Take Five

Five Questions with Nancy Kim

Nancy Kim is a professor of law at Chicago-Kent College of Law and the Michael Paul Galvin Chair in Entrepreneurship and Applied Legal Technology. Her research focuses on consent, contracts, privacy, and the effect of technology on society.

What was the inflection point where it became apparent that our online world would be a sort of “wild west” in terms of regulation?
A: It started off [as] the wild west, and there was a lot of idealism that surrounded the idea of an unregulated internet. In that environment, Congress passed Section 230 [part of the Communications Decency Act], which attempted to balance the ideals of the free internet—the free flow of information, greater communication—with the realities of what was being posted online, which even then wasn’t always truthful and was often harmful and cruel. Unfortunately, I think the courts interpreted Section 230 too broadly so that it became a way for companies to avoid liability for any content posted by third parties.
What, in your opinion, has been the most troubling issue that’s popped up as technology continues to take a bigger and more substantive role in our lives and society?
A: I like to make a distinction between technology and “big tech,” or social media and the internet, because technology is wonderful. The general term “technology” means more than social media; it also captures advances in medicine, in energy, and so much more, and so technology in general is positive, progressive, and benefits society. As far as social media companies, however, it’s a different story. Social media companies are essentially marketing and advertising companies, and this has affected both the type of content available and the audiences for that content.
As a consumer, you no doubt see many “I agree” consent buttons online. But as an attorney, what goes through your mind when you see those buttons?
A: It’s hard to separate the two. I’m a consumer, but I’m also an attorney and a scholar looking particularly at the issue of how terms of service affect society. It does register with me. That’s different from the way I might think if I hadn’t been studying online terms of service, in which case I’d probably ignore them. Often, I do quickly click on the link to check to see if there’s anything odd about the terms.
What are a couple of steps that someone can take to better educate themselves when engaging online?
A: Assume the worst. That sounds awful but seriously, the terms probably are the worst possible for you. They’re not there to protect you, they’re there to protect the company. Most of the time, the law, by default, protects consumers, but the company imposes terms of service, which take those protections away.
Technology can provide great benefit to us, but there are loopholes that can be taken advantage of. What are the steps we can take to create more good stewards of technology?
A: The #1 thing that we should remember that we too often forget is that technology serves us, or should anyway. It’s a tool for us human beings to use. Technology should benefit humanity—and often it does, like with the mRNA technology that saved a lot of lives. Unfortunately, the subset of companies that the media refers to as “tech” companies doesn’t always serve us or society, and that’s because their business model is one where humans are merely “data” that they monetize and commodify.