Spring 2020] When Worlds Collide 281
INTRODUCTION
The United States Supreme Court has recognized that “seismic shifts in
digital technology”
1
are presenting novel issues,
2
the resolution of which
must anticipate its further rapid development. Digital technology now per-
meates the human experience, presenting an array of novel and unanticipat-
ed challenges presently unchecked in the absence of a comprehensive regu-
latory framework. The creation of virtual worlds that collide with the real
ones we inhabit forces society to question the extent to which our identities
are immutable, and the extent to which we can continue to protect our per-
sonal information and property.
While legislators scramble to enact reactive legislation in the face of
scandals like Cambridge Analytica
3
and foreign efforts to influence domes-
tic elections,
4
tech companies insist that their efforts to self-regulate will
generate the necessary change. However, apology tours and references to
corporate ethics as a remedy have been criticized as “an end-run strategy to
avoid robust regulation.”
5
Indeed, it is the inconsistent application of their
own ethical guidelines, and the fundamentally conflicting priorities of
shareholders, regulators, and consumers that perpetuate this problem.
It is beyond dispute that protective legislation will be unable to keep up,
much less catch up, with technological changes. The burden of anticipating
and addressing issues presented by emerging technologies will ultimately
fall upon the businesses responsible for generating them. This duty was
most notably adopted in response to a class action lawsuit brought against
1. Carpenter v. United States, 138 S. Ct. 2206, 2219 (2018).
2. See, e.g., Shigenori Matsui, Does It Have to Be a Copyright Infringement?: Live
Game Streaming and Copyright, 24 T
EX.INTELL.PROP. L.J. 215 (2016); Andrew V. Mo-
shimia, Giant Pink Scorpions: Fighting Piracy with Novel Digital Rights Management Tech-
nology,23 D
EPAUL J. ART,TECH.&INTELL.PROP. L. 1 (2012).
3. See Saro Mohammed, Why the Recent Facebook/Cambridge Analytica Data
“Breach” Matters for Students, B
ROOKINGS (June 6, 2018), https://www.brookings.edu/blog
/brown-center-chalkboard/2018/06/06/why-the-recent-facebook-cambridge-analytica-data-
breach-matters-for-students (noting that the Cambridge Analytica scandal had implications
beyond the elections, including into the area of academics). See generally, Alvin Chang, The
Facebook and Cambridge Analytica Scandal, Explained with a Simple Diagram, V
OX (May
2, 2018, 3:25 PM), https://www.vox.com/policy-and-politics/2018/3/23/17151916/facebook-
cambridge-analytica-trump-diagram.
4. See Devin Coldewey, Russian-Backed Content May Have Reached 126 Million on
Facebook, T
ECHCRUNCH (Oct. 30, 2017, 7:03 AM), https://techcrunch.com/2017/10/30
/russian-backed-content-may-have-reached-126-million-on-facebook.
5. See Yana Welinder, A Face Tells More Than A Thousand Posts: Developing Face
Recognition Privacy in Social Networks,26 H
ARV.J.L.&TECH. 165, 193-95 (2012) (“The
FTC has previously found various Facebook practices to be unfair and deceptive.” However,
because “unfair and deceptive” are ambiguous, narrow standards, a “race to the bottom” has
been created “whereby online businesses narrowly interpret privacy laws in order to gain a
competitive advantage.”); Evan Selinger, Will Tech Companies Ever Take Ethics Seriously?,
M
EDIUM (Apr. 9, 2018), https://medium.com/s/story/will-tech-companies-ever-take-ethics-
seriously-35d991f9f839.