‘Earth’s new governors’ could dictate by the Facebook
The social network is considering setting up a ‘supreme court’, which could change everything
Suppose that, 10 years from now, you make a post on a social network.
The post is removed by a moderator for violating the social network’s terms of service. You disagree and appeal the decision, not to Facebook itself but to an independent tribunal that sits outside the company’s normal power structure.
On the appointed day, you carefully select an appropriate outfit – serious, professional, but not finicky – and set up your webcam to make your case before the internet’s new judiciary.
This is not yet reality, but it may not be far off if an intriguing plan by Facebook to set up something very much like a court system to deal with how it polices its 2.3bn users’ activity comes to fruition.
Constitutional scholars, who might otherwise be studying the proper design of national legislatures, are paying attention.
If other tech giants were to copy the idea it would transform the online world for good.
When Mark Zuckerberg first proposed the notion of a “supreme court” for Facebook last March, it wasn’t clear how serious he was.
“I feel fundamentally uncomfortable with sitting here in California at an office, making content policy decisions for people around the world,” he said.
In November, though, Zuckerberg pledged to build it by 2020, and in January Facebook released a draft charter sketching out what it might look like.
What really made longtime observers of the company sit up and take notice – given its history of wielding its global power over its billions of users in opaque and seemingly arbitrary ways – was its promise to be bound by the decisions of the new body, and, if necessary, to be overruled by it.
The move was an unprecedented step and a recognition that Facebook is grappling with the power it exercises over the world’s information.
“We recognise that we don't have all the answers,” said Andy O’Connell, an algorithm policy manager at Facebook who is helping to set up the body.
“We are a company largely based in Silicon Valley, and while we endeavour to engage with diverse stakeholders when we're developing policy ... this is an important way to provide accountability and oversight through an independent mechanism.”
He says accepting and implementing the decisions of the court – now a somewhat less grandiose-sounding “Oversight Board” – is crucial to the whole exercise, though there is some ambiguity as to whether it will set precedents or just make one-off rulings.
As currently imagined, the board will have 40 members, drawn from many different disciplines and areas of the world in order to reflect a pool of users that stretches from Cleveland to Kolkata.
The first 40 will be chosen by Facebook. Thereafter new members will be appointed by the board itself.
They will serve up to two three-year terms, receiving compensation which shall not be diminished while they are in office, and be removable by Facebook only if they break the charter of their office.
None of them will be current or former Facebook employees, nor government officials. They shall consult experts and probably have a professional staff to work with. And they shall, from time to time, form odd-numbered panels from among their ranks to hear cases referred to them both by Facebook and by Facebook users.
This won’t involve actually setting Facebook’s rules, but only interpret them, and perhaps recommending changes if they are so moved.
In 10 years’ time, he hopes, the board’s work will mean that Facebook’s moderation decisions are better understood.
“I think a huge function of this body is going to be reason-giving, and publicly explaining the trade-offs and the considerations that go into these hard decisions,” he says.
Such a body is almost without precedent in the corporate world, according to Kate Klonick, a professor of law at St John’s University in New York, who has long called on Facebook to “bind itself to the mast” by adopting something like a constitution.
The fact that it is now doing so represents an epochal shift in which Facebook is finally recognising its responsibilities as, in her phrase, one of Earth’s “new governors”.
Once, perhaps, tech giants could get away with claiming to be private spaces, but Klonick argues most people now understand them as public bodies that exercise power over their right to free speech and their access to knowledge.
That has created a crisis of legitimacy and accountability. Currently, there is none.
“When [Facebook] get it wrong, it becomes a reputational liability for them,” she says. “By jettisoning these harder decisions, they have an opportunity to basically say: ‘Hey ... it’s not our fault, this oversight board is completely independent’.”
If that sounds cynical, Klonick is actually “cautiously optimistic” about the board, because it aligns Facebook’s more selfish interests with the interests of its users. Others are more sceptical.
K Sabeel Rahman, president of the US think tank Demos, sees the present moment as similar to points in history when parliaments were forced to restrain the power of kings and governments forced to restrain the power of corporate monopolies.
He suspects Facebook’s efforts at internal reform will fail because they do not change its deeper business model, which he claims inevitably generates problematic content in the course of trying to dominate users’ attention.
So what might the future look like if other Silicon Valley companies follow suit?
“If this proves successful for Facebook, and if users feel there is some kind of accountability and legitimacy gained, that’s something that will catch on,” says Thomas Kadri, a PhD student who works with Prof Klonick.
That would mean councils, courts and oversight boards not only at social media firms across the internet.
Look, he says, at Amazon: it suffers “a lot of the same gripes” from vendors across the world who grapple with arcane and opaque rules, their livelihoods depending on decisions they do not understand. It, too, is under increasing scrutiny for its vast power, which a constitution would help to legitimise.
The debate does raise the question of whether, as Rahman puts it, “Facebook should have that much power in the first place”.
To ask tech firms to wield their truncheons carefully and justly is to accept their self-appointed constable’s role. Kadri, though, believes that ship has sailed. “It’s scary to think of them as governors generally, but it’s much scarier to think about them as executive, legislature, judiciary and press all rolled into one,” he says.
“Whether or not we like to think about them in terms of governing roles, the reality is that that’s what they’re doing."
Rahman is not so sure. He urges governments and voters not to forget the tools of regulation and antitrust enforcement with which they previously subdued the monopolies and robber barons of the 19th century.
“There are familiar techniques for restraining unchecked power,” he says. “Facebook is offering up one technique, which is good. But the rest of us should be asking whether there are other techniques also needed.”
If Facebook wants to avoid that, it will need to convince the world that its board truly is independent and impartial. And since there is no actual constitution here, nor soldiers sworn to defend it, it could always go back on its promises.
What if one day it suspends the board entirely after a series of decisions it dislikes? Conversely, the board itself could become controversial, just as Twitter’s safety council has been in some quarters, if it is seen to create a new class of social media apparatchiks who impose their will on users.
That, perversely, might be what success looks like for Facebook.
Any normal judiciary creates debate; if the oversight board works properly, it should too. Indeed, victory for Zuckerberg may only truly be clear when and if he suffers a proper defeat – overruled, as rulers so often are, by his own troublesome judges.
– © The Daily Telegraph