Swaths of personal and nonpersonal information collected online about internet users are increasingly being used in sophisticated ways to manipulate them based on that information. This represents a new trend in the exploitation of data, where instead of pursuing direct financial gain based on the face value of the data, actors are seeking to engage in data analytics using advanced artificial intelligence technologies that would allow them to more easily access individuals’ cognition and future behavior. Although in recent years the concept of online manipulation has received some academic and policy attention, the desirable relationship between the data-breach law and online manipulation is not yet well-appreciated. In other words, regulators and courts are yet to realize the power of existing legal mechanisms pertaining to data breaches in mitigating the harm of online manipulation. This Article provides an account of this relationship, by looking at online manipulation achieved through psychographic profiling. It submits that the volume, efficacy, and sophistication of present online manipulation techniques pose a considerable and immediate danger to autonomy, privacy, and democracy. Internet actors, political entities, and foreign adversaries fastidiously study the personality traits and vulnerabilities of potential voters and, increasingly, target each such voter with an individually tailored stream of information or misinformation with the intent of exploiting the weaknesses of these individuals. While new norms and regulations will have to be enacted at a certain point to address the problem of manipulation, data-breach law could provide a much-needed backdrop for the challenges presented by online manipulation, while alleviating the sense of lawlessness engulfing current misuses of personal and nonpersonal data. At the heart of this Article is the inquiry of data-breach law’s ability to recognize the full breadth of potential misuse of breached personal information, which today includes manipulation for political purposes. At present, data-breach jurisprudence does very little to recognize its evolving role in regulating misuses of personal information by unauthorized parties. It is a jurisprudence that is partially based on a narrow approach that seeks to remedy materialized harm in the context of identity theft or fraud. This approach contravenes the purpose of data-breach law – to protect individuals from the externalities of certain cyber risks by bridging informational asymmetries between corporations and consumers. This Article develops the theoretical connection between data-breach law and online manipulation, providing for a meaningful regulatory solution that is not currently used to its full extent.
Freedom to Hack, Forthcoming Ohio State Law Journal (2019).