Stanford Law Policy Class Provides Possible Protocols for Proposed Facebook Oversight Board
June 27, 2019 – Jenny Martinez, the Richard E. Lang Professor of Law and dean, Stanford Law School, took part in a video discussion about technology in society with Facebook founder and CEO Mark Zuckerberg. The topic of the discussion was the proposed independent oversight board that would review Facebook content removal appeals, as well as larger questions about power, responsibility and governance of internet platforms. The video is the fourth in a series of public discussions with experts hosted by Zuckerberg.
“The issues introduced by companies like Facebook present a governance challenge globally that will, I think, change the way that international law itself works over time,” said Martinez. “From an academic perspective, these are not only questions of practical importance, but ones that are foundational to legal theory and the understanding of sovereignty and regulatory power.”
The hour-long video conversation with Martinez, Zuckerberg and Noah Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, focused on issues of free expression and social media, in the immediate context of Facebook’s efforts to design an oversight board for content review and appeals, and the more than 30 simulations conducted across the globe by Facebook to gather feedback and expert opinion to help guide the process over the past year.
“Every day we make decisions about things like what kind of content belongs on the internet versus what’s harmful, and how to keep people safe,” said Zuckerberg. “We’re always going to have a big part in this but at the end of the day, we shouldn’t be making these decisions ourselves – they’re too important.”
Martinez noted policy concerns that have arisen globally as private companies like Facebook — with more than two billion users — have so much power over speech, but without the accountability and transparency that democratically-elected governments have when they make hard choices about protection of free expression and other societal interests like public safety or election integrity.
During the discussion, Martinez and Feldman focused on the significant challenges the oversight board will face, including the enormous volume of content that might be reviewed and the difficulty of creating a process that ensures a global perspective.
Oversight on a Global Scale
Martinez, an expert on international and constitutional law, offered a broader perspective on the historical relationship between private companies, state powers and public laws, as well as on variations in laws on freedom of expression globally. “The right to freedom of speech is reactive to historical experience,” said Martinez. “While the U.S. may protect more speech, countries like France and Germany have more rules around hate speech because of their history. Setting a standard of speech protection across the world of Facebook will be very challenging when you take into consideration the variances among countries that have different approaches to freedom of speech.”
Martinez also drew on her experience clerking on the U.S. Supreme Court as well as the United Nations International Criminal Tribunal. “One thing an international court does is to accommodate local differences with an international “minimum.” This can be an opportunity to set a floor, a minimum level of free speech and human rights. As a company, Facebook cannot be a party to international conventions or treaties. But companies have a responsibility to respect human rights.”
When discussing the idea of legitimacy for the oversight board, Martinez and Feldman agreed that while legitimacy can come from different angles — the transparency and effectiveness of the board’s set up and decision-making process, the perception that the values being applied to decisions are accepted by a broader society (like universally-accepted international human rights laws) – another key marker of independence and legitimacy would be if the board makes a decision that Facebook doesn’t want it to make, and the decision stands.
Martinez also noted that there are challenging questions about the balance between voluntary policies from private industry and public regulations.
Stanford Law Policy Practicum on Social Media Oversight Board
Stanford Law Professors Paul Brest and Nate Persily and Stanford Political Science Professor Rob Reich were invited by Facebook as experts to take part in one of the company’s oversight board simulations. Out of that experience, Brest, Persily and Reich, along with Stanford Law Professor Dan Ho, developed and conducted an independent policy practicum at the law school that looked at critical issues in creating a social media oversight board for content decisions.
“More than 600 million pieces of content are removed from Facebook each month, whether by algorithm or content reviewers,” said Madeline Magnuson, one of the students in the policy class/practicum, during an interview on the Stanford Legal radio show. “Those actions generate eight million appeals to Facebook every month.”
Student researchers conducted interviews with social media personnel, including Facebook employees and executives, about the challenges the company faces with moderating controversial content. The policy class discussed options for the oversight board’s selection and membership, and its processes, including how cases are selected for review, deliberated, and decided, and how decisions are published to provide guidance for a social media platform and its users. The students also researched different adjudication models and processes, as well as the limits of an adjudicatory model that works on a case-by-case appeals system.
“Our students had a lot of access to Facebook staff and were even able to present their recommendations at Facebook’s headquarters,” said Persily, on the same radio show. “Our students want Facebook to be pretty bold here and create a truly independent oversight board, and potentially use the board’s decisions to recommend changes to the community standards for content review at Facebook and elsewhere.”
Persily and Magnuson talked about the difficulty of creating a global oversight body that was truly representative of Facebook’s global community. “Through this practicum, we were able to grasp the true enormity of Facebook’s challenge,” said Magneson.
“To have legitimacy, this oversight body needs to be representative of the global community who use Facebook, and that’s not just making sure different nationalities are represented, it also means making sure there is diversity of expertise and age,” said Persily.
“And, this doesn’t even touch on the hardest issue where people’s lives are at stake. In the U.S., we worry about election interference but in much of the world, leaving up speech has the possibility to incite riots or ethnic violence.”
Closing the Facebook video interview, Zuckerberg highlighted the new report on the oversight board that Facebook just released. “I’m excited about how this new board is starting to shape up but there’s still a lot to do.”