Social Networking Site Regulation: Facebook, Online Behavioral Advertising and Data Protection Laws

Abstract

Debates about cyberspace regulation are dominated by the Lessigian idea of regulation through law, norms, market and “code”. From this vantage point, questions about cyberspace regulation narrowly focus on which regulatory modality achieves what function. Recently, some scholars have argued against the adoption of a “tools-only” perspective when analyzing cyberspace regulation. Rather, they contend that attention should also be paid to how multiple actors interact with each other and such tools in context. However, these perspectives are still tied to regulatory concepts which restrict analysis. Wider matters, such as the potentially multi-directional power effects generated in online platforms or resistance to regulation, are not examined in detail.

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 understand more fully (a) the complexity, dynamism and precarity of the regulatory space in online environments when legal rights are at stake and (b) the intricate and multiple power effects (including regulatory effects) generated in these instances. I use selected empirical findings derived from my recent empirical project, where I examined data governance in the context of Facebook behavioural advertisements, to support my overall argument.

This empirical analysis suggests that the regulatory space is far more complex and dynamic than previously thought. Multiple and diverse social, technological and legal humans and non-humans are brought together when personal data rights are at stake in the context of Facebook advertisements. 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). A whole host of 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 these local and heterogeneous assemblages. Finally, a closer empirical look at how valid consent is elicited in Facebook suggest that this can often be a “perfunctory” and banal process which is reduced to mundane actions, such as button clicks. This raises important questions about whether Facebook users have indeed provided legally valid consent.

Keywords: Facebook, cyberspace regulation, cyberspace, social media, data protection, privacy, power, regulation, socio-legal studies, Foucault, Actor-Network Theory