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Facebook's oversight board comes into focus

June 27 · Issue #349 · View online
The Interface
Yesterday, Mark Zuckerberg made an appearance at the Aspen Ideas Festival. In keeping with the spirit of the event, Zuckerberg brought some ideas. The big ones:
Facebook was right not to remove the doctored video of House Speaker Nancy Pelosi. Zuckerberg said it should have been flagged as misleading more quickly, but defended leaving it up. (I basically agree with him on this one.)
“This is a topic that can be very easily politicized,” Zuckerberg said. “People who don’t like the way that something was cut…will kind of argue that…it did not reflect the true intent or was misinformation. But we exist in a society…where we value and cherish free expression.”
But Facebook will treat deepfakes differently than other forms of misinformation. Zuckerberg said that the company’s policy team is currently considering it: “There is a question of whether deepfakes are actually just a completely different category of thing from normal false statements overall, and I think there is a very good case that they are.”
Facebook can’t protect against election interference alone. Zuckerberg was rightly critical of the US government’s extremely weak response to Russian attacks leading up to the 2016 election, saying:
“One of the mistakes that I worry about is that after 2016 when the government didn’t take any kind of counteraction. The signal that was sent to the world was that “O.K. We’re open for business.” Countries can try to do this stuff and our companies will try their best to try to limit it, but fundamentally, there isn’t going to be a major recourse from the American government. "Since then, we’ve seen increased activity from Iran and other countries, and we are very engaged in ramping up the defenses.”
On Tuesday, some reports had suggested that Zuckerberg was going to unveil a surprise new “constitution” for Facebook. Instead, on Thursday the company released a report detailing the progress it is making in building an independent oversight board for review. The board is connected to Zuckerberg’s big ideas — this is the body that could someday make a binding, independent evaluation of whether a video like the Pelosi fake could stay up on the site.
Since proposing the idea last year, Facebook has held six workshops around the world, which included more than 650 people from 88 countries. Among other things, the company has been conducting a kind of mock trial — having participants debate what to do with particular pieces of controversial content, as part of the work of developing a fair process for the board to implement in the future.
The idea remains to build a board of 40 people who will make content review decisions in small panels. But all of the details are up for discussion, and you can read about the infinitely branching debates the company is now having in the report itself. It makes for a surprisingly brisk read — for one thing, it goes out of its way to find and cite examples of people calling the board a stupid idea. And it’s much more entertaining than this halting, uncertain conversation between Zuckerberg and two prominent law professors, which attempts to bring a sense of history to the conversation but mostly just magnifies the historical weirdness of absolutely everything under discussion.
Mostly, though, it’s just wild to watch a public company staging a miniature constitutional convention in 2019. The main problem is that almost anything is possible. To wit, from Facebook’s report today:
Facebook has suggested that Board members serve a fixed term of three years, renewable once. Other suggestions included varied term lengths; staggered appointments; and shorter term lengths, given the “rapid pace of change” in content and technology. However, while some felt that three years was too long, others felt it was not long enough. The latter believed that more time is necessary for members to become acquainted with their responsibilities, as well as the complexities of content governance.
Feedback was similarly split on the size of the Board. Facebook has suggested up to 40 members on the initial Board, which would be global in nature and organized to operate and decide on cases in panels. Some felt this number was too small and expressed concern over “docket management” and “caseloads.” Others, conversely, found the number to be unwieldy and unmanageable. Still others, on a more practical level, suggested that the Board include 41 members, in case a tiebreak would be required.
It goes on like this for 38 pages. (The appendices go on for another 177.)
Many important decisions appear to remain totally up in the air. For example, I assumed that one benefit of developing an independent oversight board would be to allow the board to create precedents — a kind of case law for future board cases to refer to. But according to the progress report, many participants have frowned on the idea of precedents at all:
Overall, feedback generally supported some sort of precedent-setting arrangement. Most expressed hope that the Oversight Board could support “some idea of … continuity, some idea of stare decisis” that could evaluate “multiple fact patterns and have some precedential weight.” Response from the public questionnaire suggested the same. The majority of respondents (66%) stated that “considering past decisions is extremely to quite important,” while almost a third (28%) consider past decisions as “somewhat important”.
Others felt that precedent would need “to be considered carefully, as … there will need to be overruling rules articulated in order to reverse panel decisions that are later seen to be out of step with changing circumstances.” Furthermore, it was argued, “a strict coherence rule may cause a situation where the first panel to discuss a certain issue might set a standard that may not be reconsidered later. This will create a sense of arbitrariness and stagnation.” Others argued that since social media is a rapidly changing industry, precedent should not prevent review of future, similar content. In the end, many argued for balance: an understanding of precedent that would help ensure consistency but not necessarily be determinative.
The report doesn’t make clear how these questions have been resolved, though it seems likely that many have been. Facebook says a final charter for the board will be released in August, and that it will work to stand up the first group of panelists shortly thereafter.
There are at least two good reasons to support Facebook’s board initiative. One is that it shows that the company understands its power over public speech is untenable, and is seeking to devolve some of that power back to the public. Two is that by returning some of that power to the people, Facebook can become more accountable to its user base over time. The details are all messy, and of course they are — it’s a pseudo-constitutional convention! But the goal still strikes me as a worthy one, and Facebook is moving ahead with a caution that is as welcome as it is rare.

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And finally ...
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Talk to me
(Yesterday I forgot to finish the sentence with my customary joke at the end of the newsletter, and so accidentally encouraged people to “send me Cass Sunstein,” Zuckerberg’s interviewer at the Aspen Ideas Festival. Thank you to the readers who sent me images of the Harvard law professor; you may now stop, as I have enough.)
Today I invite you to send me tips, comments, questions, and your nominations to Facebook’s oversight board:
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