We need answers as well as questions

Coincidentally with your piece on a new course, Social Media and the Law, in the Winter 2020 issue of the Harvard Law Bulletin, The New York Times published an article by Harvard Business School Professor Emerita Shoshana Zuboff. It speaks forcefully in a well-reasoned analysis of “surveillance capitalism,” describing how personal information and data, gleaned from an individual’s use of the internet and similar means, are accessed, analyzed, and used to affect people, hence society, in ways unknown to the individual and the society. In the case of surveillance capitalism, these intrusive and complex undertakings are used to promote a particular business interest.

Monika Bickert '00 teaching a class at HLS

Credit: Mark Ostow Monika Bickert ’00

As described in your article, the Social Media and the Law course at Harvard Law School appears to be an initial effort to come to grips with the phenomenon of surveillance capitalism and comparable, generally undesirable, progeny. The course legitimately appears to raise the myriad of questions that flow from an analysis of the present and possible future state of the law of social media, though the article to me focused more on the questions than the answers. Ultimately, it is primarily answers to legal issues that need to underlie efforts to address new areas of the law. Such answers most likely will take the form of laws, regulations and international conventions, as well as case law deriving from the developing theories of law pertinent to social media.

Professor Noah Feldman teaching a class at HLS

Credit: Mark Ostow Professor Noah Feldman

Such developments usually result in an increase in societal awareness of the underlying forces and the impacts, usually unknown, on individuals and society. I hope, actually expect, that is a direction that the new Social Media and the Law course will take. If that is not within the course framework as presented by Professor Noah Feldman and Monika Bickert, I believe it should be. I also believe that the companies engaged in the use or misuse of social media cannot regulate themselves. The incentives work against such an approach and, to date, private business and many governmental bodies have been woefully deficit in addressing the concerns. Ms. Bickert’s employer, Facebook, appears to be one of the worst examples of why self-regulation will not work. Laws, regulations, international conventions, and case law must have a key role in thwarting and redirecting the profit-based and hands-off inclinations of the media companies and the inclinations of the senior executives of such companies to manipulate information in ways that are likely to be, or are actually known to be, harmful.