The Fb Oversight Board proved it wasn’t Mark Zuckerberg’s puppet – now it is his transfer

Facebook Chairman and CEO Mark Zuckerberg testifies at a House Financial Services Committee hearing in Washington on October 23, 2019.

Erin Scott | Reuters

In 1803, the Chief Justice of the Supreme Court, John Marshall, faced an impossible decision.

He could disagree with President Thomas Jefferson on the Marbury v Madison affair, calling his administration’s actions illegal and risking Jefferson immediately rejecting or ignoring the court’s decision. Or he could bow to the executive branch, approve their actions, and receive a crumb of power within the fledgling US democracy.

In the end, Marshall and the rest of the court made an amazing decision. In its decision, the court criticized the administration’s actions but ultimately upheld them by ruling that the law in question was unconstitutional.

The decision is considered to be the most important in US constitutional law, because although Jefferson ultimately made the decision he wanted, Marshall established the principle of judicial review. The ruling set a precedent for the legitimacy and power of the US Supreme Court and cemented its accountability to the executive and legislative branches.

This process was repeated on Wednesday in the modern arena of a tech empire.

Facebook’s oversight board upheld the company’s decision to restrict former President Donald Trump’s access to his Facebook and Instagram accounts.

While approving the actions taken by Facebook and CEO Mark Zuckerberg following the January 6th Uprising in the U.S. Capitol, the Oversight Board also criticized the way the company came to its decision and asked Facebook to refine its content policy and codify.

The decision leaves Zuckerberg at a similar point where Marshall deployed Jefferson. He got the result he wanted, but at the expense of his absolute power.

The first real test for the oversight board

To understand the meaning of Wednesday’s decision, it’s important to remember how Facebook’s oversight board came about.

The independent body was announced by Zuckerberg in November 2018 after the company faced a serious avalanche of critical news and scandals for months.

“I have increasingly come to believe that Facebook shouldn’t make so many important decisions about freedom of expression and security on its own,” Zuckerberg said in a November 15, 2018 note. That was a day after the New York Times published a scathing report detailing how COO Sheryl Sandberg and other Facebook executives tried to downplay and spread bad news.

Zuckerberg announced the independent job, and then nothing happened for more than a year.

It wasn’t until January 2020 that the company finally unveiled the articles of association for its supervisory body. Although Zuckerberg claimed that the decisions of the board of directors were binding, the articles of incorporation contained a number of loopholes and bindings that kept the company firmly under control. In particular, the board would only be funded for six years, and more importantly, board decisions would apply closely, with Facebook having the final say on whether or not the board decisions should be applied across the board.

These limitations weren’t surprising given that Zuckerberg has single-handedly owned his domain since he founded Facebook in 2004.

Zuckerberg has close personal relationships with most of his board of directors, and directors attempting to oversee tend not to leave the board soon after, according to a report in the Wall Street Journal. Most importantly, Zuckerberg has control over his Facebook shares, which makes the votes of the company’s investors irrelevant. Because of this, proposals tabled at the company’s general meeting are always quickly rejected, despite the fact that in some cases they were supported by a majority of shareholders who were not named Zuckerberg.

For this reason, a group of Facebook critics decided to set up their own “Real Facebook Oversight Board” in September 2020. The group has no power or influence, but its very existence symbolized how little trust or hope anyone outside the walls of Facebook would have for the actual regulator.

It wasn’t until October 2020 that the Oversight Board finally came into being, and by then it was too late for the board to comment on the company’s handling of the 2020 US election.

Since then, the board has handled a few cases. But the independent body didn’t get its first test until Jan. 21, when Facebook announced it was forwarding its decision to suspend Trump indefinitely.

Cut the difference in half

As in the Marbury v Madison case, the Facebook oversight board found itself in an impossible position on its first major test.

Had the board overturned Facebook’s decision to curtail Trump, it would have released the company from its responsibilities and received sharp criticism from all left on the US political spectrum, as well as from Trump’s numerous critics around the world. The ruling would have undermined Facebook’s decision in January and pushed Zuckerberg to prove (or disprove) his commitment to the board’s decisions.

On the other hand, simply agreeing to Facebook would have drawn criticism from Trump’s supporters and positioned the board little more than Zuckerberg’s puppet.

Instead, the Oversight Board cut the difference in half by maintaining the suspension and holding the company accountable by broadly criticizing its policies and demanding that Facebook commit to a six-month re-evaluation. This process requires the company to reassess its sentence for Trump and determine a reasonable duration for that sentence, which is in accordance with Facebook’s rules and does so in a manner that is “clear, necessary and proportionate”.

In making this decision, the Board of Trustees has not crushed words or withdrew from its impossible task.

“By imposing a vague, standard-less penalty and then referring this case to the board for resolution, Facebook is trying to evade its responsibilities,” the board said in its note announcing its decision. “The board rejects Facebook’s request and insists that Facebook apply and justify a defined penalty.”

Like Marshall and the early Supreme Court, the board used this case as an opportunity to determine that it will define its purpose, not Facebook.

“It is Facebook’s job to impose necessary and reasonable penalties in response to serious violations of its content policies,” the board wrote. “The board’s job is to ensure that Facebook’s rules and processes are in line with its content policies, values, and human rights obligations.”

The board’s decision went beyond Trump’s specific suspension. In the decision, the board criticized the company in other areas, repeated complaints from outsiders for years, and made several specific recommendations on how the company can begin to get the matter under control.

These recommendations relate to how the company differentiates between users who are government and political leaders and users with widespread followers, and how the company deals with situations where an influential user is posting that has a high likelihood of an impending one Damage exists. The recommendations also ask Facebook to create confusion about how decisions are made regarding these influential users, and the recommendations ask Facebook to include in the company’s regular transparency reports how many accounts are restricted by region and country .

Prove your power

In making its decision, the board of directors did what no other body within the walls of the Facebook empire dared to do: publicly and officially criticize the company for its very real failures and the significant impact those failures had on human rights and democracy across the globe.

More importantly, the board established his legitimacy and independence and got Zuckerberg to affirm his power.

The rest is now up to Zuckerberg.

Should he commit himself to the decisions and recommendations of the Board of Directors and comply with them, he can legitimize the power of the Board of Directors and at the same time give up part of his own control.

If he ignores what the board has to say and undermines it, he will reveal the independent body as nothing more than a sham to hide that there are no checks and balances in the Facebook empire.

Facebook’s first response suggests that it hasn’t decided which path to go.

Nick Clegg, vice president of global affairs and communications for Facebook, said the company was pleased with the board’s decision to acknowledge that the company’s actions in January were warranted. Clegg thanked the board and said Facebook would consider the six-month review and its numerous recommendations. However, Clegg committed the company to nothing more than the decision to keep Trump away from Facebook.

It’s an initial and brief response, but the lack of commitment to the board’s recommendation is noteworthy.

It is worth going back to Zuckerberg’s words when he first presented the idea of ​​this independent body.

“I believe independence is important for several reasons,” Zuckerberg wrote in November 2018. “First, it will prevent too many decisions from being concentrated in our teams. Second, it will create accountability and control. Third, it will make sure of that.” Assurance that these decisions are made in the best interests of our community and not for commercial reasons. “

If Facebook wants the world to believe that following consistent guidelines is serious, it must commit to the six month review process and meet the board’s requirements. Otherwise, this supervisory body is exactly what critics have always thought: A joke.

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