Facebook’s new oversight board: Supreme Court or fig leaf?

Note: I wrote this originally for the daily newsletter at the Columbia Journalism Review, where I am the chief digital writer

More than two years after Mark Zuckerberg, co-founder and CEO of Facebook, first raised the idea of an independent “Supreme Court” that might help regulate content on the network, the first members of what it is now calling its Oversight Board have been named. The company released the names and bios of the 20 appointees on Wednesday morning, and also held a conference call with a number of journalists to take questions about the board and its mandate. The call was hosted by Thomas Hughes, director of administration for the Oversight Board, along with the board’s four co-chairs: Jamal Greene, a professor of law at Columbia University; Michael McConnell, director of the constitutional law center at Stanford and a former federal circuit-court judge; Helle Thorning-Schmidt, the former prime minister of Denmark, and Catalina Botero-Marino, the former special rapporteur for freedom of expression for the Organization of American States.

The 20 appointees announced on Wednesday — about half of the total number the board is expected to have when it is completed, according to Facebook executive Brent Harris — are an illustrious group that includes a director from Human Rights Watch, the founder of the Digital Rights Foundation in Pakistan, a professor at Stanford Law School, a First Amendment scholar and vice president at the Cato Institute, a director of the Open Society Initiative for West Africa, and Tawakkol Karman, a Yemeni winner of the Nobel Peace Prize. The group also includes a couple of journalists: Alan Rusbridger, former editor-in-chief of the Guardian, and Endy Bayuni, a senior editor at Indonesia’s Jakarta Post. In a Medium post about his appointment, Rusbridger says about his decision: “Will it work? Let’s see. There is, in my view, no excuse for not trying. The balancing of free expression with the need for a better-organised public square is one of the most urgent causes I can imagine.”

As CJR has explained before, the idea behind the oversight board is to have an independent body that can make decisions about the often contentious decisions that Facebook makes — whether to take down an image of a naked Vietnamese girl covered in napalm, for example. There are a number of restrictions on what the board can review: at least for now, it can only hear cases about things that have been taken down, not things that have been left up, and its ambit doesn’t extend to WhatsApp. Facebook says it is committed to the independence of the group, and that under the charter that it put together to govern the board, its decisions are binding — meaning it will theoretically be forced to implement them (unless doing so would break the law). Some see the board as a valuable check on Facebook’s power to control the speech and behavior of billions of users. But others question whether the board will truly be independent or effective against such a massive corporate entity, and see it as a fig leaf that allows Facebook to pretend it cares about such topics.

For example, Facebook says it is committed to the independence of the board, but the company unilaterally selected all four co-chairs (although it says it got lots of advice from outside experts), who then chose the 16 other members and will choose the next 20. It also funds the board, albeit through an arms-length trust. And Facebook also had an unspecified amount of input into the decision about whom to appoint as board members: In a blog post last year that described how members would be chosen, Facebook said co-chairs would “work together with us to select, interview and make offers to candidates to fill the remaining board positions.” The company also said it would take recommendations from participants in its global consultation program — six workshops and 22 roundtables attended by more than 650 people from 88 different countries — as well as from consultants and executive search firms.

A Facebook spokesperson told CJR the process of selecting board members was “collaborative between co-chairs and Facebook’s governance team.” But the extent of that collaboration isn’t clear. Did Facebook have the ability to veto a candidate or the ability to require the board to accept a particular candidate? And if so, did it have to provide the co-chairs with reasons for its choices? CJR tried to ask those questions during the Facebook call on Wednesday, but was never called upon by the moderator. When asked why anyone should believe the co-chairs’ claim that Facebook will implement the board’s recommendations, Botero-Marino said the company and Mark Zuckerberg had both committed to doing so, and there would be a “high reputational cost” if the company didn’t follow through. But Kevin Roose of the New York Times pointed out on Twitter that “there is no legal or financial mechanism to prevent [Zuckerberg] from totally ignoring these people whenever he wants to.”

Here’s more on the oversight board:

Fire-hose of awful: New York Times columnist Kara Swisher writes that while she is in favor of the effort to create an oversight board for content decisions, the problems with Facebook are much broader and intractable than any board of advisors can fix. Swisher says she’s not sure that even “a very smart group of qualified and thoughtful people under pressure from a fire hose of all the awful issues of our digital lives can actually help and rein in what Facebook has wrought.” Swisher adds that the oversight board “has all the hallmarks of the United Nations, except potentially much less effective.”

Don’t fool yourself: Daphne Keller, the director of intermediary liability at Stanford’s Center for Internet and Society and a former associate general counsel at Google, wrote in an Atlantic essay that while efforts such as the oversight board are worthwhile, “we should not fool ourselves that mimicking a few government systems familiar from grade-school civics class will make internet platforms adequate substitutes for real governments, subject to real laws and real rights-based constraints on their power.” Keller went on to say that we should be careful “before urging platforms to take on greater roles as arbiters of speech and information.”

Skeleton for a jellyfish: I spoke with Kate Klonick in an in-depth interview on CJR’s Galley platform last year, and we discussed the proposed Facebook oversight board. Klonick said that she was cautiously optimistic, and that she liked to describe the idea as “trying to retro-fit a skeletal system for a jellyfish. A private transnational company voluntarily creating an independent body and process to oversee a fundamental human right [is] really a very daunting idea that no one has ever tackled before.”

Caveats and exclusions: In a piece he wrote for CNBC about the board’s bylaws, Salvador Rodriguez noted that Facebook has put a number of restrictions on what the board can do. For example, it can’t consider anything that has to do with Facebook’s Marketplace classified advertising service, Facebook Messenger, the site’s dating feature, Instagram’s private messaging feature, or WhatsApp. And while Facebook said that it will look into whether the board’s decisions on specific pieces of content should apply to other similar situations, it reserved the right not to take action on them if doing so is beyond its “technical and operational capacity.”

Other notable stories:

The New York Times said Wednesday that it added more digital subscribers in the last quarter than it had gained during any quarter since it started charging readers for online content in 2011. The company said it added 587,000 new digital subscriptions, with 468,000 of those related to the core news product (the rest of the new additions were for digital apps like Cooking and Crossword). However, the paper also noted that the coronavirus has hit its advertising business badly, and that in the current quarter it expects that ad revenue will fall by as much as 55 percent.

Sinclair Broadcast Group agreed on Wednesday to pay a record $48 million fine to resolve a series of allegations with the Federal Communications Communication. The FCC announced that the agreement will end three investigations into the broadcaster, including charges that it failed to disclose the sponsor of paid content, and that it misled the FCC during its failed merger with Tribune Media. In a statement, FCC Chairman Ajit Pai called Sinclair’s conduct “completely unacceptable” and said the fine should serve as a warning to others.

BuzzFeed will furlough 68 staffers without pay starting next week through mid-August. The digital-media firm also will extend previously enacted scaled salary reductions through the end of the year. CEO Jonah Peretti announced the moves in an internal memo Wednesday, a copy of which was obtained by Variety. He said the company is hoping to keep losses to under $20 million for the year, but the decline in revenue in recent weeks has been even bigger than anticipated. “I’ve made the very difficult decision to furlough 68 employees beginning May 16th. In the US, the furlough will last for 3 months,” wrote Peretti, who is forgoing a salary during the pandemic.

Shaun Raviv writes for CJR about John Greenewald, who has been running a document archive known as the Black Vault for almost 25 years. The vault is a collection of more than two million pages of documents obtained via Freedom of Information Act requests, which he started filing in 1996 in an attempt to get information about UFO reports. Greenewald, now thirty-nine, recently started hosting a podcast, which he uses to drill deeper into the documents he obtains and to discuss them with experts on the topics they cover. He has also written two books and appeared on TV discussing the files he’s unearthed.

NBCUniversal CEO Jeff Shell’s executive committee leaders, a group of about a dozen people, will take a 20 percent salary reduction as part of the company’s coronavirus cost-cutting measures. The company also plans to “roll back” salary increases for exempt employees who make more than $100,000 in salary. “For the vast majority of you, this means reversing the recent merit increase that just went into effect in early March,” Shell wrote Tuesday in his memo, which was obtained by The Hollywood Reporter. He went on to say that “We know that these changes are difficult, and hopefully we can get to the other side of this crisis as fast as possible.”

Renee DiResta, technical research manager at Stanford’s Internet Observatory, writes that many institutions have been unable to keep up with the speed with which disinformation is spreading. “The WHO, the CDC, and other leading health institutions have failed to adapt to the way information now circulates,” she says in a piece written for The Atlantic. “Agencies accustomed to writing press releases and fact sheets for consumption by professional reporters are unequipped to produce the style and speed of information that the social platforms have made routine.”

Former AdWeek editor Josh Sternberg writes in his subscription newsletter about a new study published by the Incorporated Society of British Advertisers and the Association of Online Publishers, along with PricewaterhouseCoopers. By tracing the advertising supply chain, with data from 15 brands, eight agencies, 12 publishers and more than a dozen ad networks. the report found that publishers get a little over 50 percent of the money spent by advertisers. Most surprisingly, the study found that even after accounting for display network fees and other costs, about 15 percent of all advertising spending “could not be attributed” to any player in the supply chain.

The French government has taken down a Covid-19 “fake news” page it created after journalists in the country complained that selecting true and false news to highlight on the page was an overstepping of its constitutional role and an infringement on press freedoms. The page, called Desinfox (a play on the French word for detox) appeared on the government’s website last week and claimed to be busting disinformation about coronavirus in the French media. After the French journalists’ union reported the government to the country’s highest administrative court, the page was removed.

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About mathewi

I'm the chief digital writer at the Columbia Journalism Review in New York, and a former writer for Fortune magazine and the Globe and Mail newspaper.

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