REGULATING SOCIAL NETWORKING SITES: FACEBOOK, ONLINE BEHAVIORAL ADVERTISING, DATA PROTECTION LAWS AND POWER.

Author:Vranaki, Asma A.I.
 
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TABLE OF CONTENTS I. INTRODUCTION 170 II.CYBERSPACE REGULATION: FROM THE "NEW FRONTIER" TO REGULATION TO DYNAMIC REGULATORY SPACES TO POWER EFFECTS 174 III.POWER: OF PRODUCTIVITY, RESISTANCE AND ASSOCIATIONS 178 IV.EXPLORING FACEBOOK ADVERTISEMENTS 187 V.FACEBOOK ADVERTISEMENTS AS "ACTOR- WORLDS" 194 VI.RITUALS OF CONSENT 201 VII.SEPARATING THE CONNECTED AND CONNECTING THE SEPARATE: COMMODIFYING FACEBOOK USERS AS CONSUMERS 207 VIII.CONCLUSION 210 I. INTRODUCTION

Social networking sites ("SNS") have transformed modern lives in more ways than one. We now have instant, global and seamless connectivity with one another for various purposes, such as dating, (1) improving our professional profiles (2) and maintaining friendships with our existing social networks. (3) SNS are web-based social communities of users with similar interests or affiliations who interact with one another by sharing photos or images, exchanging text or instant messages, playing games and so on. (4) As SNS have proliferated over the years, (5) they have also raised complex legal, regulatory and policy issues, such as data protection and privacy. (6) For example, the data handling practices and policies of Facebook - one of the most popular global SNS - have attracted several complaints over the years. (7) In recent times, the American privacy pressure group, the Electronic Privacy Information Centre, has filed a complaint with the Federal Trade Commission to ask the watchdog to investigate Facebook's use of Facebook customer data in its controversial "emotion contagion" experiment. (8) Facebook's data handling practices and policies have also been scrutinized by a number of data privacy regulators including the Data Protection Commissioner of Ireland. (9) At policy level, governments across the globe are devising strategies and policies to support and promote the growth of the digital economy by, for example, reducing the legal and regulatory obstacles which prevent digital platforms, such as SNS, from prospering. (10)

Debates about regulating online environments are dominated by the Lessigian idea of regulation through law, norms, market and "code". (11) From this vantage point, questions about cyberspace regulation narrowly focus on which regulatory model achieves what function. Recently, some scholars have argued against the adoption of a "tools-only" perspective when analyzing cyberspace regulation. (12) Rather, they contend that we should also pay attention to how multiple actors interact with each other and such tools in context. (13) However, these perspectives are still tied to regulatory concepts, such as pre-determined regulatory modalities and a top-down approach to regulation, which restrict analysis. (14) Wider matters, such as the potentially multi-directional power effects generated in online platforms or resistance to regulation, are not examined in detail. As analyzed later, these are central matters to take into account when regulating online environments.

Consequently, in this paper, I argue that we need to move away from the dominant cyber-regulatory lens to a conceptual lens of power that combines specific ideas about power from Actor-Network Theory and Michel Foucault ("ANT-Foucauldian Power Lens") in order to (a) understand more fully the complexity, dynamism and precarity of the regulatory space in online environments when legal rights are at stake and (b) understand the complex and multiple power effects (including regulatory effects) generated when a legal right is protected or violated in digital platforms. Power effect means any enabling, constraining and productive force which is generated when heterogeneous technological (for example, algorithms), social (for example, Facebook users' resistance practices) and legal actants (for example, legal reasoning) are associated in specific ways, for some time, to extract compliance from other actants that can resist such attempts. (15) "Actants" means ". . .something that acts or to which activity is granted by others" and encompass human and non-human actors. (16)

This central argument of this article is not only about heterogeneity but also about locality. It should not be assumed that information and communications flows are similar in all online environments without empirical enquiry. Despite the fact that digital environments, such as SNS and other Web 2.0 sites, share commonalities including user-centric platforms, increased mass user-generated content, and user-friendly interfaces, they also have their own local specificities which need to be accounted for when tackling the question of regulation. For example, Web 2.0 platforms may vary from one another for many reasons including different interaction modes. Likewise, Web 2.0 platforms have ". . .large and dynamic graph" structures that differ from Web 1.0 platforms' bow tie structures. (17) Consequently, when regulators, law-makers, law enforcers and policy-makers attempt to regulate online platforms, they need to pay attention to the parochial and heterogeneous specificities of such platform in order to regulate them effectively.

In order to support the overall argument of this article, I use selected empirical findings on Facebook advertisements derived from my recent qualitative socio-legal case study of Facebook when data protection and privacy laws are at stake. This analysis generates the following three additional arguments.

First, I contend that multiple and diverse social, technological and legal octants are brought together when personal data rights are at stake in the context of Facebook advertisements. As an example, the following octants are often involved when personal data rights are at stake in Facebook:

* Algorithms embodied in programming languages executing specific functions, such as blocking targeted advertisements and Facebook users' interactions; (18)

* Data protection in-house and external lawyers with their networks of data protection law knowledge, legal skills (e.g. drafting privacy policies) and commercial awareness (e.g. how other SNS discharge their data protection compliance obligations); and

* Facebook users' interactions with brands, products and services. Such connections can often be rendered more obdurate through their links with "materialities" (for example, hyperlinks) or can fall apart (for example, resistance by Facebook users). This context-specific assemblage is complex as it is formed of social, technological and legal actants. It is also dynamic as new and old actants can join and leave the connective chain. Consequently, the regulatory space is far more complex and dynamic than previously thought.

Second, I argue that the following five power effects, namely, (1) legalizing the processing of Facebook users' personal data (or information relating to an "identified" or "identifiable natural person") for targeted advertising, (2) constituting Facebook users as autonomous individuals, (3) mass "dataveillance," (4) commodifying Facebook users, and (5) enacting particular versions of the marketplace, are generated from the local and varied associations which are involved when personal data rights are at stake in the context of advertisements. Here, I also underline how certain power effects, such as mass "dataveillance", can occasionally be ruptured as Facebook users resist by installing technologies which block Facebook advertisements.

Thirdly, I contend that the elicitation of valid consent in Facebook can often be a "perfunctory" and banal process which is reduced to mundane actions, such as button clicks. Here, I question to what extent Facebook users can be said to have provided valid consent in accordance with the applicable laws.

The remainder of this article is divided into seven sections. In section II, I critically evaluate the main academic writings on cyberspace regulation and argue that we need to move away from the dominant "regulatory" lens to my ANT-Foucauldian Power Lens in order to capture the potentially complex power effects generated in SNS when legal rights are at risk. I, then, present the main ideas of my ANT-Foucauldian Power Lens in section III. In section IV, I explain the methodology of this article. In section V, I provide a general overview of Facebook advertisements. In section VI, I outline the European data protection laws which regulate Facebook's data handling practices and policies in the context of Facebook targeted advertisements in order to anchor the analysis which is advanced in the remainder of this article. In section VII, I apply my ANT-Foucauldian Power Lens to analyze the diverse legal, technological, and social actants, such as algorithms, programming languages, data protection laws, and social practices which are locally connected with one another in the context of data protection and Facebook advertisements. In section VIII, I build on this relational analysis of Facebook advertisements to explore two power effects generated from Facebook advertisements, namely, legalizing the processing of new Facebook users' personal data and constituting Facebook users as autonomous individuals. In the final section IX, I analyze three additional power effects generated from other aspects of Facebook advertisements, namely, mass "dataveillance", commodifying Facebook users and enacting particular versions of the marketplace.

  1. CYBERSPACE REGULATION: FROM THE "NEW FRONTIER" TO REGULATION TO DYNAMIC REGULATORY SPACES TO POWER EFFECTS

    In this section, I present a brief and targeted critical evaluation of the three main themes of the cyberspace regulation literature, namely, regulation by self-regulation only; regulation by law, norms, the market, and "code"; and dynamic regulatory spaces. Based on this analytical evaluation, I argue that we need to move away from the restrictive conceptual lens of regulation to a wider lens of power to analyze the regulation of online platforms.

    Earlier debates about cyberspace regulation...

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