Note: This was originally published as the daily newsletter for the Columbia Journalism Review, where I am the chief digital writer
Last week, after months of deliberation, the Facebook Oversight Board — the theoretically independent body that adjudicates cases in which content has been removed by the social network — released its decision on the banning of Donald Trump. The former president’s account was blocked permanently following the attack on the US Capitol building on January 6th, after Facebook decided he was using it to incite violence. It sent this decision to the Oversight Board for review, and the board announced its ruling last week — a two-part decision that upheld the ban on Trump as justified, but also noted that Facebook doesn’t have a policy that allows it to ban accounts indefinitely. So the board gave the company six months to either come up with such a policy, or impose a time limit on the Trump ban. Some observers saw this as the Oversight Board “punting” on the choice of whether to ban the former president, rather than making a hard and fast decision, while others argued that paying so much attention to the rulings of a quasi-independent body created by the company it is supposed to oversee meant giving the board (and Facebook) too much credit, and was a distraction from the company’s real problems.
Is the Oversight Board a valid mechanism for making these kinds of content decisions, or is Facebook just trying to pass the buck and avoid responsibility? Did the board’s ruling on Trump’s ban reinforce this latter idea, or is the board actively fighting to ensure that it’s not just a rubber stamp for Facebook’s decisions? To answer these and other related questions, we’re talking this week with a number of experts on Galley, CJR’s digital discussion platform, including Nathalie Maréchal, a policy analyst at Ranking Digital Rights; Kate Klonick, a law professor at St. John’s in New York who has been following the Oversight Board since its inception, and Evelyn Douek, a lecturer at Harvard Law School and an affiliate at the Berkman Klein Center for Internet and Society. Maréchal, for one, falls firmly into the camp that believes the Oversight Board is mostly a distraction from the important questions about Facebook and its control over speech and privacy. “The more time and energy we all spend obsessing over content moderation, the less time and energy we have scrutinizing the Big Tech Companies’ business models and working to pass legislation that actually protects us from these companies’ voraciousness,” she said.
The most important thing that the government could do to reign in Facebook’s power, Maréchal says, is “pass federal privacy legislation that includes data minimization (they can only collect data that they actually need to perform the service requested by the user), purpose limitation (they can only use data for the specific purpose they collected it for — ie, not for advertising), and a robust enforcement mechanism that includes penalties that go beyond fines, since we know that fines are just a slap-on-the-wrist cost of doing business.” Klonick, for her part, is a little more willing to see the Oversight Board as a potential positive influence on Facebook — although not a solution to all of the company’s myriad problems, by any means. And Klonick knows the board more intimately than most. In 2019, she convinced the company to give her access to those inside Facebook who were responsible for creating the board and developing its mandate and governance structure, and she later wrote about this process for The New Yorker and others.
Continue reading “Did the Facebook Oversight Board drop the ball on Trump?”