Consumer Legal Protections Against the Layers of Big Data

Abstract

Much media attention over the past year has focused on the potential privacy implications of federal government national security and surveillance practices. Whereas, private entities appear to attract less scrutiny despite their increased involvement in data collection. Instead, consumers willingly agree to broad terms of service agreements that have implications on the use of their information for years to come. Moreover, market dominance by a few tech giants and their major acquisitions have arguably created information monopolies whereby single companies possess an array of user communication and data. Nonetheless, few federal consumer data protection laws exist to regulate the newly emerging big data industry. Now, even the White House is concerned about the amount of data amassed by the private sector.

The consolidation of user data is often billed as a digital ecosystem in which consumers can seamlessly interact with their contacts and devices. However, seemingly-ambiguous terms of use create uncertainty over how information can be used not only today but also in the future. Thus far, such information has proved incredibly valuable for advertisers. Looking forward, big data can potentially shape consumption patterns while affecting now unknown privacy implications for consumers. Currently, user data is collected through the use of operating systems such as Android, in transit over wireless and wireline infrastructure provided by companies such as Verizon, to access social media sites such as Facebook. This “layered” data collection and transmission regime raises questions about the use and protection of consumer information.

Existing research has primarily focused on the privacy implications of big data and its potential for misuse for surveillance purposes. This paper sets forth to answer the following research questions: What are the legal rights conferred in existing terms of use agreements? How are these terms of use agreements interrelated with one another within the layers of the Internet, ostensibly Internet access service (e.g. Verizon), operating systems and/or portals (e.g. Google), and content services (e.g. Facebook)? To explore these questions, this paper utilizes legal analysis and research to carefully examine the terms of use agreements of Google, Verizon, and Facebook. Upon understanding the rights within such agreements, this research focuses on judicial treatment of the broad terms in clickwrap agreements by which consumers transfer their data to large companies in addition to the statutory and administrative regulations of such agreements.

Perhaps more importantly, this paper seeks to determine what limits are imposed on private companies’ use of consumer data within the multiple layers of the Internet. Existing privacy regulations will be reviewed to identify gaps and opportunities for improvement in an environment where arguably terms of use agreements are commingled together. To help illustrate this trend, the impact of the layers of big data will be discussed from the users’ perspective. This paper concludes by offering potential consumer remedies to safeguard privacy and big data concerns as well as suggestions to help provide greater clarity to terms of use agreements.