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There is concern among observers that algorithms, not people, may continue to make digital media into a “behavior modification” mechanism.

As with the last few issues of this newsletter, there is so much to potentially write about, I’ve had to choose. I could have written about recent trials in the Arbery case in Georgia or the Rittenhouse case in Wisconsin. As a former federal judge’s law clerk and a former trial attorney, I see error (probably leading to reversal on appeal) in both cases. Maybe, there will be more to say, but for now, I’ll comment (and invite readers to comment also) on serious societal issues coming to the fore when algorithms come to color certain social media communications.

A friend, who has unfortunately passed away, was the first person to .convince the U.S. Patent Office that algorithms could be patented. Prior to 1974. the Patent Office had taken the position that algorithms were mathematical calculations and therefore, not available for patent protection. Following this rational, the Patent Office refused patent protection for “mathematically based” software programs. Pal Asija, who was both an engineer and patent attorney persisted (including having graduated from law school) in the patentability of certain algorithms including his own invention which he called :Swift-Answer”. His persistence and commitment to his legal points paid off and his algorithmic description of his invention was granted a U.S, Patent in 1974. He also wrote a book on “How to Patent Software”. Even today, the issue of so-called “software patents” engenders much discussion both in the United States and elsewhere.

There can be no question about the use of algorithms (most are considered proprietary and secret therefore not disclosed in a patent or trademark application) in modern computer programs. But, are they also designed to force users to a particular place/company? With recent comments by advocates and company employees, there can be little doubt that Facebook and probably other sign-on membership platforms have designed algorithms to send information about potential customers to company clients asking for that data. While it is not easy to determine, I’m assuming this is a major source of revenue for the digital platform supplier.

Many people from companies themselves and industry commentators have called for reform. It has been called an invasion of rights to privacy. The taking of advantage of information gathered by companies – without consent – and the ultimate sale of this data for profit had led to much criticism. Recently, Facebook through Mark Zuckerberg and others has even publicly called for reasonable suggestions and changes in public policy including some form of regulation. It remains to be seen what form the regulations, if and when they come, will take and if it ultimately risks any revenue source for Facebook (or maybe new corporate parent Meta) and others. This whole field and questions raised by the information gatherers can be seen as a major opportunity for good as the field of online information gathering continues and expands. However, resistance can be expected if potential regulation threaten the “bottom-line” for Facebook or other such firms.

I am not technically qualified to recommend any particular regulations regarding harvesting of data. I also hope that potential regulators can know about what is happening in the field and what regulation may be called for. But, it is not speculation to assume that regulation is coming. It may take the form of corporate break-ups or particular strictures on the type of information gathered, notification of from whom it is gathered or more generic statutes (legislative) or regulations (administrative), but it is coming. We’ll try to watch for it and comment – when appropriate.

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