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Reforming Facebook: First, Do No Harm

Stephen Maurer, Adj. Em. Prof. of Public Policy | June 13, 2019

People say that America is a divided society, but there are at least two things we can agree on. First, that nobody likes Facebook’s ability to censor political speech. And second, that it would be incredible if Facebook’s leaders and employees, knowing that they hold such power, were not tempted to use it. From this standpoint, the only real controversy is what society can do to limit the company. Letting Facebook corrupt American politics is terrifying. Handing its power to federal regulators might be worse.

The libertarian urge is to eschew regulation entirely. Yet every mass shooting reminds us that speech should be responsible. The Web builds communities among people who would never otherwise meet, and a few of these conversations can incite “lone wolves” to kill people. The trouble is finding rules to codify this instinct. Facebook’s own rules seek to ban speech that is “violent” or “dehumanizing” or includes “statements of inferiority” against ten distinct groups, along with looser protections for “immigrants.” On the other hand, what do “dehumanizing” or a “statement of inferiority,” for example, actually mean? Facebook does not say. And in any case, the company reserves the right to grant exceptions when it detects benign “intent.”

The deeper problem is that no rule is any better than the people who enforce it. And Americans – especially including conservatives — have no particular reason to trust Facebook. This is especially true since nobody knows just how many, or even what types of documents, have already been suppressed.

There is a better way. For the past two centuries, Americans have resisted private power less by enlarging the state than by invoking Adam Smith’s “invisible hand.” In a truly competitive market, the argument runs, Facebook would have to choose between tolerating every view for which there was an appreciable audience or else losing its advertisers and closing up shop for good. Either way, private censorship would end. Conversely, if censorship does exist we should ask why markets have failed. Here the simplest and most obvious reason is transparency. Granted that Facebook’s rules are public, nobody can say whether it applies them fairly. If Congress with its subpoena powers cannot find out, what chance do ordinary consumers have?

Consider, then, the following reform legislation. Section One: Social media companies must keep copies of every page and post they suppress, along with a list of the in-house rule(s) it is said to violate. Section Two: Social media companies must make this information available to outside scrutiny. And that’s it. Of course, the access cannot be limitless – Otherwise, Congress would end up creating a “black museum” for fanatics and the mentally ill. But it can and should be broad enough to include legislators, government officials, journalists, business rivals, scholars, and other legitimate users. None of this would be hard to administer: Indeed, private terrorism databases have done the same thing for years.

The proposed statute would cost social media companies almost nothing to implement. This already satisfies Hippocrates’ maxim, “First, do not harm.” The only question is how much good it would do. At the very least, it would shine a light on Facebook’s activities. Ideally, Americans will discover that the company is the same conscientious, if sometimes flawed curator it claims to be. Then, after the controversy dies down, the database will become fodder for the academic journals. This is no bad thing: Facebook’s rules are concededly imperfect, and advice from legal scholars is bound to improve them. Indeed, American judges have relied on scholarly suggestions for decades.

Alternatively, suppose the skeptics are right and Facebook really is biased. Then transparency will give the company one last chance to reform. Will it take the hint? The usual objection that Facebook is an “oligopoly” is no answer. To the contrary: Companies that manage to cartelize prices frequently compete hard on other grounds, and especially over market share. More than that, Silicon Valley monopolists obsess constantly about being unseated. Will Facebook really cling to its biases when doing so hands rivals an obvious marketing weapon?
Finally, suppose Facebook still refuses to reform. Then the logical next step would be … more competition. Sen. Elizabeth Warren’s calls for breaking up the tech giants are very much in this vein. That said, the solution need not go so far. Instead, it would be enough to make Facebook’s “like,” “fan,” and “follower” categories interoperable so that rival platforms can use them too. Here the main dilemma is that Facebook’s market power is both a pathology and (through intellectual property law) an incentive for garage inventors to invent new products. A government buyout of Facebook’s IP is by far away the cleanest way to square this circle. If that expense seems daunting, the Justice Dept. (and Sen. Warren) may want to consider their antitrust options.

Forcing transparency in social media would cost little, and promises large improvements for on-line democracy. In the end, Americans might or might not be satisfied that it was a complete solution. Either way, a country that believes in markets should be willing to do the experiment.

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