User Data as Public Resource: Implications for Social Media Regulation

Abstract

Revelations about the misuse and insecurity of user data gathered by social media platforms have renewed discussions about how best to characterize property rights in user data. At the same time, revelations about the use of social media platforms to disseminate disinformation and hate speech have prompted debates over the need for government regulation to assure that these platforms serve the public interest. These debates often hinge on whether any of the established rationales for media regulation apply to social media. This article argues that the public resource rationale that has been utilized in traditional media regulation in the United States applies to social media. The public resource rationale contends that, when a media outlet utilizes a public resource—such as the broadcast spectrum, or public rights of way—the outlet must abide by certain public interest obligations that may infringe upon its First Amendment rights. This article argues that aggregate user data can be conceptualized as a public resource that triggers the application of a public interest regulatory framework to social media sites and other digital platforms that derive their revenue from the gathering, sharing, and monetization of massive aggregations of user data.

Back from the dead (again): The specter of the Fairness Doctrine and its lesson for social media regulation

“…Current trends related to calls to violence, hate speech, and disinformation, and inadequate responses by the platforms in responding to these problems, make a compelling case that some form of intervention is necessary to help protect and preserve a democracy that is increasingly at risk (Bernoff, 2020; LaFrance, 2020). I address possible paths forward in this regard elsewhere (Napoli, 2019a, 2019b).…”

“…It is beyond the scope of this article to delve deeply into the First Amendment‐related arguments for and against the imposition of fairness obligations upon social media platforms (for work in this vein, see Szoka, 2020). Some have argued that one approach to justifying content‐based regulation of social media platforms is to treat aggregate user data as a publicly‐held resource; collectively‐owned in the same way that the public “owns the airwaves,” making large social media platforms public trustees along the lines of broadcasters (Napoli, 2019a). This rationale, however, requires a wholesale reconsideration of how we think about property rights in user data—a conversation that does not appear to be going anywhere in this country.…”

Platform power in the video advertising ecosystem

“…However, more information on the firms involved and how they are represented in the data used at this node would be needed to identify any unhealthy imbalance in that distribution. At the metrics node, we argue that precise investigation into the way metrics are defined and the accessibility of that process could provide justification for the non-personal data involved to be deemed a public resource (Napoli, 2019), or for other means of encouraging or enforcing data openness. Information gathering and assessment at these nodes will likely require the powers to elicit information held by regulators.…”

Whose dystopia is it anyway? Deepfakes and social media regulation

“…Since ‘[C]ontent-related concerns…have sparked debates over the appropriate scope of social responsibility that should be required of social media platforms in their gatekeeping and content-curation functionality’ (Napoli, 2019: 3); studying discussions about the evolving regulation of deepfake content on social media becomes a promising venue for understanding the future of our digital media ecosystem. Through the review of related literature, we were able to identify two possible gaps that the current article seeks to fill: First, by providing insights about the place of news sources in advocating regulatory actions, we addressed the growing need to unpack the specificities of calls for social media regulation and content moderation.…”