Policing the POPS — the thorny issue of regulating Facebook
POPS — Privately Owned, Public Spaces are a part of modern life.
When you walk into a shopping mall you enter a POPS. The land you are walking on, may be owned by someone, but it feels like a public space — it’s free to enter, you get to hang out, meet your friends, visit shops and so on, it feels pretty similar to a shopping on a street.
Fundamentally though, the mall is different from the street. The organisation that owns the mall, has rights over your activity in there, they can bar entry, define rules of behaviour and expel you without due process.
That’s not the same on a street — here you are on publicly owned space. Your behaviour is regulated by the rule of law for that country, which in most countries confers basic rights such as habeas corpus (which gives you the right to a trial if you are detained).
So here’s the issue, when you walk into a mall — you feel like you are in a public space, with the same rights and responsibilities, but you are not. You are actually inside a private property and subject to the rules of the house.
If you misbehave then you can be expelled (the security guard chucks you out) and you have no right to get back in. That can feel very unfair, particularly if all your friends are still allowed inside. You can complain to the company but they can decide to ignore you. And, unlike a public space, there is no disinterested 3rd party (a judge) who will hear your case and decide the rights and wrongs of it.
Then, what happens when the behaviour inside the mall, is beyond the ability of the owner to police? For example crowds gathering for violent purposes — mall security guards cannot be expected to deal with this sort of activity. That’s why in many places the state provides policing support to malls, for example the mall of america has 12 police officers stationed there, seconded from the city.
At some point all mall owners realise that some policing needs to be handled by the police.
So what’s this got to do with Social Media, and Facebook in particular, in light of today’s controversy around their moderation policies?
Social Media sites are POPS, just like a mall, but on a much bigger scale.
Facebook is a Privately Owned, Public Space. It feels like public space — it’s free to enter and you get to hang out with who you like for as long as you like — but it’s actually private. Instead of a few hundred people at one time though, they have a billion. That’s quite a difference in scale.
How you behave inside Facebook matters — you are subject to their terms and can be banned and expelled without due process, just like a mall.
But Facebook right now is acting like a mall owner struggling to police behaviour inside. The recent controversy with fake news, shootings filmed on Facebook live and so on, are becoming behaviours that cannot be moderated away. The same can be said on other social networks such as Twitter and Instagram though the heat right now is on Facebook.
Even the lesser crimes are becoming harder to deal with — on social media the mall security guard equivalent is a content moderator. Facebook just hired 3000 more to the team who, currently process 6.5 million “reports” every week — that’s an awful lot of content and it’s no surprise they get it wrong every so often.
What the malls have and Facebook lacks is an effective higher authority: a rule of law, judges to administer it and a police force to enforce it.
Right now Facebook rules are governed by Northern California law and the state of San Mateo county. But they aren’t geared up to provide justice on the social network: a visit to the San Mateo website shows that their small claims forms are targeted at US citizens, requiring a US address and zip code, and there’s nothing on their home page to indicate they are taking responsibility for judicial process over a service with 2 billion people globally. I’d have expected to see at least a link with “Upset with Facebook’s rules or been banned unfairly? Follow this track to have your case heard”.
Then there’s another issue, who decides what’s illegal?
What’s illegal in San Mateo is legal in other countries (drinking at the age of 18 for example) and what’s illegal in other countries (photos of the Thai king for example) is legal in San Mateo.
Even what Facebook defines as illegal probably requires a little more scrutiny. For instance Facebook policy bans you from doing anything “misleading”. How now do you answer the question “does my bum look big in this?!” There are undoubtedly less trivial examples too.
So that brings us to the thorny issue of who should regulate and police the social networks?
How can any government which is essentially national, police and regulate a digital service which is essentially global?
The reality is that public policy is very late to the party. Facebook already has 2 billion users. If it were a country, that would already make it the largest nation on the planet.
My own government, in the UK has produced guidance for social media providers on child safety which is excellent, however it’s not the UK government’s job to regulate all of Facebook.
So inevitably we then look to international organisations like the EU and the United Nations.
Neither organisation has particularly strong credentials: EU thinking tends to align most closely with the German obsession with privacy while the UN’s social media strength is fledgling. I’ve convened a group called the UN Social 500 of the UN’s top social media users. Perhaps over time this group can help guide the UN to be an effective, and fair, global police for social media? Perhaps.
It’s not even clear to many that government should be getting involved — as MEP Marietje Schaake pointed out at a recent “algorithmic accountability” debate, public trust is currently higher in Facebook and the tech giants than it is in their own elected politicians!
Personally I think it’s now time to create and resource a body for policing and regulating for the users of Facebook, Twitter, LinkedIn and others. I am a firm believer that the impartial rule of law will improve the experience for all. This cannot be a simple knee jerk reaction, the problems of policing and regulation are hard and there is no magic bullet. However, it must be attempted.
The question now is how it should be implemented, and by whom?
