In a recent globally placed op-ed—published in The Washington Post in the U.S.—he calls both for stronger industry standards bodies and for new legislation and regulation around platform companies.
Zuckerberg calls for action in four areas: “harmful content,” election integrity, privacy, and data portability. Regulation in each of these areas would be problematic, for different reasons.
First, attempts to regulate “harmful content,” which Zuckerberg defines as “terrorist propaganda, hate speech and more,” runs into age-old questions about speech. Who defines what is harmful? Zuckerberg suggests third-party standard-setting bodies, a regulatory “baseline,” with online platforms responsible for enforcement.
Such an approach would enable the tyranny of the majority, and threaten to turn the Internet into a tool of oppression in some places. Dozens of countries view blasphemy as “harmful content” and would seek to set it as a regulatory baseline within their borders. Then there is harm that is in the eye of the beholder. One man’s tasteless joke can look like another man’s hate speech. Who decides? Zuckerberg’s proposal would turn that decision over to Internet companies—and the likelihood is that they will err on the side of stopping the speech. Some of the squelched speech may well be repulsive, but it is in hard cases that commitment to free speech is really tested.
These problems are not new, just currently being debated over a new medium. In fact, Zuckerberg’s proposal echoes the ancient Greek idea that “guardians” would protect the morality of the people in an ideal republic. The Roman satirist Juvenal asked, “Who guards the guardians?”—and his question has never been satisfactorily answered.
The solution classical liberal theorists came up with is freedom of speech, which is enshrined in the First Amendment to the U.S. Constitution. This is why Zuckerberg’s proposal for regulated speech isn’t going anywhere in the U.S. However, his proposal for strong industry standard-setting bodies might gain some traction.
That would lead to two competing models of social media—one with aggressive speech codes, the other favoring free speech. There are signs this might already be happening, with people making their own online choices—and thus rendering such proposed bodes superfluous.
As for election integrity, it is strange that Zuckerberg should make this such an issue given that studies (such as this one from Stanford) suggest that the much-hyped “fake news” phenomenon had little effect on the 2016 election. Similarly, Facebook’s own investigation into Russian meddling in the 2016 Brexit referendum in the UK found that the Internet Research Agency, the Russian government’s biggest troll farm, placed three ads at a cost of 97 cents during the campaign.
Zuckerberg, however, argues that regulation should identify “political actors” and cover “information campaigns” as well as candidates. Furthermore, it should apply all the time rather than just during campaigns. This would drastically chill political speech by subjecting issue-specific campaigns that work to change political opinion over a long time horizon to election law, with its detailed reporting requirements and spending limits. Imagine the effect this would have had on the Human Rights Campaign’s efforts to legitimize gay marriage, for example.
Meanwhile, outside the U.S., it is extremely likely that dominant platforms and governments will come together to aggressively police speech. In fact, some governments could seize on “election integrity” as an excuse to clamp down on insurgent political movements and hinder opposition campaigns. Turkey’s ruling party, for instance, is using election integrity arguments to dispute opposition gains in this week’s local elections. Zuckerberg’s proposal could be a tragedy for democracy and liberty around the globe.
On privacy, Zuckerberg calls for global adoption of the European Union’s General Data Protection Regulation (GDPR)—an intrusive and heavy-handed regulation that CEI criticized in depth during the run-up to its adoption. As the authors of a CEI study on the topic said at the time, “The economic effects will include greater market concentration, as small firms and startups struggle to comply, conflicting priorities for businesses, greater inconvenience for users, and reduced innovation.” Moreover, as the paper also points out, some of the GDPR’s requirements and invented rights, such as the “right to be forgotten,” conflict with our more fundamental constitutional rights. A global GDPR, if adopted, will chill speech.
Finally, Zuckerberg calls for data portability—the right to take your data from one platform service to another. In some ways this conflicts with the call for greatly increased privacy, by which many people mean data security. As CEI’s GDPR paper noted, University of Nebraska Law Professor Gus Hurwitz suggests that “the easier that [a company] makes it for its users’ data to be exported at scale, the easier [a company] makes it for its users’ data to be exfiltrated at scale.”
Moreover, adopting an industry standard for portability that any platform is required to follow causes technological lock-in that will suppress innovation. Zuckerberg, unsurprisingly, seems to suggest such a role for Facebook’s own standard: “True data portability should look more like the way people use our platform to sign into an app than the existing ways you can download an archive of your information.” However, choosing one standard via regulation is a much less efficient way of doing this than by letting true interoperability emerge through market competition—the same process that made Facebook the world’s most popular social media platform.
Many of the policies Zuckerberg proposes are unconstitutional in the U.S. Others are simply bad policy. Yet, all of them, if enacted globally, could have catastrophic consequences for liberty, free speech, and democracy. Mark Zuckerberg should abandon this regulatory strategy and get back doing what he does best—move fast and break things.