Authored by Elizabeth M. Renieris on April 1st, 2019
Mark Zuckerberg’s recent op-ed in The Washington Post calling for new rules and regulations for the Internet has been met with a variety of reactions (had it been published today, it may have even landed as a clever April Fool’s joke). Many are painting his about-face as a move to impede competitors and disruptors. With all due respect to my former classmate, I think there’s more going on than meets the eye (and distractions abound).
Zuck laid out four key areas for new rules & regulations — harmful content, election integrity, privacy, and data portability. My thoughts on each in turn:
- “Harmful content” — This is simply the wrong framing. Content, like data, is contextual. A journalist might use a certain image to tell a story in one context, while a terrorist might use it for incitement in another. How do you tag “harmful content” without significantly threatening speech? An independent “truth commission” doesn’t solve it (ask me about my mother who grew up in the Soviet Union). The correct framing is to admit and accept that some Internet companies who continue to insist they are neutral platforms are in fact (or have at least over time become) publishers who should not be shielded by Section 230 of the CDA. The solution then is to assert publisher liability and impose journalistic standards against them.
- “Election integrity” — Political speech is one of the most protected forms of speech under the First Amendment (and for good reason), and attempting to address “election integrity” by regulating or curtailing political speech is a dangerous proposition. Moreover an exhaustive list of pre-determined “political issues” makes no sense since, just as with content, it’s contextual (for expert First Amendment-related counsel, I refer you to my esteemed former Professor David Hudson). The real issue here is in fact the targeted advertising or “ad tech” business model and the commodification of our identities and attention. In other words, the solution is not regulating the speech as a list of specific candidates, electoral races, or “issues” (as if). The solution is putting an end to the surveillance capitalism that allows for this “content” to manipulate individuals in the ways we’ve seen.
- “Privacy” — Firstly, what do you mean by “privacy” Zuck? You cite the GDPR as a global floor but the GDPR is a data protection regulation (the clue is in the name) that addresses rights and responsibilities that attach to data that we share with others. The GDPR and draft domestic legislation such as the CCPA (and the like) are important data protection frameworks but certainly don’t obviate the need for meaningful privacy protections against harmful surveillance practices and civil rights violations (I recently wrote about this here). Moreover, the arguments for global preemption of local, national, and regional legal frameworks (along the lines of the federal preemption debates in the US) may impede the need for certain jurisdictions to enact more stringent rules due to their geopolitical conditions or other realities. Frankly, I’m less concerned with the patchwork of rules that corporates have to comply with than I am about the incessant popups, tick boxes, terms & conditions, and other nuisances individuals have to “consent to” every day.
- “Data portability” — There are two core dimensions to data portability and your remarks only touch on one of them (and insufficiently at that). The first dimension is technical portability. As you say, this may mean moving personal data from one service provider to another but it also may mean moving personal data from a service provider to myself (and even removing it from all service providers if I wish). But the right to data portability is not a mere technical implementation. The second dimension is legal effect. True data portability requires somewhere for me to take my personal data, which means that true portability is inherently tied to market conditions and even antitrust regulations that may be required for the effective exercise and enforcement of rights. When I deleted Facebook, I had nowhere to take my thousands of photos, which remain a disorganized mess on my never-ending to-do list.
I may be wrong about all of this — Zuck’s op-ed may signify a sincere change of heart and redirection for Facebook. But what if I’m right?