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92 Geo. Wash. L. Rev. 305 (2024)
Unjust Enrichment by Algorithm

handle is hein.journals/gwlr92 and id is 341 raw text is: Unjust Enrichment by Algorithm Ayelet Gordon-Tapiero & Yotam Kaplan* ABSTRACT Social media platforms have become enormously powerful, accumulating wealth at an alarming rate and influencing public opinion with unprecedented efficiency. Platforms use algorithms that promote discriminatory, divisive, extreme, and false content. In recent years, content promoted by social media platforms fueled a series of calamities: the spread of disinformation during the COVID-19 pandemic, the January 6th insurrection, and the establishment of dangerous trends among adolescents and children. The platform crisis is here and is showing no signs of abating. Platform algorithms recommend divisive, hateful, and inflammatory content because such content encourages users to spend more time on the platform, allows platforms to collect more user data, and presents users with more advertisements, generating more revenue. Thus, the most socially harmful algorithms are the most profitable for platforms. This profitability is fueling the current crisis: as long as harmful algorithms remain the most profitable, new catastrophes are sure to come. This Article argues that any effective legal response to the platform crisis must address the immense profitability of harmful algorithms. These Authors further suggest that this type of legal response is possible through the doctrine of unjust enrichment. This proposal explains the conditions under which platform profits should be considered unjust, and how the doctrine of unjust enrichment allows courts to strip platforms of such ill-gotten gains. This Article breaks new ground in being the first to study the doctrine of unjust enrichment as a remedy to the platform crisis. Rather than prohibit a particular type of content or a spe- cific optimization metric, this proposal targets platforms' financial incentives, forcing them to consider the broad societal impact of their choices. This is a promising legal venue, offering tools that are unavailable through other frame- works. This Article further details the advantages of this proposal, explains its origins in existing doctrine of the law of unjust enrichment, and provides a rich account of its implementation in practice. * Ayelet Gordon-Tapiero is a Postdoctoral Research Fellow at Georgetown University, Initiative on Tech & Society. Yotam Kaplan is an Associate Professor at Bar-Ilan University Law School (BIU). For helpful discussions and insightful comments on earlier drafts, we wish to thank Talia Gillis, Katherine Glenn Bass, Katrina Ligett, Kobbi Nissim, Paul Ohm, Gideon Parcho- movsky, Ariel Porat, and participants in the BIU Law School Faculty Workshop. We are grateful to the European Research Council for generous financial support under grant 101077050. We also thank Shay Hay and David Jacobs for excellent research assistance. April 2024 Vol. 92 No. 2 305

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