In 2012 a research department at Facebook engineered and conducted a project in which it altered the wording of thousands of news feeds and then displayed them to approximately 600,000 viewers over the period of a week.

What does all this have to do with lawyering and the law? More than you might think, as we shall see

The question was whether the alterations in the texts would alter the probable emotional states of the viewers. I’m not quite sure how this was measured, but I think it must have been through the language employed by the involuntary viewer in his/her own posts.

The result was, roughly, that those who received “negativatized”  feeds tended to be more negative, while those who were exposed to more positive feeds were the reverse, also measured by current clips, i.e.,” current status updates.” It’s not clear to me how this could be measured.  It seems to me that one would have to compare and contrast usage over a short time interval after the reading of the feed with the pattern of usage over a longer period of time. Of course, two decisions would also have to be made and justified, namely, how long was each of the intervals to be. 

Then again, maybe I just don’t know what I’m talking about; after all,  professors of relevant topics from Cornell and Princeton were involved. Both of these are sound institutions, so I suppose it can be inferred that all faculty members selected by Facebook would be capable, competent, and wise. (Then again, we don’t know how much they were being paid.)

Other things also seem to be wrong with this study. Here’s one or two:

  • The researchers at Facebook, and their academic helpers, could not measure the impact of the change in language on users who were already severely depressed or suffering from deep and painful anxiety.  I would be surprised if they were not affected in the way the Facebook researcher (often called “scientists” in the papers–nonsense, of course) said they were.  
  • But the more significant question would be whether there was a greater negative effect on the emotional states of those people than on the average person, the average negative person, or the average shame-filled person, and so forth.  

I hypothesize that the reactions would be downwardly different, though I have no idea (i) by how much, (ii) for how long,  (iii) how deed, and (iv) causing what result, (v) or participating in causing what results.  I would not be surprised if the immediate pattern of consequences weren’t small looking, but–of course–that in and of itself tells us either little or nothing at all about (ii)-(v). 

One might be tempted to try and say that the differences can be found in behavior.  This contention would be false, of course, since what is being discussed are mental states not whether someone will like Coke or Pepsi.

There was some popular outrage that spring and early summer about the test. I learned it’s called an A/B type test and said by the defenders of the use of the test to be something done all the time in the biz-world. The leader of the Facebook pack has said that he now has “second thoughts” about having conducted the test; the academics from Cornell (roughly speaking) indicate that their role was OK since they did not need to have the proposal reviewed by any academic review board at the university, and the professor from Princeton (if I understand it) said she relied on the profs from Cornell. At the same time, the man from Facebook said that it had only a minuscule impact, and a short one, at that, though it obviously had some.

Now we come to the lawyer problem

It seems obvious to me that if it could be proved clearly that the test killed a person reading–granted, it would be 1 out of 600,000–Facebook might have liability.  In addition, it is reasonable to believe that where there is a huge “many blanket” study like this one, if there is one fatality, there are probably 2, though there certainly be no cascade. Physical injuries should be thought of the same way.  And mental impacts are likely to be larger again.  Of course, we are probably not looking at enormous numbers.

Still, isn’t this a kind of invasion of privacy? The test is surely a reach into the psyche and there is obviously no consent. Using Facebook is not itself consent. This is a fundamental assault on human psychic liberty, whether conceived in terms of the conscious, the unconscious, or both.  People will feel degraded if they find out what has been inflicted upon them and how they have been “invaded.” 

The trouble is that this sort of thing does not fit within the existing causes of action for invasion of privacy.  The lawyers who were asked to provide legal opinions on this matter–and God help Facebook if there were none–would have pointed this out. Still, something is wrong. The ethical rules governing lawyers usually indicate (or certainly imply) that lawyers may have a duty not only to advise their clients as to what the law literally controls but also what related moral principles and social norms provide.

What interests me are, then, four things:

First, did the Facebook lawyers follow their duties and explore the socio-moral principles involved?  

Second, if they did, what do those sections of their opinion letters look like.  (I am not saying, of course, that they must say what I would like them to have said.  Here the only point is that something serious is said.)

Third, how strong is my assertion that lawyers should or must advise their clients as to social norms, ethical principles, and/or moral rules?  Granted, is extremely unlikely that a lawyer would be disciplined for having failed to do this, assuming no real crime was involved. 

Fourth, how important is it that the events here discussed took place in (or originated in) the so-called cyber-space or, God-forgive our lack of virtue, in the so-called virtual world.  It’s very important, I think because it could take place nowhere but for the speeds and the possible-to-probable manipulations dwelling there.  Shouldn’t the fact that there is a semantic revolution going on (which I despise, incidentally) where for the purposes of language and concepts there is a new addition to our world, at least suggest that we need to rethink the concept of privacy.  Interestingly, this is built into many of the discussions of the new dimensions of cyber law.