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Technology Brief #39

Facebook’s Supreme Court: A New Model For Online Governance?

February 28, 2021

 By Scout Burchill

Summary:

A new experiment in online moderation governance has been taking shape at Facebook over the past two years and its most consequential test is fast approaching. By the end of April Facebook’s Supreme Court, officially called the Oversight Board, will declare a ruling on the company’s permanent ban of Donald Trump from the platform.

Facebook’s Oversight Board was first conceived of in 2018 as an independent quasi-legal governing body that would advise Facebook on its content moderation policies and litigate appeals of users over content moderation enforcements. In the years since, Facebook has invested considerably in developing the operational procedures, powers and composition of the Board. The Board abides by an official public charter and currently consists of 20 members from various areas of expertise as well as diverse backgrounds. By design, the Oversight Board only has the authority to review user appeals that involve ‘take-downs’ of content and can rule to either uphold or overrule them. The Board is indirectly funded by Facebook through a trust to the tune of around $130 million.

Since the Board began officially accepting cases in October 2020, it has already received over 180,000 appeals. The Board itself is responsible for deciding which cases to take on. The inaugural docket was published on December 3rd, 2021 and of the 7 cases taken up so far, the Board overruled Facebook’s moderation decisions on 5 of them, upheld 1 of them and was unable to make a ruling on the 7th because the content was removed by the user. The next docket will include a ruling on Trump’s posts and suspension following the January 6th Capitol Riots.

 

Analysis:

Facebook’s Oversight Board is a highly controversial experiment in private governance and self-regulation that could pave the way for future models of online governance. The simple fact that Facebook has gone ahead and created its own quasi-legal framework and corporate tribunals is a testament to both the enormous power and reach of the company as well as the utter lack of institutionalized regulatory models for dealing with content moderation policies and speech in the digital sphere. The Trump case will most likely be the defining moment of this nascent institution.

The biggest challenge of any budding governance model is its ability to garner legitimacy in the opinion of the public. Facebook has been working for over two years to construct the Oversight Board and has put in considerable effort to convince the public that this body is a legitimate, independent and transparent entity that will provide accountability for the company’s policies as well as an option for recourse for perceived wrongs. The Oversight Board’s charter laying out the governance framework of how the Board operates is publicly available on the Board’s website (link attached below) and is incredibly accessible. Of particular note is the explicit and purposeful choice of the word “people” instead of “Facebook users” throughout the charter, signaling just how grand and ambitious the company’s vision of the Oversight Board truly is.

In essence, the Board is the ideological fusion of constitutionalism and corporatism. Similar to the Supreme Court, the Board is designed to act as a check on the power of specific content moderation decisions of the company. It has the discretion to accept or reject which cases to review (with some caveats described later). The analogy only goes so far though. As of now, one important way in which it differs from a Supreme Court is that it evaluates each case individually and its rulings do not necessarily set precedents or changes in policy.

The identities of the Board members are publicly available on the Board’s website. They can serve up to three three-year terms. Facebook and the public can recommend Board members, but ultimately trustees appoint the members. The Board reviews and decides on cases in accordance with Facebook’s own content policies and values, so it doesn’t necessarily have free reign to make its own standards. To stretch the Supreme Court analogy a bit further, debates between textualism and contextualism are sure to define many the Board’s rulings and interpretations in cases to come. Finally, the Board’s rulings on individual content decisions are binding for Facebook and for each ruling, the Board must publicly publish its decisions and arguments.

There are certainly reasons to see this approach as a positive development for dealing with controversies over content moderation policies, especially in light of all the controversial and seemingly ad-hoc content moderation decisions that have been made over the years. However, as with most tech issues, the Oversight Board has its fair share of naysayers and skeptics. Critics of the Oversight Board view the corporate tribunal as a sham and a public relations tool at best, rather than a legitimate court of recourse.

Perhaps the most controversial topic is the independence of the Oversight Board. If Facebook cannot convince the public that the Board is indeed impartial and independent then its future will surely be doomed. Besides the fact that the Board is Facebook’s own creation, critics also suggest that financial incentives may dissuade members of the Board from being too tough on Facebook. According to reports, the current 20 members are paid six-figure salaries for around 15 hours of work a week.

While the initial rulings of the Board do seem to suggest that it is willing to overrule Facebook’s own moderation enforcement decisions, the actual power of the Board to influence Facebook’s policies is extremely limited. Since the Board’s inception, this has been one of the most controversial topics from both within and without the company. The Board has no authority to rule on content that has not been removed. This means that the Board has no say on divisive or incendiary content like hate speech, disinformation and conspiracy theories that remain up on the site. Furthermore, the Board can only issue guidance or advisory opinions when it comes to the actual workings of the company’s algorithmic policies and operational procedures. Issues such as political advertising, algorithmic incentives and the deplatforming of users and groups can only be considered at the direct behest of Facebook, and even then, the Board’s arguments are not binding. This will effectively curb the Board’s ability to make any decisions that might run counter to Facebook’s business model.

Critics also claim that the Oversight Board is a mere mirage to stave off stricter regulations against the company and divert outrage over controversial and politically fraught decisions. In other words, it’s a convenient, pseudo-independent arm of the company wherein the moral implications of Facebook’s business model and societal harms can be offloaded and then lavishly presented as accountability. Accountable Tech, an independent organization, as well as another independent collective of activists and academics called the Real Facebook Oversight Board are among the most outspoken critics of Facebook’s Oversight Board.

A recent conversation between the Carnegie Endowment and Oversight Board co-chair, former Prime Minister of Denmark, Helle Thorning-Schmidt revealed that the Board’s vision for the future is to go even bigger. Thorning-Schmidt suggested that if the Board proves to be an authoritative and legitimate body, other platforms and tech companies may opt in, forming a sort of super tribunal. It is amazing to consider the fact that if this experiment proves to be a success, Facebook’s Oversight Board may end up presiding over one of the largest jurisdictions of any legal system in the world. Speech norms differ widely across the globe, and humor especially varies from culture to culture, so one court to rule them all may ultimately prove unfeasible and easily corrupted by corporate and political interests.

All this background points to the importance of the upcoming Trump decision. Facebook has invested considerable amounts of money and time into making its Oversight Board a legitimate body of governance and accountability. If anything, legitimacy and trust are built over time and it would have made sense for the Oversight Board to steer clear of particularly polarizing and politicized rulings. But after the events of January 6th and the suspension of the sitting president, this position has become untenable. Not ruling on this case would deal a severe blow to the legitimacy of the institution right as it is getting off the ground. Currently, the Oversight Board is accepting feedback from the public on the Trump case. You can submit your very own ‘amicus brief’ to the court via the Oversight Board’s website. Reportedly, Trump personally called Mark Zuckerberg to express his opposition to the composition of the current Board and has even submitted his own appeal, which will be considered in the ruling.

The importance of the Oversight Board’s ruling on the Trump case cannot be overstated. Even though the Oversight Board is technically no Supreme Court, its ruling on the Trump case will reverberate just as resoundingly as a Supreme Court decision. There is a lot on the line not only for Facebook’s experiment in self-regulation, but also for future models of internet and social media governance.

Resistance Resources:

The Oversight Board’s Official Website

https://oversightboard.com/

The Real Facebook Oversight Board

https://the-citizens.com/real-facebook-oversight/

Accountable Tech Organization and their Report on the Oversight Board

https://accountabletech.org/

https://accountabletech.org/wp-content/uploads/2020/06/Move-Slow-and-Fake-Things.pd

Sources and Further Reading for the Curious

Insider Account of the Making of the Oversight Board

https://www.newyorker.com/tech/annals-of-technology/inside-the-making-of-facebooks-supreme-court?campaign_id=158&emc=edit_ot_20210217&instance_id=27210&nl=on-tech-with-shira-ovide&regi_id=146483158&segment_id=51823&te=1&user_id=0268b918a494e27b8df55bd0dda72407

New York Times Article on Trump Case

https://www.nytimes.com/2021/01/24/business/media/trump-facebook-oversight-board.html

Times Magazine on the Oversight Board

https://time.com/5934393/facebook-oversight-board-big-tech-future/

Oversight Board’s Comments on Expanding to Include Other Platforms

https://techcrunch.com/2021/02/11/facebook-oversight-board-other-social-networks-beyond-facebook/

Trump Submits Appeal to Oversight Board

https://www.businessinsider.com/trump-submitted-an-appeal-to-facebook-oversight-board-2021-2

The Formation of Real Facebook Oversight Board

https://www.newyorker.com/tech/annals-of-technology/the-ad-hoc-group-of-activists-and-academics-convening-a-real-facebook-oversight-board

Reputable Criticisms of Oversight Board

https://reason.com/volokh/2021/02/17/the-facebook-oversight-board/

https://time.com/5933989/facebook-oversight-regulating-social-media/

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