I do not like Marc Zuckerberg. Perhaps it would be more accurate to say that I did not like the character representing Marc Zuckerberg played by Jesse Eisenberg in the 2010 movie The Social Network. So I am delighted that he is getting his ass in a sling over the role that Facebook and some of his other possessions have played in the corruption of American politics. I hope he gets everything that is coming to him, although I seriously doubt that he will. But leaving that to one side, the question what if anything Congress should do about Facebook raises some very interesting issues that I have been idly brooding about.
The New York Times and the Washington Post are newspapers.
They publish news, op-ed comments, reviews, and of course a ton of
advertisements. Much of that content is written and edited by employees of the
newspapers and there are all sorts of laws regulating what they are and are not
permitted to publish. If they deliberately, maliciously publish lies about
people damaging those people’s lives, careers, and even safety, they can be
sued and may end up having to pay large damages.
The newspapers are – or at least were in the good old days
when I was young – written on paper and on typewriters and printed on printing
presses with ink. In the summer of 1952, when I worked as a copy boy on the old
Herald Tribune, I saw those printing presses and typewriters and rolls of
paper.
When a newspaper publishes something that violates the law
and is sued or even charged with a criminal violation, nobody attempts to go
after the companies that make the printing presses and the typewriters and the
paper and the ink. It is certainly true that without the printing presses the
newspapers could not publish (at least in the good old days) but that fact does
not make them liable for the violations of law committed by the newspapers
using those presses.
Marc Zuckerberg says that Facebook is not a newspaper. Its
employees do not write the content that is posted on Facebook pages. Facebook,
he says, is simply a platform. It is the technological modern version of a
printing press or a typewriter or ink or paper.
In some sense he is clearly right. Facebook is not a
newspaper. It is not a cable news program. It is not the evening news. It is
merely a platform. Nevertheless, it and its various subordinate possessions
(Instagram, WhatsApp, and the rest) are causing immeasurable harm around the
world. Something needs to be done and I freely confess that it is not clear to
me what that something is.
In your socialist almost utopia would there be any Facebooks or Googles or Apples or Amazons?
ReplyDeleteBeing state run would create problems, wouldn't it?
What's the point, Howard? How did you leap to a "socialist almost utopia" and how would you define it? Who ever said anything about "state run"? Does your interpretation leave any room for innovation?
ReplyDeleteIf you seek an analogy for what social media e.g. Facebook is, it is more appropriate to look at it as a giant global bulletin board or advertising column on which everyone has their own segment to which only they may attach postings (others may comment on them). A regular member may only change the contents on their own space. They can look at other member's spaces.
ReplyDeleteOnly the operator (i.e. the corporation Facebook) can moderate the board, i.e. remove postings of members against those members' consent. At least under the current governance models, which are also dictated by the corporation.
I'm not sure "What needs to be done" either, but what seems clear to me is that social media are an immensely important semi- or quasi-public space, and who operates them and which governance model they follow should be subject to public decision making, or at least not handed over to a profit-oriented private corporation.
(an important difference to a bulletin board / advertising column is that on social media, an account is needed to make a posting and it is tracked which account made which posting. On a real bulletin board really anyone can attach a post and it is per se not known who attached the posting)
Good points, Anonymous.
ReplyDeleteHoward, Prof Wolff describes himself as an anarchist.
Anarchists are allergic to the state. Isn't that, for many, a definitional difference between anarchists and (other) socialists?
Oh and I forgot to add: Your first few paragraphs draw a very (i.e. overly) charitable image of american newspapers or rather western media in general.* These institutions regularly produce and reproduce blatant non-truths and their role as perpetrators in "in the corruption of American politics" cannot be overstated, I'd presume it outshines that of Facebook/social media by orders of magnitude.
ReplyDelete* Fox News and the global right-wing media apparatuses in general are part of this media landscape. Excluding them would be like excluding the malicious actors on Facebook when assessing the platform.
Prof. Wolff,
ReplyDeleteAt the center of the concerns which you express regarding the effects, many of which are adverse, that Facebook is having on our society is Section 230 of the Communications Decency Act, 47 U.S.C. § 230. You can read it here:
https://www.law.cornell.edu/uscode/text/47/230
It provides two central protections, which apply to you as a blogger, as well as to Zuckerberg and Facebook. First, neither you nor Zuckerberg may be sued for the content of the people who comment on your blog, who file statements on Facebook. So, you cannot be sued for the caustic, and sometimes profane, comments I make, and have made, on your blog. But neither can Zuckerberg. You may only be held liable for what you yourself post on your blog preliminary to the comments. And in that regard, what you write would be protected by the 1st Amendment.
Second, neither you nor Zuckerberg can be sued for removing material contributed by others which appears on your blog or on Facebook.
These protections are quite broad. The statute states as its purpose, “to promote the continued development of the Internet and other interactive computer services and other interactive media.”
I know of only one case in which the scope of these protections was at issue in a lawsuit. The case is Jane Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016). Internet Brands owned and operated a website, modelmayhem.com, which was a networking site for models to market their services. Jane Doe was an aspiring model who used modelmayhem’s services. Unbeknownst to Jane Doe, two other users of the website (males) were using the website to target women for rape. They would contact potential victims with phony identifications and lure them to a location where they were raped. At some point, the owners of the website learned about the rape scheme, but did not alert potential victims. Jane Doe became a victim and sued the owners for her sexual assault. The owners defended, citing Sec. 230. On that basis, the trial court dismissed the lawsuit. The 9th Circuit reversed, holding that Sec. 230 did not protect the owners from failing to warn its subscribers regarding how the website’s information was being misused.
The Internet Brands decision would not expose Facebook or Zuckerberg to liability, since they routinely warn readers about inaccurate information, and also remove statements which are dangerously misleading. (I do not have a Facebook account, and am basing this assertion on what I have read and seen in the media.)
As one old enough to remember HUAC and Joe McCarthy, the idea of government regulating speech is scary.
ReplyDeleteFacebook, [Mark Zuckerberg] says, is simply a platform. It is the technological modern version of a printing press or a typewriter or ink or paper.
ReplyDeletePrinting presses, typewriters, ink, and paper make no editorial decisions affecting the content that readers view. Nor do they collect fees from the placement of advertisements in the content that readers view, or from selling details about readers to potential advertisers and other interested parties. Facebook is clearly more than just a media tool/platform. It engages in moderation/censorship & curation, for its own profit.
Aside—
The New York Times and the Washington Post are newspapers.... If they deliberately, maliciously publish lies about people damaging those people’s lives, careers, and even safety, they can be sued and may end up having to pay large damages.
Yes, in theory. But US laws* are much less stringent in this regard than, say, British. And there are few-to-no penalties if the lies are part of state-sanctioned propaganda, even if the result is the suffering and deaths of hundreds of thousands of innocent people.
*But then Facebook is a multinational entity. No reason to limit thinking about how to alter its behavior to the narrow domain of US law.
David Palmeter,
ReplyDeleteI agree, government shouldn't be able to dictate entirely what people are allowed to say and what we are allowed to read or hear. As often said, the better solution to bad speech is more speech.
On the other hand, I think there should be certain exceptions. Hate speech of the kind that was broadcast by radio during the Rwandan genocide should be subject to censorship, for example. Another example would be that manufacturers & sellers of food or medicine should be subject to restraints on claims they make about their products; it should not be permissible for a product label to include instructions on use of the product or suggestions for the use of the product that, if followed, would be likely to lead to serious physical harm or death. And I assume that all but the hardest-core libertarians see value in penalizing the production of media that requires harming subjects who are depicted.
I don't use Facebook, but I do use Whatsapp, mostly to receive family photos.
ReplyDeleteWhatsapp does censor contents. A family member was going to send me a video of my 4 year old granddaughter, who in hot weather bathes naked in the small home pool, but then was told that Whatsapp censored photos and videos of naked children and could close her account because of that.
I wonder why the first comment mentions socialist utopia. Certainly if prof Wolff thought that the solution was to socialize social media, he would have said that in his post, instead of: “Something needs to be done and I freely confess that it is not clear to me what that something is.” I frequently wonder why comments are so uncharitably belligerent and polemical on this blog, when prof. Wolff himself is so even-handed and open-minded in his posts (and, moreover, thoughtful). That’s why this is my first comment in a long time. Why don’t we all imitate the professor’s curiosity and good-humor, instead of persisting in this angry game of meaningless gotcha-commenting and oneupsmanship? It’s not just boring, it’s sad.
ReplyDeleteWhatsApp uses end-to-end encryption and as such it most certainly does not scan any of the stuff that gets sent and it does not block anything, let alone nude photos of children (much worse stuff is shared every single day in millions of WhatsApp groups). You must be describing something else.
ReplyDeleteDJL,
ReplyDeleteI have no idea. That's what someone in my family believes or believed.
I receive photos in Whatsapp, but for some reason I never take photos of anyone nor does anyone take them of me, so I never send them.
Maybe they were thinking about something like this:
ReplyDeletehttps://www.wsj.com/articles/apple-plans-to-have-iphones-detect-child-pornography-fueling-privacy-debate-11628190971
It's relevant to the topic of the OP because (I assume) US law already provides for penalizing media providers/platform owners who knowingly allow that kind of material to be disseminated. I believe that once a provider becomes aware of such material, they are required to disable further access to it and notify law enforcement. As in the case s. wallerstein describes, a problem arises when there is substantial disagreement over which material should be verboten.
Eric,
ReplyDeleteThanks. The article is behind a paywall, but I get the general idea from the little that appeared before they asked you to subscribe.
If an algorithm is used to direct information and hookup strangers then you don't have a neutral platform and you are a publisher.
ReplyDeleteGlenn Greenwald's take on the Facebook controversy.
ReplyDeletehttps://greenwald.substack.com/p/democrats-and-media-do-not-want-to?token=eyJ1c2VyX2lkIjoxODgzNjA1NCwicG9zdF9pZCI6NDIyMTY3MzEsIl8iOiJZZ3FHKyIsImlhdCI6MTYzMzQ3MTcxNywiZXhwIjoxNjMzNDc1MzE3LCJpc3MiOiJwdWItMTI4NjYyIiwic3ViIjoicG9zdC1yZWFjdGlvbiJ9.gk-OBhvWdx0Rph8UowvNhLpjSPlAcHiNxawdXoAVA-c
The rapid changes in information technology, through computerized digital algorithmic drven media sites is altering the social fabric in unpredictable ways. Facebook is a good example. It's transformative and you are right Prof Wolff, we have no idea what is going to hapoen.
ReplyDeleteA "gedankenexperiment"
ReplyDeleteImagine that "in those old days" a newspaper had the idea of laying off all its editors and chief editors. Instead, it would have rented offices in the downtown area, equipped them with typewriters and paper, and promised that anyone who came by and wanted to publish something would be welcome to do so free of charge. The newspaper would only reserve the right to link all articles with an advertisement to offset the printing costs.
I am relatively sure that no prosecutor or judge would have released this newspaper from its editorial responsibility for the content of its publications. And no legislator "in those old days" would have thought of seeking a law like the U.S. Communications Decency Acts (CDA) of 1996, Section 230, in which the crucial passage reads:
"No provider or user of an interactive computer service shall be treated as a publisher or speaker of information provided by another information content provider."
Anyone who lives in the European Union, as I do, and is well informed knows that very powerful lobbyist associations of the "oh so free market" are able to formulate pages and pages of legal texts and have them passed 1:1 by parliaments. Examples are legion and proven.
At that time in 1996, when Marc Zuckerberg still believed in the tooth fairy, very far-sighted people recognized the opportunities inherent in Internet platforms. At a time when many still believed in the wonderful freedom of the Internet, these people already knew which screws to turn to get the chance to generate trillions of dollars in the future.
Zuckerberg and his ilk are merely playing in the playground that was created by law back then. Naïve is who believes to be able to close the source now which provides for the fact that worldwide these trillions can be earned.
Rereading the original post, I focus on the affirmation that Facebook and associated platforms "are causing immeasureable harm."
ReplyDeleteI don't deny that, but aren't they also causing immeasureable good? In the sense that millions of people derive pleasure from them, enjoy them and prefer them to other pursuits?
Maybe in an ideal world instead of spending hours in Facebook, people would read Kant, listen to Beethoven and practice tai chi with their spare time, but that's not the way things are.
If we regulate Facebook, shouldn't we regulate the sale of junk food, reality shows on TV, Fox News, fundamentalistic religions of all varieties, and pro sports, especially violent ones like U.S. football? Shouldn't we regulate the use and sale of non-electric cars? How about the sale of factory-farmed meat too?
We do regulate food, regardless of the quality. Cars are regulated as are most of your other examples. We need to debork our legal system and restart enforcement of existing anti-trust and monopoly laws. Your argument is basically that if we can't fix every problem at once, we shouldn't try to fix anything. Social media is novel and, as with anything capitalism, produces we fix the harmful things as they arise, as we are able.
ReplyDeleteZuck got the idea for facebook from Philips Exeter... They have a small booklet with everyone's picture, name, and originating city... All the guys from Philips Exeter would look for the hottest girls each year.
ReplyDeleteI wonder what your opinion is about the Eight Schools Association? Were they good students?
https://en.wikipedia.org/wiki/Eight_Schools_Association
lol @ trusting that big tech keeps your data safe and private with 'end to end encryption' ... look into some of the documentation that Snowden leaked, on that.
ReplyDeleteIt's becoming clear that it's not technology per se that is the issue, it's massive monopolies misusing it, as usual. Bring back anti-trust law and break up the big tech monopolies - it's the only way to save us at this point.
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