October 08, 2019

Is Instagram the Next Frontier for Data Privacy?

Patrick McKnight

It’s been a long, hot summer with exciting developments in data privacy and cyberspace law. New state statutes will soon go into effect in California and recently went into effect in Nevada. Several other states have proposed their own data privacy bills which continue to wind their way through those legislatures. Facebook has become the object of unprecedented regulatory attention and hit with historic fines. Mark Zuckerberg’s social media empire is blamed for everything from election tampering to psychological disorders.

Interestingly, another Facebook-owned platform has largely escaped public scrutiny despite rapid, widespread adoption. Instagram has over 1 billion users and enjoys greater popularity than its parent company among younger demographics. In fact, it’s now the fastest-growing social media platform by a significant margin. Unlike most other social networks, Instagram is based around sharing images, photographs, and short videos instead of written text.

Instagram was launched in 2010 and acquired by Facebook in 2012 for $1 billion. Instagram advertising is growing, but in contrast to Facebook, Instagram’s users are generally discouraged from sharing external links. Some analysts predict Instagram will generate up to $10 billion in advertisement revenue in 2019.

Is Instagram Addictive?

Social media platforms have become a favorite target for politicians concerned about data privacy, fake news, and election interference. This summer some lawmakers launched a new regulatory push based on a different theory. Most notably, Senator Josh Hawley proposed the Social Media Addiction Reduction Technology (SMART) Act. The motivation behind the SMART Act is the idea social media platforms like Instagram are intentionally designed to encourage become addictive for users.

Among other restrictions, the unprecedented bill would force platforms to limit users to 30 minutes of use per day. Studies indicate 63% of Instagram users log into the app on a daily basis and stay for an average of 53 minutes.

"Their business model is increasingly exploitative in nature and I think that these are companies that are trying to evade accountability," explains Mr. Hawley, a freshman Senator from Missouri. The bill would also prohibit infinite scrolls and auto-play of video and audio.

"The big tech platforms have adopted a business model that takes our private information without telling us, sells it without our consent, and then it tries to use exploitative and addictive practices in order to get us to spend more time on their platform, so they can take more stuff from us," Senator Hawley said.

The SMART Act is unlikely to pass, but it may be an important bellwether. Instead of merely proposing to regulate Big Tech policies and procedure, the act would limit consumer use of the technology itself. Critics characterize the bill as misguided and paternalistic.

Investigating the Instagram Acquisition

The SMART Act isn’t Instagram’s only potential problem this year. This summer the FTC announced a new anti-trust investigation into Facebook’s 2012 acquisition of Instagram. Some believe this announcement is another indication that regulators are taking an increasingly closer look at Instagram. The Federal Trade Commission has previously issued numerous letters expressing concerns about Instagram “influencers” not disclosing their affiliations with advertisers to consumers.

The new antitrust investigation was announced as Instagram’s parent company agreed to a record $5 billion settlement on July 24th. Facebook bought Instagram for $1 billion when the platform only had 30 million users and no revenue.  

Facial Recognition Concerns

Instagram may be the “selfie” capital of the internet. Many users may not realize Instagram uses facial recognition technology to automatically recognize their identity. Some privacy activists fear viral trends such as “The 10 Year Challenge” may be more than another harmless internet sensation. Some technology journalists expressed concern this “challenge” was an example of misleading tactics encouraging users to unknowingly surrender personal information. Almost simultaneously, “FaceApp” went viral in July and raised similar privacy concerns. The Democratic National Committee issued a warning encouraging presidential candidates to delete the app from their phones. 

Skeptics of the 2019 facial-recognition panic argue this horse is long out of the barn. With billions of photos already uploaded to Facebook and Instagram, it’s not clear why any misleading data collection techniques would even be required. Facebook’s facial recognition technology has been using “tagging” data to create its database for years.

On the other hand, the privacy risks associated with facial recognition are real. Unlike other forms of personal data, users can’t delete their face. Governments are increasingly using facial recognition technology to monitor both criminals and law-abiding citizens. China is notorious for their investment in artificial intelligence and facial recognition technology to help implement a “social credit” system. Closer to home, law enforcement officials in the United States are already using facial recognition technology to conduct investigations.

Conclusion

Instagram could surpass Facebook as the most popular social media platform in the United States within a few years. Relative to the ongoing uproar over Facebook, some believe Instagram deserves more regulatory attention than it has received thus far.

Social media platforms almost certainly use cognitive science and psychology to encourage compulsive use. In fact, much of this research appears to have been gleaned from the gambling industry. Even so, it’s not totally clear government regulation of social media would be appropriate or effective.

Concerned users should become more informed and thoughtful about how they use social networks. Users worried about facial recognition can simply refrain from posting photos or tagging themselves and their friends. Privacy settings should be reviewed on a regular basis.

Apprehension about social media is not unjustified. But this alarm might say more about how consumers choose to use these networks than the platforms themselves. Disruptive new technologies inevitably produce unanticipated consequences. Of course, the same can be said of hastily-drafted regulations.

There is some research to indicate many users have already become more careful about sharing personal information online. If this trend continues, it will impact the developing balance between increased regulation and consumer choice.

This is a dynamic, developing area of the law worthy of increased attention in the coming months.

Patrick McKnight

Wilson Elser LLP

Law Clerk at Wilson Elser LLP and JD/MBA candidate at Rutgers University. I will graduate in 2019 with a Certificate in Corporate and Business Law. My work focuses on defense litigation in the areas of construction law, corporate law, cybersecurity, and cannabis law.