Notice after the fact is no substitute for informed consent up front — but it concedes the point that the experiment was something ethically different from the day-to-day operations of the site. You don’t write to users to tell them you tested a new font.”

Technically Media was on hand during the release of Rudder’s new book, Dataclysm: Who We Are (When We Think No One's Looking); a book made possible due to Rudder’s “unfettered access” to OKCupid’s big data. During the event, Rudder claimed researchers don’t need to conduct experiments to explore many questions; instead, they can simply study the data generated from social sites. Technically Media added:

There’s a lot of talk about sites knowing everything about you, but Rudder pointed out that there’s a huge gap in knowledge for all dating sites, “You just don’t know what people do when they leave the keyboard,” he said. However, he also pointed out that Facebook claims to be able to tell whether your parents divorced when you were young based on your liking activity, which could mean that dating sites will be able to find ways to make much more educated guesses about what you do beyond the keyboard, soon.

Sure, with more experiments during which you may be the guinea pig without your consent. But Grimmelmann wants to make sure users are not experimented upon without first gaining their consent.

He sent a letter to Maryland Attorney General Doug Gansler (pdf) stating that “both companies revealed that they performed psychological experiments on their users;” and “both companies have scoffed at the idea that their research required them to obtain the consent of their users or approval from an ethical review board, but that is exactly what Maryland law requires.”

He asked the Attorney General to “seek an injunction requiring Facebook and OKCupid to refrain from human subject research on Maryland residents until they obtain full Common Rule informed consent from users and approval of each research protocol from a Common Rule-compliant IRB.”

Stanford University won’t use Google funds for privacy research

Lastly, Grimmelmann also chimed in on Stanford University’s decision not to use Google funding for privacy research. "It’s such an etiquette breach; it tells you something is really sensitive here." ProPublica dug up the document while researching a different lawsuit, but it raised questions such as if data from other research leads toward a privacy-related topic, will it be ignored? Stanford’s policy not to use Google funds for privacy research is “fairly unusual and kind of glaring to have that kind of a condition," Grimmelmann said.

Guinea pigs for online research FunnyJunk

Great, hopefully that won’t lead to more online research where we are guinea pigs without privacy rights, to be followed by “Your privacy is very important to us,” insert company name here.

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