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Fb: Structure earlier than statutes

Constitution of America, we the people.

The Facebook Oversight Board is now open for cases and I’m looking forward to the results. But I have the same question that I had since the start of planning for the creation, and I asked that question on a web call with management today:

What higher principles will the Board of Directors use in making its decisions? It will decide on Facebook’s content decisions on the basis of its own statutes – that is, the “community standards” that Facebook sets for the community.

The board says it will also decide cases based on international human rights standards. This could mean that the board may find that Facebook has properly enforced its statute, but that the statute violates a human rights principle, which would result in a political recommendation to Facebook. Well.

There remains, however, a large gap between Community law and international human rights law. What is missing, I have argued, is a constitution for Facebook: an explanation of why it exists, what kind of community it wants to serve, what it expects from its community, in short: a North Star. That does not exist.

But whether it and Facebook know or not, the Oversight Board could end up writing this constitution, one in the English model set by precedent, rather than the American model set in a document. This will be primarily under Facebook’s control. While the Oversight Board can ask policy questions and make recommendations, it has limits on what cases come from users and Facebook, and it doesn’t set any guidelines for the company. It only decides on objections and makes political recommendations.

It is up to Facebook to decide how to handle the larger policy issues and cases raised by the Oversight Board. In response to recommendations, Facebook may begin to develop a number of principles that in turn define Facebook’s raison d’etre, its higher goals, its north star, and its constitution. That’s what I told the people on Facebook that I want to see.

The problem is, Facebook or any of the tech companies don’t think that way. Since code is law, as Larry Lessig famously commanded, technologists want rules – laws – to feed their code – their algorithms – and make consistent decisions on a large scale.

The core problem facing tech companies and their relationship with society today is that they are not testing this Code and the laws behind it against higher principles than posters on the wall: “Don’t be angry.” “Work fast and break things.” These don’t make you in good shape.

But now is your chance to create one. And now maybe our chance. It wasn’t clear to me that every case by the supervisory board would begin with a public comment period. This is how we can address issues with the board. In fact, community standards should come from the community, damn it, or they aren’t community standards. They are corporate standards. So we should get in touch.

And the board will consult experts. You can raise issues with the board. And the board, in turn, can pose problems not only for Facebook, but for all technology companies, for example. This discussion could be useful.

Imagine if the board had been up – as I would have liked – when Twitter and Facebook decided what to do to address the obvious attempt by the New York Post and Rupert Murdoch to hook up with Rudy Giuliani Interfering with, blocking elections. The Board could have discussed, addressed and proposed policy recommendations based on principles useful to many internet companies and the media they love to launch.

Regulators could also be more productive than punitive. I was a member of a transatlantic working group on content moderation and freedom of expression that recommended a flexible framework for regulation that would allow government to hold companies accountable for their own assurances, with companies having to share usage and impact data, so researchers and regulators can monitor their performance. I think that would be far better than the government trying to tell companies how to act, especially when it comes to encroaching on freedom of expression. But the government cannot hold companies accountable for keeping promises if there are no promises to be kept. A constitution is a promise, a covenant with users and the public. Every company should have one. Every company should be held accountable for meeting its requirements. And the public discussion should revolve around these principles, not whether Johnny can use a bad word.

I’m not making predictions here. The board could end up answering a handful of Picayune complaints out of tens of thousands of possible cases per week and scripting an online soap opera. Facebook could follow the legal text set by the board and miss the opportunity to set higher goals. The media, experts and the public could be ignored, or worse, they could just keep snooping instead of contributing constructively.

But I can hope. The network is young. We – all of us – still design it the way we use it.

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