Cambridge Analytica: The legal implications for Facebook and everyone else

By Yves Faguy March 21, 201821 March 2018

Cambridge Analytica: The legal implications for Facebook and everyone else

Licensed under Creative Commons by lookcatalog

Facebook is clearly in trouble over allegations that the social media giant has been derelict in its duty to protect its users’ privacy, in the wake of revelations that the British firm Cambridge Analytica harvested information, without permission from the Facebook profiles of more than 50 million of its users.  Facebook is now facing multiple investigations in several countries -- never mind the lawsuits piling in.

The US Federal Trade Commission looking into whether Facebook violated its 2011 settlement by allowing the misuse of user data ostensibly collected for academic research.

In the UK, Facebook CEO Mark Zuckerberg has been personally summoned to appear before a House of Commons committee to give testimony on the latest developments in the matter.

The EU is hinting, too, that major fines may be on the way.

And now the Office of the Privacy Commissioner of Canada is now launching its own investigation.

Facebook has said in a statement that it has suspended Cambridge Analytica from its platfotm.  And there are reports out now that Zuckerberg is ready to address the issue publicly.

The legal issues

Lawfare has a helpful primer. Written by Andrew Keane Woods, on what’s at stake legally for Facebook and Cambridge Analytica (as well as its researcher Aleksandr Kogan, who is allegedly responsible for scrapping the data on the latter’s behalf). The possible legal violations ranges from computer fraud to misuse of personal information acquired from a computer network, breach of contract and U.S. securities laws. The bottom line is that lawyers will be busy:

If you’re Kogan, or Cambridge Analytica, expect lawsuits, public hearings and general regulatory hell. Maybe, in the extreme, jail time. If you’re Facebook, expect lawsuits, public hearings, and general regulatory hell. Maybe, in the extreme, the end of the firm as we know it.

Facebook is hoping to pin this on two bad apples: Kogan and Cambridge Analytica. And bad apples they were. But this is a dangerous strategy. For Facebook, the claim that it was always upfront about how user data might end up in developer hands is a strategy that wins the battle but loses the war. If users and regulators decide that the firm did not do anything out of the ordinary—that this is just the way Facebook works—they may reasonably conclude that the firm itself is unacceptable.

Woods advises Facebook to hire a really good team of antitrust lawyers, especially as calls for new rules around competition and enforcement are quickly (and loudly) reemerging.

Meanwhile Kalev Leetaru takes a closer look at the use by political campaigns of data analytics, and concludes that Obama’s 2012 campaign laid the groundwork for the type of activity Cambridge Analytica is being accused of:

The only difference appears to be that in the case Cambridge Analytica case, Facebook claims that the data was gathered for academic research and then made available for campaigning, while in the Obama case the campaign was in charge of data collection from the start. Given the academic tradition, at least in the US, of corporate-funded research, it is likely Cambridge Analytica could easily have simply funded the necessary research directed at a university to ensure all usage was still considered to be academic in nature and avoided the whole controversy, to begin with.

And lest we think Canada is immune from this, data mining was present in a big way during the 2015 federal election.

On that topic, BLG privacy lawyer Éloise Gratton told Radio Canada discusses (at the 1:50 mark) the legal implications of privacy laws for political parties tapping into user data available on social networks. Essentially, this is information that is publicly available, she explains, but that remains personal information. A third party collecting that data for a different use should technically get consent under Canadian privacy law.  Trouble is, Canadian political parties aren’t subject to laws that apply to the public sector, nor do privacy laws that regulate the private sector capture them

Acting Democratic Institutions Minister Scott Brison indicated yesterday certain openness to revisiting Canada’s privacy laws, though it’s unclear how that would affect political parties.

 Photo licensed under Creative Commons by lookcatalog

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