User Data as Public Resource: Implications for Social Media Regulation

Revelations about the misuse and insecurity of user data gathered by social media platforms have renewed discussions about how best to characterize property rights in user data. At the same time, revelations about the use of social media platforms to disseminate disinformation and hate speech have prompted debates over the need for government regulation to assure that these platforms serve the public interest. These debates often hinge on whether any of the established rationales for media regulation apply to social media. This paper argues that the public resource rationale that has been utilized in traditional media regulation in the U.S. applies to social media. The public resource rationale contends that, when a media outlet utilizes a public resource – such as the broadcast spectrum, or public rights of way – the outlet must abide by certain public interest obligations that may infringe upon its First Amendment rights. This paper argues that aggregate user data can be conceptualized as a public resource that triggers the application of a public interest regulatory framework to social media sites and other digital platforms that derive their revenue from the gathering, sharing, and monetization of massive aggregations of user data.