Every day companies mine online data to track consumer habits, but two University of Maryland law professors say Facebook and dating service OkCupid went too far by manipulating their users' experience to study their behavior.
At the professors' urging, Maryland Attorney General Douglas F. Gansler agreed to review this week whether the companies' actions are akin to patients being pulled into medical research without their knowledge. Federal law requires participants' consent and independent oversight of such experiments, and a state law broadened those regulations.
But Facebook officials say those rules don't apply to its research, including a recently disclosed project that measured users' moods after adjusting the tone of the posts that appeared to them. The social network described its research as product testing, permitted under the terms of service users agree to before participating on the site.
The professors' allegations open a new facet in the debate over consumer privacy — whether companies can fairly or properly use their massive stores of consumer behavior data to learn more about human nature, whether for the benefit of the public or the companies themselves. Gansler said the issue may not be whether what the social networks did was legal, but whether it was ethical.
"It may or may not be a violation, technically, of the law as the professors set forth; it may or may not be a violation of the users' privacy," Gansler said. "But that doesn't mean it's the right thing to do, that there isn't a sort of better way of doing it."
Both companies faced criticism in recent months after revealing data they gathered through experiments in which they altered users' experiences on their websites and measured the effects.
In a Facebook experiment in 2012, a company employee worked with researchers at Cornell University to study whether users' moods responded to their Facebook feeds. The researchers showed 689,000 users fewer posts that contained emotional language, and then analyzed their posts for emotional language. They found that users who saw fewer positive posts used fewer positive words in their own posts.
This summer, OkCupid revealed a handful of experiments it conducted on users. In one, the dating website, which uses algorithms to give users compatibility ratings, altered the ratings so that "bad" matches were assigned strong compatibility ratings and "good" matches were assigned low ratings.
"When we tell people they are a good match, they act as if they are," the company found, according to a July post on the company's blog. "Even when they should be wrong for each other."
But James Grimmelmann and Leslie Meltzer Henry, both professors at the Francis King Carey School of Law, say that just like academics or other researchers, the websites should have notified users they were participating in the experiments.
"This is about whether Facebook and OkCupid are unwittingly using their users as research subjects without their consent and without any ethical oversight," Henry said in an interview.
Grimmelmann and Henry suggest that the companies violated the spirit of what is known as the Common Rule and the letter of a state law by not allowing customers to choose whether to participate in the research.
"We ask only that Facebook and OkCupid be held to the same standards everyone else is, just as Maryland law requires," the professors wrote in a letter to Gansler on Tuesday.
In place since 1981, the Common Rule requires researchers conducting medical and behavioral experiments to receive human subjects' informed consent before including them. The rule also requires researchers to get their experiments vetted by an institutional review board, a panel of peers that reviews projects for ethical concerns. The rule applies mainly to federally funded research, but the Maryland General Assembly broadened its reach with a law passed in 2002, applying the requirements to all research conducted in Maryland.
Facebook officials, responding in a letter to Grimmelmann and Henry, said the website's research is not subject to the law, describing it as product testing explicitly disclosed in its terms of service, not scientific experiments.
"We know some people were upset by this study and we are taking a hard look at our internal processes as a result," Facebook spokesman Israel Hernandez said in a statement. "The requirements specified by the federal Common Rule and Maryland law do not apply to research conducted under these circumstances."
OkCupid officials did not respond to requests for comment.
Gansler said state lawyers have worked closely in the past with Facebook about privacy concerns, but never on any issues related to research ethics. He said he expects the site to cooperate.
One ethicist said such discussions can boil down to both legal and ethical principles. Those ethics can be complicated when the debate involves going beyond merely observing social media users to intervening in their experiences on the sites, and, possibly, deceiving them.
"I think of it that each of those stages, the ethical stakes are higher for the risks that individuals might experience," said Dr. Matthew DeCamp, an assistant professor at the Johns Hopkins Berman Institute of Bioethics. "When you get into some of that more complicated ethical terrain, that's where ethicists would suggest that the more robust informed, consent-like process could be needed."
What the consequences of the attorney general's review could be is unclear. The professors called on Gansler to issue an injunction barring the companies from including Maryland residents in their experiments unless they receive informed consent and the oversight of a review board. Gansler said he doesn't think that is necessary.
"In this context, the conduct took place and has stopped," said Gansler, adding that his staff already spoke with Facebook officials and plan to meet with them. "Generally, we have almost always been able to resolve the issue and kind of meet in the middle. I imagine that would be the situation in this case."
But Henry said she doesn't expect resolution to come so easily.
"It's hard for me to believe this is something that was a one-time deal," said Henry, who is also on the faculty at the Berman Institute. "I would be shocked to find they have suddenly stopped engaging in this research."
Both sites constantly study their data. A section of Facebook's website is dedicated to sharing published research that uses its data, including recent studies on predicting how often users will click on the site's ads and exploring "friending" patterns and parent-child relationships on the site.
Dating website OkCupid has made no secret of its vast collection of data and the lessons it can provide. In a book called "Dataclysm: Who We Are (When We Think No One's Looking)" published this month, OkCupid CEO Christian Rudder argues that data on human behavior provides an unprecedented opportunity for sociological research — and "blind" experiments in particular. The firm's website frequently shares data on how its users behave with regard to touchy issues such as racial preferences.
As technology continues to advance and the stores of data continue to grow, that could present more ethical questions.
"We do want to have a lot of the benefits social media technologies bring," DeCamp said. "We just want to do so in a way that's consistent with our core ethical values."