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Brief #46 Technology Policy 

Facebooks Oversight Board Upholds Trump Ban but Criticizes Indefinite Punishment

By Scout Burchill 

May 14, 2021

Summary:

On Wednesday, May 5th, Facebook’s Oversight Board issued its much anticipated ruling on the social media platform’s indefinite ban of former President Donald Trump for his posts following the January 6th riots at the Capitol. After a week-long delay due to over 9,000 public comments on the case, the Oversight Board decided to uphold Facebook’s initial decision to suspend Trump.

However, in the nearly 12,000 word ruling, the Board made absolutely clear that the indefinite suspension is “not appropriate” as it constitutes an “indeterminate and standardless penalty.” On this issue, the Board did not mince words in reprimanding Facebook’s arbitrary punishment. The Board wrote, “in applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities.”

The decision still leaves many of the larger questions surrounding the case unanswered. On the crucial question of whether or not Trump will be able to return to the platform the Board punted, kicking the question back to Facebook policy makers by recommending a six month re-examination of its policies. In effect, the ball has moved from Facebook’s controversial ‘Supreme Court’ back to their boardroom, once again leaving people guessing. For a good in-depth look at the powers and controversies of Facebook’s recently established Oversight Board, be sure to check out Technology Brief #39. 

Analysis:

The first major test of Facebook’s self described Supreme Court did not produce a flurry of explosive, attention grabbing headlines. Instead, the case decision laid out a relatively honest assessment of the well-documented problems of Big Tech’s content moderation policies and demonstrated the limitations of the Oversight Board’s authority to act as a proper check on Facebook’s immense power.

On the issue of upholding Facebook’s decision to suspend former President Trump for his two posts on January 6th, the Board ruled that the original decision was justified based on Facebook’s Community Standards. In a half-hearted attempt to quell the violence as it was raging at the Capitol, Trump posted a short video and a message addressing the rioters in which he praised them for their passion and actions and told them to go home. According to the ruling, Trump’s messages violated Facebook’s Community Standards by praising and supporting people engaged in violence. The Board specifically honed in on the phrases “We love you. You’re very special” in Trump’s first message and “great patriots” and “remember this day forever” in the second message. While this part of the case is pretty cut and dry, the real heart of the ruling lies in the Board’s assessment of the indefinite nature of the suspension.

The Board rightly rebuked Facebook for the arbitrary and ad-hoc nature of Trump’s indefinite suspension. In short, because there is no official Facebook policy or guidelines that permit Facebook to suspend an account indefinitely with no clear criteria or procedure outlining how that suspended user can return to the platform, the suspension constitutes an arbitrary abuse of power. Referring to the standards set by international law, the Board points out that clear and accessible rules need to be in place for speech and expression to be restricted in a legitimate manner. This observation echoes many previously articulated critiques of Big Tech’s content moderation powers. The arbitrariness and ad-hoc manner of these companies’ moderation decisions poses a real threat to creators, small businesses, the freedom of expression, and especially political speech.

Unfortunately, no matter how well articulated the Board’s condemnation of Facebook’s half-baked policies may be, they have no authority to actually change the company’s policies. In this respect, it is clear that the Oversight Board poses no threat to Facebook’s actual power, a topic explored in depth in Technology Brief #39. This case demonstrates just how much of a sham the Oversight Board is as an effective entity of regulatory oversight. At the end of the day, it’s hard not to see the Board as merely an extension of the boardroom. While the recommendations and critiques it offers may be insightful, it has no real sway in influencing the systemic problems arising from Facebook’s business model and policies.

Despite this, the Board raises two particularly salient points that Big Tech critics have been trumpeting for years. Firstly, they problematize Facebook’s notoriously vague ‘newsworthiness’ criteria, which allows politicians and other powerful people to routinely break the platform’s Community Standards without penalty. The newsworthiness policy was first established during 2016 presidential campaign and protects content from removal if it is deemed “newsworthy, significant, or important to the public interest.” At the time, media outlets were grappling with how to report on the infamous Access Hollywood tape. However, the utter lack of transparency for deciding what makes something newsworthy or significant presents a major built-in inconsistency in Facebook’s policies. In other words, why should your neighbor be held to higher standards, and silenced for far lesser offenses, than our elected officials and leaders? Ultimately, these decisions smack of greedy profit-driven calculations and betray a willingness to always serve the interests of the powerful.

Secondly, the Board acknowledged that Facebook “has become a virtually indispensable medium for political discourse and especially so in election periods.” While this is practically common knowledge, by saying the quiet part out loud, the Board sets up an interesting problem for Facebook. If Trump is the 2024 Republican nominee, how will Facebook possibly defend banning him from the platform? In effect, Facebook would have to justify meddling in elections in a way foreign adversaries could only dream of. Back in 2017, Brad Parschale, the digital media brain behind Trump’s 2016 campaign said, “Facebook was how Donald Trump was going to win…Facebook was the method – it was the highway which his car drove on.” In modern campaigning, Facebook is an essential part of most politicians’ fundraising and organizing infrastructures, and this is especially true of Donald Trump and other outsiders from both sides of the political spectrum.

While the Oversight Board provides a useful distraction and the facade of corporate accountability, the fate of Donald Trump’s Facebook account ultimately rests where it always has, in the hands of Mark Zuckerberg. Once again, on one of the most significant political issues of the era, the public is left in limbo, awaiting the decrees of a tech billionaire.

 

Engagement Resources:

The Real Facebook Oversight Board

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

Accountable Tech

https://accountabletech.org/

American Economic Liberties Project

https://www.economicliberties.us/big-tech-monopolies/

Center for Humane Technology

https://www.humanetech.com/

Tech Transparency Project

https://www.techtransparencyproject.org/

Sources:

The Oversight Board’s Case Decision:

https://oversightboard.com/decision/FB-691QAMHJ/

Politico on Trump’s Facebook Ban and the Importance of Facebook

https://www.politico.com/news/magazine/2021/05/05/trump-social-media-supporters-485381

Columbia Journalism Review on Newsworthiness

https://www.cjr.org/the_new_gatekeepers/facebook-oversight-board-2.php

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