Preston Torbert, ‘“Because It is Wrong”: An Essay on the Immorality and Illegality of the Online Service Contracts of Google and Facebook’

ABSTRACT
This essay argues that the behavioral-advertising business model under which an internet platform, such as Google or Facebook, provides free services in exchange for the user’s personal data is immoral and illegal. It is immoral because it relies on addiction, surveillance, and manipulation of the user to deplete the user’s autonomy. The contract between the company and the user is immoral. It can also be plausibly argued that the contract is illegal under California law because it is contrary to good morals, is unconscionable, and is against public policy. As society becomes more aware of these moral and legal defects, courts in the future should be more willing to find these contracts illegal and thus void. In such case, the user’s consent to the contract would be nullified and the company would have no legal right to gather and monetize the personal data of the user. The companies should then be forced to convert to a subscription model with a fiduciary duty to users to restrict the gathering and monetizing of personal data. This essay employs perspectives not only from morality and law, but also from philosophy, history, political theory, and neuroscience. Part One covers morality, Part Two legality.

Preston M Torbert, ‘Because It is Wrong’: An Essay on the Immorality and Illegality of the Online Service Contracts of Google and Facebook, 12 Case Western Reserve Journal of Law Technology and the Internet Issue 1 (2021).

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