How to make Big Tech pay…literally

A lifetime ago, I worked as a federal affairs manager at the center-right organization Americans for Tax Reform. My area of focus was technology policy, advocating for as much of a hands-off approach as possible by opposing net neutrality, and supporting online privacy and personal data protection. 

It wasn’t the most exciting job in the world, but I believe it was important and still is. I may not work in that arena anymore, but I still follow the issues because today, everyone has to. When it comes to the digital world, the fight for freedom and privacy is never-ending, and all the concepts are just as important today as they were in 2007 

Those “free” apps, websites and services everyone loves are never actually free. Online, if you are not the paying customer, you are the product. Those apps are fishing nets for data — your data. That data is then refined into gold for the companies that collect it. 

They know what you want almost before you do, tailoring ads based on algorithms and now artificial intelligence to bring you advertisements for things you didn’t even know you need or want. And they’re very good at it — there’s a reason the number of billionaires in the United States went from 359 in 2009 to 614 in 2020, and it wasn’t because so many of them respect the privacy of the public. 

If you’re like me, you try to mess with the system as much as you can; a lame rebellious swipe at the system that ultimately means so little it means nothing at all. My birth year on Facebook, for example, is 1911. I’m no teenager, but I am not 112…at least not yet. I tend to list my location as Earth, and keep my employment and education history to myself. I may be the product, but I’m not going to give them a lot to sell me with. A moral victory, at best, but I’ll take it, if only so I can lie to myself about beating the system a little.

Being the product brings with it an ever-increasing attempt to get more information from you, which creates a never-ending kabuki dance between Big Tech companies and the public. One thing the internet pioneered was the endlessly long, overly lawyered, confusing and always changing user agreements. When was the last time you read one of those? If you’re like me, it’s never. 

But those user agreements have led to an interesting story I’ve been following for a while now out of Illinois. 

There is no user agreement that does not favor the company that wrote it, it’s just a universal truth. And not reading it isn’t going to help you should an issue arise. However, in Illinois someone actually did read the user agreement with Samsung and found a way to use it against the company. 

Samsung was accused by users in Illinois of collecting and misusing consumer’s biometric data – fingerprints, facial recognition, etc. — without properly informing them. The tech giant’s user agreement, like almost all of them do, required arbitration rather than a lawsuit. Companies hate lawsuits, especially class action lawsuits, which could easily result from allegations of violations of user agreements. 

Class-action suits have serious drawbacks. I’ve been an unwilling party to a few of them, as you likely have, too. I didn’t even know I’d been “wronged,” and it’s irritating to discover that the “righting” of whatever wrong there was involves lawyers getting rich and me getting lousy coupons for future purchases from the company that has supposedly wronged me. The lawyers never get paid in coupons.

That being said, sometimes class actions are necessary when enough people have been seriously wronged. Samsung protected itself against that with their user agreement. Creatively, users found a way to make the company pay: mass arbitration. Not mass-arbitration in the sense that there is a large class of people demanding a single arbitration, but because they are bringing tens of thousands of arbitration cases. 

Companies tend to prefer arbitration to lawsuits, but arbitration also costs money. The prospect of tens of millions in fees to cover arbitration hearings presents a mighty incentive for Samsung or any other company to reevaluate its policies, don’t you think?

Naturally, Samsung is now seeking to change the rules in their favor again. Because 50,000 customers making arbitration claims is going to leave a mark on their bottom line. I don’t know what is ultimately best for consumers and for privacy, aside from massive tech companies not violating our privacy in the first place. But I do enjoy boat-rocking, and I know that a good check against their abuses would be to use their own ever-changing, massive, lawyerly user agreements against them. 

The next step would be honesty and transparency, but that will likely have to wait until tech giants are really made to hurt. 

Derek Hunter is host of the Derek Hunter Podcast and a former staffer for the late Sen. Conrad Burns (R-Mont.).