Seem a little down recently? Is it because a SCOTUS ruling didn’t go your preferred way? Or maybe your team was knocked out of the World Cup? Or perhaps, as happened to many recently, did your Facebook news feed seemed just a little more negative than usual?

However, the last possibility isn’t just coincidental: Facebook really did make some users’ Facebook news feeds more positively or negatively oriented in order to collect data in a joint experiment with academics at Cornell and U.C. San Francisco. As a result, some users are criticizing the tech giant for a lack of given consent and potential privacy violations.

Facebook published the results of the experiment in March, detailing changes made to the Facebook news feeds of 689,003 users. According to the results, users who experienced more positive postings than average were slightly more likely to make a more positive post themselves, while users who experienced more negative posts were more likely to make a negative post themselves.

None of these users, though, actively consented to the experiment, which Facebook conducted behind the scenes. This type of big data collection may be common in the business world, but more stringent consent is often needed in academic studies. The academics working with Facebook did receive approval for the project from an international review board (IRB), but as Daniel J. Solove of George Washington University Law School points out, approval for the project was given based on the use of the data collected, not the method by which it would be collected.



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The main problem, writes Kashmir Hill of Forbes, cited by Solove, is that users don’t expect the social media giant to actively manipulate them in that way. “That’s a new level of experimentation, turning Facebook from a fishbowl into a petri dish, and it’s why people are flipping out about this,” Hill said.

Not all, though, believe Facebook stepped outside reasonable bounds. Michelle Meyer writes that Facebook conformed with IRB standards, which allow experimentation when the result is “minimal risk” outside of risks “ordinarily encountered in daily life.” Tal Yarkoni, meanwhile, argues that the news feed is a contrived environment anyway, and companies are “constantly conducting large controlled experiments on user behavior.”

The backlash provides a valuable point of emphasis for in-house counsel: Especially as big data continues to grow in the legal world, companies should be increasingly aware of how that data is collected. An increase in data can surely be useful, but it may not overcome the reputational risk that comes with the collection process.