When Olive Branches are Disguised Trojan Horses: A Critical Review of Zuckerberg’s “New Rules”
by Neil Turkewitz
Mark Zuckerberg recently penned an op-ed in the Washington Post entitled: “The Internet needs new rules.”
In his post, Zuckerberg declares: “I believe we need a more active role for governments and regulators. By updating the rules for the Internet, we can preserve what’s best about it — the freedom for people to express themselves and for entrepreneurs to build new things — while also protecting society from broader harms.” I couldn’t agree more with this rejection of the core cyberlibertarian premise of internet governance 1.0 based on Barlow’s infantile notion of “cyberspace” occupying a territory free from the unwelcome rules of the “weary giants of flesh and steel.” It reflects an understanding that if anything, the internet makes us more interdependent than ever, increasing the need for democratic governance, mutual respect, comity and an understanding of the needs of diverse persons — particularly those of marginalized or at risk communities. The Barlow vision which still dominates most thinking around internet governance assumed that the flourishing of the internet — and mankind more broadly, was dependent upon governments getting out of the way. It’s now clear that we need a design upgrade that is as capable of addressing harm as it is at enabling the dissemination of ideas. The chasm between the capacity to inflict harm and the response thereto is where dreams and opportunity perish. We need to reclaim it, and Zuckerberg’s embrace of a new model — or at least the appearance of such an embrace, is therefore highly welcome.
Unfortunately, instead of tweeting his rejection of the cyberlibertarian status quo, Zuckerberg penned an entire essay that, in the guise of effecting his epiphany, is a combination of public relations mumbo jumbo and an attempt to deflect current regulatory pressures by proposing time-consuming (and ultimately unachievable?) global harmonization. Perhaps even more distressingly, he appears to want to offload corporate responsibility onto government which he does through a series of false dichotomies in which individual ethical conduct presents itself as somehow in conflict with the rule of law. Perhaps because he lives in a binary world, he sees problems/solutions in binary terms. Business ethics and government regulation aren’t alternatives — they coexist, and each has its place. But for Zuckerberg, it appears that he wants to be all-in: either a completely deregulatory universe (internet governance 1.0 or what I like to call, the beta version), or one in which corporations operate merely as vessels for state action, exercising little or no judgment. But both extremes are untenable, and Zuckerberg’s olive branch needs to be seen for what it is — a Trojan Horse.
In some cases, Zuckerberg’s missive is actually a barely disguised vehicle for advancing Facebook’s core objectives, including encouraging global standard setting to avoid individual state sovereignty and prohibiting local data storage. Zuckerberg writes “I also believe a common global framework — rather than regulation that varies significantly by country and state — will ensure that the Internet does not get fractured, entrepreneurs can build products that serve everyone, and everyone gets the same protections.” But again, a “fractured internet” is code for avoiding national laws, and is premised on the same kind of tech-Utopianism and exceptionalism that has brought us to where we are today. It is “shorthand to avoid discussion of the complex balancing of law and the preservation of cultural and social values in world where those values are not universal, regardless of the capacity of technologies to transcend borders.”
I explored this further in a submission made to the Department of Commerce on behalf of a group of artists and academics who came together as the Ad Hoc Coalition for Copyright & Digital Prosperity: “Web 1.0 assumed an homogenized global market without legal or cultural differences, and treated national prerogatives as impediments to the free flow of information. If we want to expand the growth of the “digital economy,” we must develop new modalities and tools for segmenting markets. While that seems a heretical thought from the standpoint of Web 1.0, it is increasingly obvious that it is a critical condition of expanding trust in the expansion of the digital economy. Web 1.0 thinking was too binary to sustain the development of a new global economy. To capture the potential of new technologies to drive global and shared prosperity, we need to marry discipline, restraint and freedom, understanding the multi-faceted nature of a freedom that doesn’t only contemplate lack of restraints on the actor.”
Zuckerberg suggests that “There are also important questions about how political campaigns use data and targeting. We believe legislation should be updated to reflect the reality of the threats and set standards for the whole industry.” Okay, let’s do that — we can advance societal goals by harmonizing definitions as much as possible. But that is not a predicate for individual action by companies. Zuckerberg has lived in a world of such legal advantage for so long that he can’t fathom that much of what he proposes can be achieved by changing legal incentives for platforms. You know, for internet companies to have the same kind of duty of care to operate reasonably in light of foreseeable harms as any company operating offline does. I know…way out there and hard to fathom for companies that have grown up in the shade of Section 230 and Section 512 of the DMCA which have relieved them of responsibility. He ironically notes that: “Regulation could set baselines for what’s prohibited and require companies to build systems for keeping harmful content to a bare minimum,” without observing that establishing a duty of care through reform or elimination of Section 230 of the CDA would create such an incentive without the need to create agreements about “what’s prohibited.”
Zuckerberg proposes rules in four areas. I have one: recognize that you are doing business in a culturally diverse world where borders still matter notwithstanding the ability of digital communications to quickly traverse them. Build systems that understand that we will never have a global consensus on the nature of harm and that operating on a global scale requires particular sensitivity to the needs of individual communities. When you speak of avoiding “a Balkanized internet,” recognize that you are essentially asking the rest of the world to accept the default rules developed in Northern California — rules which principally fail to reflect the perspectives of at-risk communities. So let’s work at standard setting, both normative and technical. Let’s develop better baseline legal principles for enhancing platform accountability. But let’s never make the mistake of believing that these are alternatives to ethical conduct. By definition, laws and regulations are designed to prohibit the most egregious conduct, and represent a form of lowest common denominator. They cannot be the lodestar for how to live a moral life.