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Facebook Chided by Review Board Over Vague Rules in Trump Case

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·7 min read
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(Bloomberg) -- When Facebook Inc. asked its independent oversight board to weigh in on the January suspension of Donald Trump, the social network aimed to deflect the responsibility -- and some of the criticism -- for the final ruling to the panel, assembled in 2020 to review the network’s most controversial and challenging content decisions.

Instead, the board lobbed the responsibility right back to where it started: At Mark Zuckerberg’s feet.

Facebook’s Content Oversight Board, a group of outside lawyers, journalists and politicians, issued its long-awaited ruling on Wednesday, upholding the company’s freeze of then-U.S. President Trump’s account over his posts that helped fuel a destructive riot at the U.S. Capitol on Jan. 6. The panel agreed with the suspension, “given the seriousness of the violations and the ongoing risk of violence.”

But the board had harsh words for the company itself, criticizing the tech giant for policies that are too vague and enforcement that is often confusing and lacks transparency. The panel chastised Facebook for trying to avoid responsibility for Trump’s “indefinite” suspension by asking the board to confirm it, and instead said that Facebook should decide whether or not Trump’s account should be reinstated.

“In applying a vague, standardless penalty and then referring this case to the Board to resolve, Facebook seeks to avoid its responsibilities,” the Oversight Board wrote on its website. “The Board declines Facebook’s request and insists that Facebook apply and justify a defined penalty.”

The rebuke was particularly sharp coming from an organization created by Facebook for the express purpose of diverting the burden of accountability for the most difficult decisions -- and may undermine Zuckerberg’s longtime contention that companies shouldn’t be the arbiters of truth on their own networks.

“This is more just kicking the can down the road,” said Katie Harbath, a former Facebook policy executive and the Bipartisan Policy Center’s election fellow.

The panel also urged Facebook to take a closer look at the social network’s design and the potentially harmful impacts that its algorithm -- which is built to reward posts that generate a lot of conversation, whether positive or negative -- may be having on the broader political discourse and misinformation.

The company, which has 195 million daily users in the U.S. and Canada and 1.88 billion globally, should undertake a comprehensive review of its “potential contribution to the narrative of electoral fraud and the exacerbated tensions that culminated in the violence” in Washington, the board wrote. “This should be an open reflection on the design and policy choices that Facebook has made that may allow its platform to be abused.”

Though it found Facebook was justified when it yanked Trump’s ability to post to his 35 million followers, the board primarily took issue with the company’s move to ban him indefinitely, a punishment that isn’t part of the company’s formal rules. Facebook’s current policies offer a handful of different punishments for rule violators, including a temporary suspension for a set amount of time, or a permanent account ban.

“They can’t just invent new, unwritten rules when it suits them,” said Helle Thorning-Schmidt, a board member and the former Prime Minister of Denmark, on a press call Wednesday.

The panel said it “insists” Facebook come up with a new punishment for Trump that aligns with the company’s stated policies, and recommended that the company make a more definitive decision on Trump’s account within six months.

Before protesters stormed the Capitol and Trump was booted off Facebook, the company -- along with other networks like Twitter Inc. and Google’s YouTube -- had given him wider latitude to share controversial content and misinformation around the U.S. election. Facebook rarely fact-checked his posts, arguing that messages from world leaders and politicians are inherently newsworthy and thus not eligible for fact-checking. In kicking the decision back to company, the Oversight Board did acknowledge that debate -- should Trump, and other high-profile public figures, be held to the same rules and standards as other users?

One recommendation from the board addressed this question. The panel said that Facebook should offer a more transparent method of policing high-profile political accounts like Trump’s, saying Facebook’s “newsworthiness” policy -- a vague carve-out in the rules that means some violating content is left up on the service because it has news value -- needs more clarity.

Facebook should “produce more information to help users understand and evaluate the process and criteria” for when it applies this policy, the board wrote, and also recommended the social network “rapidly escalate” political posts from highly influential users to a special staff of content reviewers. “These staff should be insulated from political and economic interference, as well as undue influence.”

Still, the panel cautioned that newsworthiness alone shouldn’t be a reason to leave up a dangerous post. “Considerations of newsworthiness should not take priority when urgent action is needed to prevent significant harm,” the board wrote. The board also urged the social media company to publish a new policy outlining how it should respond to crisis situations, including a requirement to review its decision within a fixed time frame. It encouraged the social media giant to continue to suspend or delete accounts of political leaders who pose a risk of harm.

Kara Frederick, a former Facebook employee and current fellow at the right-leaning think tank Heritage Foundation, said criticism that Facebook’s policies are too vague is valid. “When we were working at Facebook, we used to say it was like building an airplane in mid-flight,” she said. “I see the manifestation of that now in their content moderation policies.”

The board was clear Wednesday in its stance that the company itself needs to make these calls, rather than relying on the outside panel to write the rules. Even if Facebook does create new global policies for elected officials or political crises, the Menlo Park, California-based company is likely to face heightened scrutiny over whether it is evenly applying those standards in different countries. Facebook would have to make carefully calculated decisions about which political standoffs, revolutions, elections and protest movements are dicey enough that a government leader’s posts could impose harm. The ruling was already generating pushback from lawmakers about the company’s uneven enforcement.

U.S. Representative Ken Buck, a Colorado Republican, Wednesday blasted the company for suspending Trump while leaving a page from Syrian President Bashar al-Assad intact.

“It should be noted that Facebook permits a Bashar al-Assad fan page with over 250k likes to continue posting,” Buck said in a statement. “The page’s administrator is located in Syria, has been active since 2011, and has repeatedly promoted falsehoods about the pro-democracy movement in Syria and downplays the human rights abuses committed against the Syrian people during the Civil War.”

It’s now up to Facebook to determine how to handle Trump’s account, and the board underscored that Facebook should assess the current risk of violence before ending his suspension. Facebook’s head of global policy, Nick Clegg, acknowledged the ball is in the company’s court.

“We thank the @OversightBoard for the care and attention they gave this case,” he wrote on Twitter. “We will now consider the board’s guidance and develop a response that is clear and proportionate. In the meantime, Mr. Trump’s accounts remain suspended.”

Facebook’s decision could have a broader impact on whether or not Trump re-appears on other digital platforms. Twitter has said that Trump’s ban is permanent regardless of Facebook’s call; Snap Inc. said that Trump is also permanently banned from Snapchat. But Trump is still suspended indefinitely from YouTube, which hasn’t made clear what it plans to do with Trump longterm.

Zuckerberg will likely make Facebook’s final call. As chief executive officer, he has been open about his role in policing Trump’s account, and Clegg has said that it’s ultimately Zuckerberg’s decision, even if he does take input from others within the company.

It’s possible that whenever that decision is made, it could also be submitted for a ruling by the Oversight Board. Said Michael McConnell, a board member and Stanford Law School professor, on the prospect of the Board reviewing Trump’s suspension again: “I’d say it’s certainly a substantial possibility.”

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