The Regulation of Social Media – Not as easy as it sounds…

The Biden administration in Washington and the European Commission in Brussels have vowed to regulate social media more robustly. But there is little agreement on exactly how to do it, writes Victor Hill.

The missing Tweets

Mr Trump’s once manic Twitter-feed has fallen into a deathly silence. If his successor, President Biden, has anything to do with it, things will stay that way.

Twitter and the Facebook stable (which includes Instagram and WhatsApp), plus YouTube (owned by Google) and Snapchat have all committed to switching official handles – such as @POTUS, @FLOTUS, @WhiteHouse, @PressSec and so forth – over to the new incumbents of those offices, if they choose to use them.

The Twitter-droppings of the 45th President will apparently be archived for posterity with the National Archives and Records Administration (which will no doubt keep historians busy for years). Mr Trump has been banned, apparently indefinitely, from Twitter and the Facebook stable and his YouTube channel has been blocked. The 80 million followers of the @realDonaldTrump account have nowhere to go. Nor do the 15 million users of alternative right-wing platform Parler since Amazon Web Services withdrew use of its servers on 17 January.

Mr Biden, however, is not happy. For a start, the 12-or-so million followers of the @POTUS account on Twitter have not been transferred, so the new president must build up his own following from scratch. On the other hand, Snapchat handed over the 803,000 White House followers at 12:01 on 20 January and YouTube allowed the White House channel’s 1.9 million users to start watching content uploaded by Mr Biden’s team immediately. Facebook granted the 13.5 million followers of the POTUS Facebook page continued access.

The 46th President believes that the social media platforms have got away with abuses for which traditional mainstream media, both print and broadcast, would not have been forgiven. Moreover, he believes that the previous administration used social media in an unacceptable way. For example, it is alleged that Mr Trump’s advisors exchanged official messages on encrypted services such as Signal and Telegram, thus bypassing any formal records of their transactions. Not to mention that Donald Trump, as many see it, used social media on 06 January to provoke an insurrection that might have violated the US constitution. Overall, the weather for the social media giants has suddenly changed.

Apprehension in Silicon Valley

Mr Trump thought that Silicon Valley was a nest of trendy West Coast liberals with a woke social agenda. But he was loath to regulate big tech because he could see that it conferred advantages in terms of American soft power – and hard, for that matter. Mr Biden is much more in tune with the liberal views of the T-shirted billionaires who run Silicon Valley; but he is also committed to clipping its expansive wings.

A string of antitrust lawsuits is pending against Facebook, Google and now Amazon, actioned by the Federal Department of Justice, the Federal Trade Commission and by numerous States. Mr Biden is apparently considering the establishment of a new agency to combat big tech monopolies. Just as in the late 19th century the Federal government broke up the great railroad and steel company monopolies (trusts, as they were styled) so some people think that that now is the time to break up big tech. Even those who don’t want necessarily to break up Facebook into its component parts (but what are they?) do want to curb its ability to propagate misinformation and extremist opinion.

A law passed under the Clinton administration in 1996 – often referred to as Section 230 – granted social media companies immunity from prosecution arising from the content of posts appearing on their platforms. That law could now be repealed. There is a feeling that the increasingly bitter polarisation of opinion in America (the Divided States) has been facilitated by the creation of opinion silos fostered by social media. Some of these echo chambers are dedicated to conspiracy theories such as the one that holds the Bill & Melinda Gates Foundation to be a malevolent cult bent on world domination; or the one that insists that 5G telephone masts are spreading coronavirus.

On the other hand, there are more pressing priorities for Mr Biden, not least the management of the pandemic, the economic crisis given rising unemployment and the matter of how to deal with China. There is a vocal movement in favour of the tighter regulation of social media; but for ordinary Americans is well down the list.

Facebook’s refusal to fact-check political adverts on its platform is a particular concern amongst some of Mr Biden’s top team. A year ago, during the primaries and before winning the Democratic presidential nomination, Mr Biden called Mr Zuckerberg “a real problem”. Many senior Democrats still believe that Mr Trump was able to win the 2016 election because of his ability to manipulate social media. Whether justified or not, that suspicion does not fade.

Facebook contra mundum

Facebook’s Head of Global Affairs and Communications is a gentleman called Sir Nicholas Clegg who was once, apparently, a European politician. Recently, Mr Zuckerberg despatched him back to his native Europe with a mission to appease the political elites there who have fallen prey to prejudices against the social media giant.

Sir Clegg admits that social media broke the link between journalists and readers and that it changed the economics of publishing. Clearly, the circulations of print publications – newspapers and periodicals, though with some lively exceptions – have been in precipitous decline these last two decades. But, in response, newspapers have made their content available online, often behind paywalls. Others have made content available for free but financed by advertising (just like Facebook itself).

Only four percent of the total content available on Facebook consists of posts with links to news articles; but even so, Facebook, given its unparalleled reach with 2.8 billion users, plays and important role in the dissemination of news worldwide.

Last month, Facebook launched Facebook News for its UK users. This is a dedicated space within the Facebook platform which features news articles from mainstream media, personalised in accordance with users’ interests. Facebook will pay British publishers to display their articles in a standalone feed. A team of independent journalists will be paid by Facebook to select leading stories. A similar model will be rolled out in Germany and France later this year.

Sir Clegg insists that Facebook is not a publisher because there is no editor who determines what will be on the front page and which writers will be featured – though it does remove content if it does not accord with its internal standards. (This was purportedly the reason it banned Mr Trump). Nor is Facebook a utility. Rather, it is something entirely new.

In 2020, Facebook launched its Oversight Board which is meant to adjudicate in disputes about content on the company’s platforms. Facebook itself refers cases to the Oversight Board which has up to 90 days to formulate editorial policy in response. Membership of the 20-member Board includes luminaries such as Alan Rusbridger, the long-time editor of the Guardian, and Helle Thorning Schmidt, the former Social Democratic prime minister of Denmark. Members are paid six-figure salaries to deliberate in private.

Damian Collins MP, who is a former chairman of the Digital, Culture, Media and Sport committee and a founding member of the Real Facebook Oversight Board, hit back. He pointed out that in the run-up to the US elections, in 2019, Nick Clegg announced that “in the absence of government regulation” Facebook had no choice but to lay down its own policies on political messaging. After the 2020 elections Sir Clegg told an audience in India that, given the misinformation circulating that the presidential election had been stolen, the best judge of what is appropriate content was Facebook itself. Governments should not seek to micro-manage content, he argued, but should require transparency for the policing systems that tech companies impose.

Facebook’s Oversight Board cannot initiate its own deliberations but only meets if a user complaint is referred to it by…Facebook. Moreover, the Oversight Board does not adjudicate on content inside closed Facebook groups – which is precisely where much of the most pernicious conspiracy content resides. Even if the Oversight Board rules that a particular item be taken down, Facebook has no obligation to act but must consider whether it would be “technically and operationally feasible” to do so. Sir Clegg indicated in a radio interview that Facebook would only feel compelled to act if there is “an impending risk of real-world violence”.

Mr Collins thinks that:

“Facebook has met the speech requirements of nearly every repressive regime in the world while simultaneously failing to control harmful speech in democracies…If we want to stop division, misinformation and hate, we need to demand independent oversight and meaningful regulation of Facebook.“

The problem with that is that there is no general agreement on what meaningful regulation would look like – and it is unlikely that regulation in one country would work at all. It would have to be a universal regime – and the only way that that might come about is if the USA and the EU team up to regulate in unison. That, in my view, is now quite possible.

In another development, Apple has decreed a new privacy policy which will prevent Facebook from requiring iPhone app makers to feed it their users’ personal data so that it can accurately target ads. This could cripple Facebook’s mobile advertising machine. Mobile analyst Eric Seufert reckons this could cost Facebook 14 percent of its revenues. On the other hand, the company reported a 58 percent increase in annual profits last week. Even so, this may not be Mr Zuckerberg’s year.

What will Joe do?

In his presidential inauguration speech Joe Biden expressed his determination to address “lies told for power and profit”. Most commentators took that as a jibe at social media. He has let it be known that he is not a fan of Facebook nor of Google’s political advertising policy.

On Tuesday, the New York Times published a piece by technology correspondent Kevin Roose which accused millions of Americans of embracing “hoaxes, lies and collective delusions” before questioning how to unite a country where these millions “have chosen to create their own version of reality”. Mr Roose has taken it upon himself to consult his own panel of experts to determine what actions the Biden administration could take to help fix our truth-challenged information ecosystem.

One luminary wants to establish a truth commission to determine exactly what happened on 06 January and who was involved. Another opinion leader wants Mr Biden to create a task force to tackle disinformation and domestic extremism to be led by a reality czar. This task force could also meet regularly with tech platforms and push for structural changes.

Mr Roose’s experts also recommended the Biden administration to push for access to the inner workings of social media algorithms used to rank feeds and recommend content. That is all very well, but it transgresses the fundamental notion of the legal ownership of intellectual property on which American capitalism is founded. If the Federal government can seize Facebook’s code, why couldn’t it seize Tesla’s battery technology or Moderna vaccine technology come to that?

The problem with all this is that the cure may turn out to be far worse than the malady. All these initiatives involve some contraction in the realm of free speech by giving the self-righteous the ability to gag the informationally enfeebled. In my view, the way to counter conspiracies is to promote critical thinking – something which appears to be in retreat across the West right now. Is that probable? What is the evidence for that? Whose interest does it serve for people to believe this? Unfortunately, in the age of wokeness, such questioning is discouraged in favour of no-platforming those who do not share the moral certainty of those who believe there are absolute positions which do not permit disagreement or even nuance.

You cannot change people’s minds just by asserting that they are wrong – even if backed up by a reality czar (whatever that might be). The social media titans wield huge power not because they propagate disinformation but because they permit people to download the contents of their heads – which is often nonsense, and sometimes malicious nonsense.

Such is life.

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An old friend of mine who is an enthusiastic Fitbit user tells me that by the end of Dry January his average resting pulse overnight had reduced from 65 to 55 beats a minute. Sobering stuff. I don’t do Dry January – but I do do Lent…

Another friend of many years, a contemporary at 62 years old, is having his first jab today. Apparently, the London borough where he lives is so ahead of schedule that they’ve already done all the over-65s and are now working through our demographic. He asked the surgery in question whether he would be having the Pfizer or the Oxford concoction. The reply was that they didn’t know. (I presume there are labels on the vials which are decanted into syringes – but nobody seems to have bothered to read them).

In an ideal world we would have choices in our healthcare and indeed in our vaccination programme. Personally, I’d prefer the Oxford elixir because it supposedly stimulates T-cell production as well as antibodies. No doubt there would be some people who would push it too far: I’ll go for the Moderna with just a drizzle of Sputnik…

Last year I had a blood test. While the doctor’s receptionist vouchsafed to read me my cholesterol level over the phone, she told me she was not permitted to email me the full printout for my perusal – so I shall never know what my triglycerides were like, and so forth.

In Israel, and elsewhere, you can log into your own medical records. They treat people like adults there.