Opinion Facebook’s Made-Up Court Is Better Than No Court at All
Apple's privacy battle with Facebook just became all-out war
Tim Cook and Mark Zuckerberg's relationship status has changed to enemies.But there is one area where they cross paths, and now are crossing swords: the privacy of the people who use their products. And it's led to bitter words between their top execs.
No one has set any clear standard about how badly a politician can break Facebook’s rules before getting kicked off the platform, and yesterday the company’s wannabe court missed a chance to fill the void. In a decision anticipated with the fervor that might attend a high-profile Supreme Court ruling, the Facebook oversight boardthat, while it might have been right to ban then-President Donald Trump on January 7 for his role in stoking the Capitol riot and the risk of continuing violence, the ongoing “indefinite” nature of the ban is not justified. It gave Facebook six months to go back to the drawing board and work out what to do with Trump’s account now.
EXPLAINER: Will Donald Trump return to Facebook?
Former President Donald Trump will find out whether he gets to return to Facebook on Wednesday, when the social network’s quasi-independent Oversight Board plans to announce its ruling in the high-profile case. The decision likely to stir up strong feelings no matter which way it goes. If the board rules in Trump's favor, Facebook has 30 days to reinstate his account. If it upholds Facebook’s decision, Trump will remain “indefinitely suspended.” That means he’ll remain banned from the platform for as long as Facebook sees fit. Here’s how the process works and what might happen after Wednesday’s announcement.
But this is the exact question Facebook had asked the board to settle. The board respectfully declined. In fact, the board’s decision resolved essentially nothing—except that Facebook wasn’t exactly wrong on January 7—and leaves open the possibility that this whole charade will happen again before the year is out.
The oversight board is a weird creature. It has no mandate beyond that which Facebook deigns to give it. Its decisions arguably affect free speech, but not in the legal sense, because they implicate only a single private social-media platform. The board is like a moot court in a state without real courts, or a model United Nations in a world with no United Nations. And yet the oversight board was the only public-facing deliberative body contemplating what Ben Smith of The New York Times described as “.”
Donald Trump Will Not Be Allowed Back on Facebook Yet—But a Bigger Showdown Is Coming
The decision by Facebook's handpicked Oversight Board opens the door for Trump to return to social mediaFacebook banned Trump indefinitely following his Jan. 6 incitement of supporters to storm the U.S. Capitol building as lawmakers voted to finalize the results of the 2020 U.S. election, which he lost.
Writing speech rules is hard. Offline justice systems have been struggling with it for centuries. At best, the board can come up with better policies than Facebook CEO Mark Zuckerberg can. At worst, it can still provide a check on Facebook’s power over what you or I—or even the president of the United States—can say in a very important corner of the online world. Zuckerberg alone decides is a terrible way to determine what should be allowed on a communication medium used by.
This is where the board comes in. Even if Congress could bridge the cavernous divide between Democrats’ and Republicans’ views on content moderation, the First Amendment would stand in the way of lawmakers coming anywhere near these kinds of decisions. Other countries are not constrained by the U.S. Constitution, but almost all democracies have significant qualms about governments making granular decisions about what people are allowed to say. Even if governments made such rules, the sheer scale and speed at which content moderation happens makes such an idea practically impossible. And so most of Facebook’s speech rules will always be settled by private, not public, power. In this world, even a moot court in which an essentially random group of people play judges is better than no court at all.
Facebook Refused to Give Evidence About Role Site Played in Capitol Riot, Oversight Board Says
Facebook refused to answer questions for many reasons, including "information was not reasonably required for decision-making" of the Oversight Board.The social media giant refused to answer seven of the 46 questions the board asked the company, and partially declined to answer two of them.
The people whom Facebook tapped for its board are precisely the kind you’d imagine on a supreme council of elders: retired judges, a Nobel Prize winner, a former prime minister of Denmark, a former editor in chief of The Guardian, human-rights advocates, and lots of lawyers. They, and their press road show this week suggests .
Members are still trying to make sense of their role. Facebook is typically responsive to pressure from only a small slice of Western media. The board is a global body, and in some decisions leaps at the opportunity to criticize Facebook’s failures overseas. Just last week, the boardabout a post in India that was critical of Prime Minister Narendra Modi and his party. It drew attention to Facebook’s mistaken removal of the post and urged Facebook to make changes to stop such mistakes from happening again. Given the current political and public-health crisis in India, protecting political speech criticizing the government is an urgent responsibility. In that case, the board stepped up.
The Problem Is Facebook
Facebook’s “Supreme Court” might have upheld Donald Trump’s suspension, but that doesn’t make it a real court.For now, Trump’s suspension stays in place. But the board has given Facebook six months to “reexamine the arbitrary penalty it imposed on January 7 and decide the appropriate penalty.” No hiding behind the judgment of outsiders when Republican politicians complain about “anti-conservative bias,” or when other world leaders such as German Chancellor Angela Merkel worry about the precedent of a corporation pulling the plug on an elected politician—Facebook will have to tell us what its own red lines are.
But it was far too modest in the Trump case. Writing the rules is Facebook’s job, the board’s members concluded, and the board will merely callon whether those rules are consistent with Facebook’s own values and the board’s interpretation of international human-rights law. The board made a strategic, perhaps even Solomonic, judgment to uphold Facebook’s initial decision but also not give its stamp of approval to kicking Trump off the platform forever. The board dinged Facebook for making a “vague, standardless” decision—but then sent the controversy back to Facebook with a pretty vague and standardless set of instructions.
In doing so, the board passed up an opportunity to lay down specific principles for making decisions that currently are unconstrained. This should be one of the board’s superpowers: Precisely because it is not a government body, it can offer guidance that governments cannot.
The oversight board’s deliberations were convincing enough, apparently, that the conservative commentator Charlie Kirkthat the U.S. Supreme Court should take up Trump’s case and overturn the board. But to many critics, the Trump decision confirms that the board is just an exercise in —the professional-wrestling conceit of people agreeing to take seriously something that is obviously fake. And the media outlets that earnestly cover the charade, the who wrote submissions to the board about the case, the Trump representatives who submitted a user statement to the board, and the commentators, including me, who waste time as if they are more than just blog posts are helping legitimate Facebook’s sham justice system.
Facebook's oversight board made the right call on Trump. Now it's Zuckerberg's turn
Commentary: The social media company's inconsistent approach to its policies created an untenable situation. The oversight board is pushing for a fix.The 20 members of the quasi-independent board, experts in free expression, human rights and journalism, agreed that the threat of imminent harm required a temporary silencing of the world's most powerful and influential person.
Of course Facebook set up the board not out of altruism but because Zuckerberg thinks it benefits the company. Of course he wants to attract attention to the board. And of course we shouldn’t forgetin which Facebook still needs to expand the board’s remit to make its oversight meaningful. Many of the most important problems with Facebook, such as , its ad-targeting practices, and its data collection, are all beyond what the board can review.
But none of this changes the fact that the board exists and is making decisions with real consequences. And while conservative outrage over the board’s decision this week is comical, the idea that Facebook should have clear standards isn’t. No one suggests that the board makes other regulatory measures unnecessary. No lawmaker has found or will find such an argument persuasive. By all means, break Facebook up! Fine it! Yell at its executives in the halls of Congress! Still, Facebook will persist, and the board can help constrain it. This is not an either-or proposition.
The oversight board is indeed a PR exercise. And its benefit is precisely that it happens in public, and not inside the black box of Facebook. At this point, democratic institutions aren’t solving the problems that Facebook creates. So the board is the worst option except for all the rest. If only the board’s members really grasped the opportunity they’ve been given.
Facebook wanted its $130 million 'Supreme Court' to solve its policy enforcement problems. The board's decision to punt on Trump's ban shows how the initiative has backfired. .
Since the group refused to rule on Trump's suspension duration, Facebook finds itself back where it started: tasked with solving its own problems. It's on Facebook to solve its long-standing content moderation dilemmasFacebook's Oversight Board may have launched recently, but the reason for its inception stretches far back.Facebook, like other tech platforms, has historically taken a hands-off approach in judging if content should be taken down on its site, which is used by about two billion people worldwide. As CEO Mark Zuckerberg has said, the company does not want to be "the arbiter of truth.