“Websites are not the only entities that do both research and not research,” he told me by phone. “The line has been litigated, written about, and thought hard about. It’s not as though this problem has never been considered before.”
Even if a hospital changed internal procedures to waste fewer drugs, he added, it wouldn’t constitute research because their aims would be all internal. It’s publishing the research and making it generalizable that triggers the state law.
To Grimmelmann and Henry, Facebook’s legal response to their allegation contains a tell. Palmieri repeatedly referred to Facebook’s News Feed manipulation as “research” in his letter to them, and they believe this reveals that the study was, in fact, a systematic investigation to a generalizable end.
Some bioethicists are less certain.
“Besides relying on a (perhaps) poorly selected choice of words in Palmieri’s letter (referring to the manipulated feed as ‘research’), I do not believe that it has been demonstrated that what Facebook did was ‘human subjects research’ as defined by the Common Rule,” said Valerie Gutmann Koch in an email. Koch is a law professor at the Illinois Institute of Technology, and she previously served as the senior attorney to New York state’s bioethics commission.
Koch said she largely agreed with a July letter published in Nature by six bioethicists that said that, while it would have been preferable for Facebook to run its study past an IRB, the experiment did not constitute “an egregious breach of either ethics or law.”
Koch added: “I also believe that the actions taken by Facebook in this instance were similar, if not identical to, what we would expect from the company on a daily basis, rendering informed consent unnecessary.”
Maryland is not the only state with more advanced protection for human research subjects. New York and California have similar statutes. I asked Koch if either company was likely to raise the empire state’s ire.
She didn’t think so.
“Purely behavioral, social science, and epidemiological research are exempted from the definition of research under Article 24-A,” she wrote, referring to the clause that protects human subjects in New York state’s larger Public Health Law. “To the extent that the Facebook trial qualifies as behavioral or social science research, it may therefore not be subject to New York State law.”
If the attorney general enforced the Maryland law, it would be the first time House Bill 917 had been applied to a private company. The law was passed by overwhelming majorities in 2002, after two experiments—one that exposed Baltimore infants to lead dust, and another that led to the death of a 24-year-old technician—attracted local attention for ethics violations.
Both of the studies that led to the law were federally funded, and thus IRB-vetted, according to Henry. But, she added, the two studies “created awareness of the real costs—and often tragic costs—that we suffer when we don’t have ethical oversight of research.”
For now, Grimmelmann and Henry await a response from the state’s attorney general.
“Informed consent and review aren’t that hard. They’re doable. There’s no serious reason not to do them,” said Grimmelmann.
“I hope they will be interested in pursuing this,” he said of the state’s lawyers. “And I hope Facebook and OKCupid will be more open about taking this seriously.”