0:15

Pushkin from

0:20

Pushkin Industries. This is Deep Background,

0:23

the show where we explore the stories behind

0:26

the stories in the news. I'm Noah

0:28

Feldman. This is a special

0:31

bonus episode, a mini episode about

0:33

some breaking news. This week, Facebook's

0:36

oversight board decided the

0:38

most important case in its short life,

0:41

what to do about Donald Trump's temporary

0:43

suspension from the platform, which had

0:45

been announced by Facebook in the aftermath

0:47

of the January sixth attack on

0:50

the Capitol. The story

0:52

mattered to me because, as some listeners

0:54

will know, I've been deeply involved

0:56

with the oversight board, proposing it

0:59

to Facebook in the first place and advising

1:01

the company on its creation. In

1:04

fact, I still advise Facebook on free

1:06

speech and free expression related issues.

1:09

So when it comes to the oversight board, I'm

1:11

the very opposite of an objective observer.

1:14

I am an observer who's deeply bound up

1:16

in the institution, the process, and

1:18

I care a lot about this decision,

1:21

and let me tell you, it was fascinating and

1:23

strange to see the decision of that institution

1:26

plastered on the front pages of

1:28

the newspapers. After

1:31

consultation with my terrific team of producers

1:33

here at Deep Background, we decided that it

1:35

might be useful to do a special mini

1:37

episode on the Oversight Board decision.

1:40

And I'm going to tell you, just from

1:42

my own perspective, three different

1:44

aspects of what you should think

1:46

or what you might wish to think about the Oversight

1:49

Board decision. What I'm going to do is

1:51

break my comments into three parts. First,

1:54

what did the Oversight Board actually

1:56

do? And as you'll hear, the answer is

1:58

pretty different from what the headlines have said.

2:01

Second, what is likely to happen

2:04

next in the coming months? And last,

2:06

but very much not least, why this

2:09

matters or may matter in the

2:11

big picture. First,

2:20

what did the Oversight Board actually

2:22

do? There is some confusion

2:24

around this because the very first thing the Oversight

2:26

Board said in its opinion was

2:29

the slightest little bit misleading. The

2:31

Oversight Board began by saying that it

2:33

was upholding Facebook's

2:36

decision in the aftermath of the January

2:38

sixth attack on the Capitol to take

2:40

Donald Trump off the surface. And

2:44

yet when you went on to read the fine print, the

2:46

Oversight Board went on to say that

2:48

Facebook's subsequent deep

2:50

platforming of Donald Trump for

2:52

an indefinite length of time was wrong,

2:56

standardless and unjustified,

2:59

as a consequence. The first thing the newspapers

3:01

reported was Oversight Board

3:04

upholds Facebook, Yet

3:06

they could just as easily have said as their

3:08

headline, the Oversight Board told Facebook

3:10

that it was not justified in

3:13

suspending Trump from its service. So

3:15

what was the Oversight Board in fact

3:17

saying when you drill down, Well,

3:19

what it said is that the decision to

3:22

block the content that Trump

3:25

posted during and in the process

3:27

of the attack on the Capitol

3:30

was the right thing for Facebook

3:32

to do because Donald Trump's

3:34

words, the Oversight Board believed

3:37

were contributing to ongoing harm,

3:40

including violence with respect to the

3:42

attack on the Capitol. Therefore,

3:44

said the Oversight Board, it was appropriate

3:47

to take down that content. But

3:50

the board then went on to say that

3:53

when Facebook chooses to take down

3:55

content, it doesn't ordinarily go

3:57

on to remove the user from the platform.

4:00

Instead, Facebook has a range of

4:02

things that it can do, which included just taking

4:04

down the content or temporarily

4:07

freezing the person's account too has

4:09

posted that content, or under some

4:11

circumstances, actually d

4:14

platforming the person. What Facebook

4:16

had never done before, according to the Oversight

4:18

Board, was announced an indefinite

4:21

suspension, which was neither labeled

4:23

as a mechanism to prevent future harm,

4:25

nor as a punishment for explicit

4:28

violations by Trump of rules

4:30

of the platform that can get

4:33

you d platformed. In essence,

4:35

what the board was saying was that Facebook

4:37

needs to go back to the drawing

4:39

board. It needs to clarify and

4:41

specify what its rules are going

4:44

to be going forward for taking

4:46

people off the platform, then to

4:48

see if those rules which it has to state,

4:50

explain and announce would

4:53

apply to Donald

4:55

Trump. Once it reaches that conclusion,

4:57

if it's clearly stated rules don't apply

5:00

to Trump, Trump has to be put back on

5:02

the platform. If it says that its

5:04

rules do qualify for

5:06

permanent removal of Trump, then it

5:09

could take Trump off the platform. And

5:11

Trump, of course, would then have the opportunity

5:14

to go back to the oversight board and ask

5:16

for it to review the issue again. Whether

5:19

it would listen to his case or not is uncertain,

5:21

but it seems probable that it would given

5:23

the great importance of the issue. You

5:26

probably noticed that a lot

5:28

of this decision therefore depends

5:31

on what Facebook does in

5:33

the next six months, and you

5:35

might also be wondering, And the truth is,

5:37

I'm wondering about this a little bit too, how

5:39

do the Oversight Board decide to

5:42

give Facebook six months

5:45

to figure out what it was going to

5:47

do next. So

5:49

let's turn to that six month period. And

5:52

here's why that six month period matters

5:54

so much. Some observers

5:56

of this decision have said that the Oversight

5:59

Board punted the question of

6:01

what to do about Donald Trump back to

6:04

Facebook, and in a sense that

6:06

is correct, acting in a manner not

6:08

unlike what many actual Supreme

6:10

courts or constitutional courts would do. The

6:12

Oversight Board declined to say, here,

6:15

Facebook, are the rules which you must

6:18

follow when the time comes to

6:20

decide whether to kick somebody off the platform.

6:22

The Oversight Board saw its role as doing

6:25

oversight, not as specifying

6:27

policy. So there is a punt

6:29

or a return of this issue back to Facebook

6:32

insofar as the Oversight Board was

6:34

telling Facebook, you have

6:37

to write the policy, We're not going to

6:39

do it for you. That

6:41

said, the Oversight Board gave substantial

6:44

guidance to Facebook

6:46

with respect to what that new

6:49

policy should look like. When

6:51

Facebook now goes to rewrite its policies,

6:54

it will go into the details of

6:56

what the Board suggested. And

6:59

although the Board did not say that Facebook had

7:01

to listen to these principles. The strong implication

7:03

was that if Facebook made a decision that violated

7:06

the principles that the board laid out, the

7:08

board might well overturn Facebook's

7:11

policies the next time around. What

7:14

was good for Trump is that the oversight Board

7:16

made it very clear that

7:18

Facebook, in deciding whether someone

7:21

like Trump can be permanently deplatformed,

7:23

has to look at whether his presence

7:25

on the platform would cause significant

7:29

imminent that means immediate harm.

7:32

Here's the money quote. Facebook

7:34

must assess whether reinstating mister

7:36

Trump's accounts would pose a serious

7:39

risk of inciting imminent

7:41

discrimination, violence,

7:44

or other lawless action. In

7:46

other words, Facebook can't just say we

7:48

don't like Donald Trump, we think

7:51

Donald Trump's lousy, or even

7:53

we think Donald Trump is in general dangerous.

7:56

They have to create rules according to which

7:58

a removal of Trump would be conditioned

8:01

on this serious risk of

8:03

inciting discrimination, violence,

8:06

or lawless action. That's good

8:08

for Trumps now that he's no longer president

8:10

of the United States, and now that he's not

8:13

commanding a mob that's about to attack the capital.

8:15

It would not be that easy for Facebook to show

8:18

that putting him back on the platform would

8:20

insight imminent violence

8:23

or lawlessness. What's

8:25

less good for Trump is that, in

8:27

describing what Facebook should do over

8:29

the next six months, the Oversight board

8:32

also seemed to suggest that

8:34

Facebook should require Trump to back

8:37

down from some of the spurious claims

8:39

about election fraud being made. Here's

8:42

the money quote here. Facebook

8:44

should, for example, be satisfied that

8:47

mister Trump has ceased making unfounded

8:49

claims about election fraud in

8:52

the manner that justified suspension

8:54

on January six And

8:56

in the real world we all know it

8:58

doesn't seem very likely that Donald

9:00

Trump, who responded to the oversight board

9:03

decision with a

9:05

loud statement of rejection in

9:08

which he referred to himself as the president

9:10

of the United States, is very likely

9:13

to take steps like that.

9:17

In any case, what Facebook is now going to

9:19

have to do is engage

9:21

in an internal process of figuring

9:23

out how to state rules

9:25

that will be designed to justify

9:28

and explain whatever they decide

9:30

to do about Trump. That

9:33

internal process will involve

9:35

those people within Facebook who make

9:37

content policy rules, and

9:39

they will have to figure out how to apply

9:42

those rules in a public way. They will

9:44

not only cover Donald Trump, but

9:46

will also cover anybody else whom

9:49

they wish to take off the service. The

9:51

Oversight Board made it very clear in its decision

9:54

that Facebook cannot have one rule for

9:56

Trump and another rule for every other

9:58

government leader. It also strongly

10:00

implied that Facebook should not have

10:03

different rules for public

10:05

figures who influence a lot of people than

10:08

it does for regular users. Regardless,

10:11

the Oversight Board was very concerned that

10:13

Facebook pay attention to the potential

10:16

dangers and harms posed by users

10:18

and explain the connection between those

10:20

harms and any decision to d platform

10:23

the person. We may not

10:25

know much publicly about how

10:27

Facebook undergoes this process right away,

10:30

but the good news is, under the board's

10:32

guidance and oversight, Facebook

10:34

will have to explain clearly and

10:36

publicly what its rules are, and will

10:39

have to show how those rules

10:41

operate. That brings

10:43

us to the grand question of whether

10:46

any of this matters. It

10:48

may not surprise you to hear that I think it matters

10:51

a lot, and for several reasons.

10:54

First is the fact that the Oversight

10:56

Board actually did its job.

10:58

That is to say, it operated it in

11:01

such a way as to render a decision

11:03

that neither rubber stamped what Facebook

11:06

had done nor fully

11:09

versed what it had done. Instead, the

11:11

Oversight Board did oversight.

11:14

That is, it held Facebook to account by

11:16

saying that Facebook had an obligation to

11:18

follow rules and principles that

11:20

would be made public in the realm of

11:23

free expression. On

11:25

its own, Facebook had not clarified

11:28

publicly exactly why Trump was removed.

11:31

It had acted in a somewhat

11:33

let's figure out what to do under these circumstances

11:36

ad hoc manner, and the Oversight

11:38

Board told Facebook it just couldn't

11:40

get away with that. Yet. The Oversight

11:42

Board also was unwilling to shoulder all

11:44

of the responsibility for telling Facebook exactly

11:47

what it should do in the future. It wanted

11:49

Facebook to take on board its own

11:51

responsibility for getting it right, and

11:53

that seems to be exactly

11:56

what oversight should be about. Second,

11:59

the Oversight Board decision was

12:02

treated by news organizations

12:04

throughout the world the way a decision

12:07

by an actual Supreme Court would

12:09

probably be treated. It

12:11

wasn't just discussed, It was analyzed,

12:14

poured over, evaluated,

12:17

argued about, and indeed also

12:20

much anticipated when it came down.

12:22

The fact that the world seems to have treated

12:25

the Oversight Board's decision as a real

12:27

decision suggests that the institution

12:29

may have passed its first major

12:31

test of legitimacy. Sure

12:34

it will be criticized, and indeed criticized

12:36

harshly by supporters of Donald Trump,

12:38

and it may also be criticized by people who think

12:40

that the board didn't go far enough in telling

12:43

Facebook exactly what to do. But

12:45

those are the kinds of criticisms to which real

12:47

world courts are subject all

12:49

the time. It's

12:51

therefore very important that this decision

12:54

was made, was discussed,

12:56

was analyzed, because it suggests

12:58

that a possible future direction for

13:01

the way important decisions like this are going to be

13:03

made is in dialogue between Facebook

13:05

and its oversight board. Some people

13:07

might prefer that there not be a dialog, that the oversight

13:10

board just speak and the conversation be finished,

13:12

but that's not how real world courts operate,

13:14

and that's probably not how the oversight board

13:17

is going to operate for now. Instead,

13:19

to engage in oversight, it's going to have to

13:22

participate in an ongoing process

13:24

of dialogue. Last,

13:27

but not least, one of the crucial reasons

13:29

for the creation of the oversight board in the future

13:31

was the sense that the most important

13:33

decisions about free expression

13:35

on social media are too big to

13:38

be made solely by the people who

13:40

run the company. The oversight

13:42

board told Facebook's leadership, we don't

13:44

like how you made this decision, go back

13:47

and do it again. Facebook will

13:49

then have to make a new decision, and that

13:51

decision, too is subject to

13:53

being reviewed finally by

13:55

the board. In other words, there

13:57

will be a sharing of ultimate responsibility

14:00

for decision making. That sharing

14:03

is, at least, in my view, a step in

14:05

the right direction away from a world

14:08

where the about free expression

14:10

are made by the CEOs of platforms,

14:13

with no option for recourse and

14:15

no independent review by any

14:18

third party body.

14:21

Everything that I've just said to you is subject

14:23

to revision and review as time

14:26

develops and as the story continues.

14:28

And just to remind you, none

14:31

of it comes from my objective analysis.

14:33

It all comes from my own connection

14:36

to and care about this nascent

14:38

institution. That said, I

14:40

will say, I'm pretty proud today

14:43

of what the oversight board did. I

14:45

don't know that I would have written the opinion the way the oversight

14:47

board did. I don't know that I would have given Facebook

14:50

six months in order to make this decision.

14:52

I might have thought it could do it in a substantially

14:54

shorter amount of time. I might have explained

14:57

why six months was the amount of time that was being

14:59

chosen as opposed to just suggesting it

15:01

as a reasonable amount of time in which Facebook

15:04

could act, But those are nothing but

15:06

little quibbles. In the end, this

15:08

institu Juan acted as

15:11

an oversight body and gave

15:13

feedback to Facebook, and Facebook

15:16

is going to have to listen, and

15:18

that, for once, seems

15:20

to be a small step forward

15:23

in the world of regulation and

15:25

ethics in the context of big

15:27

tech. I'll

15:34

be back to you soon with a full episode.

15:37

In the meantime, have a terrific week,

15:40

stay safe and be well.

15:44

Deep background is brought to you by Pushkin Industries.

15:47

Our producer is Mo laboord our

15:49

engineer is Martin Gonzalez, and our shore

15:51

runner is Sophie Crane mckibbon. Editorial

15:54

support from noahm Osband. Theme

15:56

music by Luis Skara at Pushkin.

15:59

Thanks to Mia Lobell, Julia Barton, Lydia

16:01

Jean Cott, Heather Fain, Carl mcgliori,

16:04

Maggie Taylor, Eric Sander, and Jacob

16:06

Weissberg. You can find me on Twitter at

16:09

Noah R. Feldman. I also write

16:11

a column for Bloomberg Opinion which you can find

16:13

at bloomberg dot com slash Feldman.

16:16

To discover Bloomberg's original slate of podcasts,

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go to bloomberg dot com slash podcasts,

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