The University of Chicago’s Coase-Sandor Institute for Law and Economics continued its global push to bring the prism of economic analysis to bear on society’s most pressing legal issues, cohosting a conference in Paris that drew top European and American scholars, lawmakers, and industry insiders to examine the complicated interaction between law and the fast-evolving data economy. The March 22 event was the latest collaboration between Omri Ben-Shahar, the Kearney Director of the Coase-Sandor Institute, and French scholar Florence G’sell, scientific director of the technology, governance and institutional innovations chair at Sciences Po University in Paris.
“The US and Europe approach the challenges of the data economy in vastly different ways,” said Ben-Shahar, the Leo and Eileen Herzel Professor of Law. “This tension is a fantastic platform for academic exchange, and indeed there were intellectual fireworks in the auditorium.”
The symposium built on the successful 2017 Paris conference, Big Data and the Law, organized by Ben-Shahar and G’sell, who attended the Law School’s Summer Institute in Law and Economics in 2015. The Summer Institute, an annual two-week program for international scholars that was launched in 2012 by Ben-Shahar, has already trained over 500 professors globally and has given rise to a variety of partnerships around the world, from scholarly collaborations to academic programs to conferences.
This year’s Paris conference, held at the historic Collège des Bernardins in the city’s Latin Quarter, took on some of the most challenging questions presented by the data economy. Scholars spent the day debating privacy and ownership of consumers’ data; the ethical implications of using algorithms to personalize aspects of the law; challenges to competition and antitrust policy, including investigations in the United States and United Kingdom into whether tech giants like Facebook and Amazon have engaged in monopoly behavior; and more.
“These are the great legal challenges of our time,” Ben-Shahar said. “We see the emergence of major technological firms, bigger than we’ve seen ever before in terms of their control of the market and rapidity of their growth. How do we address the problem of concentration when some of these monopolies also happen to be consumers’ most beloved of companies?”
The questions posed by the changing economy, he noted, are not limited to how the law regulates Big Data, but how Big Data is shaping the law.
“Can the law become personalized in the same way that insurance, medicine, education … are? Can legal advice be given more accurately by algorithms? ... Can judges be replaced by AI machines? Would that take away their biases?” Ben-Shahar asked at the start of the conference. “These are questions that the law has to wrestle with as Big Data pushes the old habits out and introduces new possibilities that are sometimes hard to resist. Dialogues like this are intended to help us figure out whether we want to forge ahead or maybe pause and hold on to some of the more traditional ways in which we regulated our society.”
Several University of Chicago professors were among the presenters, including Ben-Shahar; Randal C. Picker, the James Parker Hall Distinguished Service Professor of Law; Ariel Porat, the Fischel-Neil Distinguished Visiting Professor of Law; and keynote speaker Sendhil Mullainathan, the University Professor of computational and behavioral science at the University of Chicago Booth School of Business.
During a session on competition and regulation, Picker talked about the ways in which traditional ideas about competition and pricing might not fit online markets in which users essentially “pay” for a service by giving up personal data—a price that is largely invisible.
“If you’re paying in data, how do you know how much you’re paying?” Picker said. “I just handed €2 to someone for this Diet Coke, and I knew exactly how much I was paying. But how much did I ‘pay’ this morning to Twitter in data when I was posting a bunch of tweets about this conference? I just don’t know.”
When those costs are not visible, he said, firms are less likely to feel constrained by consumer response and are likely to “charge” more by taking more data.
“The salience problems with data are substantial,” Picker said. “I think there’s going to be a call to move to … public-utility-style regulation—and that will be a super-interesting conversation and a difficult one.”
Ben-Shahar, who participated in a session on accountability and ethics, offered a new way of considering the impact of large-scale data collection, using an analogy to environmental pollution to explore the ways in which data collection can disrupt social institutions and public interests. He pointed to accusations that the consulting firm Cambridge Analytica had mined data on Facebook users in attempts to sway the 2016 US election and the 2016 Brexit vote and revelations that GPS data shared by users of an athletic social media app potentially had revealed the locations of US military and intelligence agency personnel.
“’Data privacy’ looks at [these issues] as if the collection of personal information causes private harms to the people whose personal information is being taken,” he said. “But ‘data pollution’ understands the problem differently: harms are created not to the people whose data is taken but to social environments.”
Addressing these harms, he added, “requires some sort of social intervention … an environmental law for data protection.”