Earlier this week, University of Maryland law professor James Grimmelmann accused Facebook of breaking the law with its psychological study, in which hundreds of thousands of users were unwittingly involved in a mood-testing experiment in 2012. Facebook's secret testing, Grimmelmann says, violates a Maryland statute that requires anyone conducting human subject research within the state to obtain people's informed consent and to obtain approval from an academic ethics board. Grimmelmann considers the law to include Facebook because, he argues, Facebook's testing a) constituted "research" as defined by the law and b) almost certainly affected Marylanders.
At least on the second point, Maryland's top lawyer seems to agree. In an interview Wednesday, state Attorney General Douglas F. Gansler said there would be little question of standing if the question came before a judge.
"It's hard to imagine, given the reported volume of people that were subject to this test, that somebody in Maryland wasn't touched by this test," Gansler said. He said that his office was still studying the issue and that the fact that some users felt inadequately informed is "troubling."
On Tuesday, Grimmelmann asked Gansler to intervene by banning Facebook from conducting any further studies under the Maryland law, known as HB 917.
Facebook has argued that its study, which hid certain content from people's newsfeeds in a bid to influence users' emotional states, was not "research" in an academic sense but simply a matter of product quality testing. Furthermore, the company argues, users are told in the service's terms and conditions that their data may be used by the company.
"We know some people were upset by this study, and we are taking a hard look at our internal processes as a result," Facebook said Thursday in a statement to The Washington Post. "The requirements specified by the federal Common Rule and Maryland law do not apply to research conducted under these circumstances."
Considering that Facebook sought to publish its work in a leading scientific journal, Grimmelmann believes that the social network's research should be bound by academic ethics.
But Gansler said that issue isn't so clear-cut. "At this time it's unclear what, if any, legal precedent is available for this kind of study," he said, "whether or not that's interpreted as studying human subjects — whether that comes under the auspices of the law in letter or spirit."
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