The Facebook Supreme Court

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Photo by Pixabay on Pexels.com

Yesterday Facebook officially launched its Oversight Board, an independent body that will make decisions about what can and cannot be posted on Facebook and hear appeals from people whose posts have been taken down. It’s been compared to the Supreme Court, the top appeals court in the United States justice labyrinth.

Like the Supreme Court, Facebook says the Oversight Board will create precedent, meaning earlier decisions will be used to shape later ones, so they aren’t reinventing the wheel every time. Also like the Supreme Court, the Board will try to come to consensus, but when everyone can’t agree, the majority will make the decision and those who dissent can include their reasons in the final decision.

Unlike the Supreme Court though, the Oversight Board’s members won’t be nominated by the president…I mean CEO, Mark Zuckerberg. He’s only appointing the two co-chairs, and it will be up to them to choose the rest of the 11-person board (it will get bigger as time goes on, according to the charter).

According to Facebook:

The purpose of the board is to protect free expression by making principled, independent decisions about important pieces of content and by issuing policy advisory opinions on Facebook’s content policies.

How will they choose what pieces of content are “important” enough to get an official ruling? The process is laid out in a post in Facebook’s newsroom. Cases referred to the Board will be those that involve “real-world impact, in terms of severity, scale and relevance to public discourse,” and that are “disputed, the decision is uncertain and/or the values involved are competing.”

I’m spitballing here, but my guess is that means it woouldn’t include your aunt posting confederate flag memes to her 12 followers, but it might include a politician who posts the same to their thousands of followers. My guess is that other cases will include things like body positivity posts that have been reported and taken down, like this one on Instagram (which is owned by Facebook).

In a blog post introducing the Board, Zuckerberg said it will start with “a small number of cases,” and admitted there’s still a lot of work to be done before it’s operational. I couldn’t find a method of actually submitting a case, for example.

The big question I ask myself when I see things like this: Do I think it is an empathetic use of technology? Do I think it shows an understanding of – and compassion for – users’ experiences and concerns? And do I think it will encourage users to be more empathetic themselves?

In some ways yes; almost; and maybe.

I do not think Zuckerberg ever expected to be tasked with arbitrating free speech on the internet. But he’s here now, and he’s getting a lot of pressure from politicians of all stripes to do something about harassment, privacy violations, and alleged censorship. Not to mention the fact that some lawmakers (and constituents, and former Facebook employees) want to break up the company’s ostensible monopoly on social media discourse. It’s all eyes on Zuck. His response to the free speech stuff has long been that it’s not his job to make those decisions. He has said he wants governments to make it clearer what’s okay to post online and what’s not. But by virtue of global politics and Facebook’s size and influence, the company is already making these decisions every day whether he likes it or not.

So I think a Supreme Court-style Oversight Board that can make binding decisions he cannot veto is smart. I think it could assuage some of his critics and make certain people feel more comfortable using the platform. I think it’s more self-preservation than empathy, but I think the effect could be an empathetic one if all goes well. But I also think it’s a HUGE undertaking that could go sideways pretty easily.

An internet appeals court is a real, tangible thing Facebook can give us, and it can have real, tangible results – controversial though they will be. Assurance that we won’t be manipulated by Macedonian trolls or bullied by classmates, or that we can post about our lives and ideas without unwittingly entering the thunderdome, is a lot harder to give.

What I’ve been up to

It’s been a little quiet around here because I’ve been working on some big things at the magazine that I’d like to share. First, something I can’t really take credit for: our redesign. This nearly 50-year-old magazine has a brand new look, both online and in print, and I have to say I’m pretty proud to be associated with it.

Second, something I can take some credit for: this story about the global macro strategy that had many hedge funds struggling over the last few years, but is now making a comeback. Reporting and writing (and rewriting) this was a huge learning experience, and I’m really proud of the final result. (It’s behind a paywall, but you should be able to sign up for a free trial if you’re interested in reading it.)

And finally, the fruits of a quick and exciting trip down to D.C. to visit the Supreme Court. This story (which is not behind a paywall) is about a 401(k) fee suit before the court that, while it sounds boring, might actually be really interesting to you if you are invested in a 401(k) yourself. An interesting precedent regarding when and how plan sponsors must review the funds in which they’re invested could be set here, depending on what the justices decide to do.

I’ve also been following some interesting health stories, rolling my eyes at wedding planning websites (and voraciously reading some of them…) and, of course, grumbling about feminism. I’ll get back to blogging about those things soon!

Facebook and the first amendment

Looks like I’m not the only one trying to figure out how and why things happen on Facebook. The U.S. Supreme Court is paying a lot of attention to the social network right now, but the stakes are a little higher than my “can I be calmer and happier without it” experiment. SCOTUS is in the middle of hearing a case that centers on whether and when a Facebook rant morphs from obnoxious but First Amendment-abiding screed to illegal threat.

In Elonis v. United Statesthe government argues that if a “reasonable person” would interpret a Facebook post as a threat, the poster should be subject to a criminal conviction. The lawyer for the man whose Facebook posts are at issue in this case, however, argues that the authorities should have to prove that the poster intended his or her words to be taken as a threat.

After oral argument on Monday, observers said the biggest stumbling block seemed to be finding a legal standard of proof. The problem arises from the court’s reading of the relevant law. The law says threatening someone is illegal, but the court has determined that this only applies to “true threats.” But it isn’t completely sure what it means by that…

Once that, and the definition of a “reasonable person,” get sorted out, it’s clear that the implications could be widespread. In this case, a Pennsylvania man named Anthony Elonis posted notoriously violent Eminem lyrics on his Facebook page, directing them at his estranged wife. His lawyers say posting rap lyrics is clearly for entertainment purposes only, but his wife and law enforcement officials felt differently. Elonis didn’t soak his wife’s body in blood from “all the little cuts,” as the lyrics suggested he might. Would he have done it if the police weren’t called? What was his actual intent? Is it possible to know? And is it possible to know how many actual violent crimes have been committed after similar social media posts? Eliot Rodger left behind some frightening tweets and YouTube videos, and many people questioned whether stricter and more clear guidelines surrounding online threats might have prevented his rampage.

Though confusion abounds, Justice Scalia did suggest on Monday that he might be leaning more toward the government’s side in this case.

“This sounds like a road map for threatening a spouse and getting away with it,” he said during the hearing, according to CNN.

So, if you’re still on that soul-sucking site, be careful what you post. (And, of course, it’s generally good practice not to threaten people anywhere, online or off!)