What Facebook should fear most isn’t future regulation—it’s what’s already here

Under scrutiny.
Under scrutiny.
Image: EPA-EFE/Shawn Thew
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While Facebook CEO Mark Zuckerberg got grilled by US House and Senate members last week, president Donald Trump signed a bill that begins to whittle away at the legal loophole that made Facebook one of the most powerful tech platforms in the world and made Zuckerberg worth $64 billion.

The bill, formally called the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), makes websites liable for user generated content that intentionally facilitates or promotes sex trafficking. It was sparked by the investigation and eventual shutdown of the website Backpage.com, which hosted and edited ads for sex workers and was charged with facilitating prostitution. FOSTA is the first major revision to section 230 of the Communications Decency Act passed two decades ago that allowed websites such as Facebook, Google, and Twitter, to flourish by protecting them from civil liability for what people posted on their sites.

As Trump sat at the Resolute Desk signing the bill in the Oval Office April 11, he seemed upset it was so difficult to get the new legislation to his desk. “This was a tough one. It shouldn’t have been tough,” he said. “I guess people have reasons [to oppose the legislation], but I personally don’t understand those reasons.”

Let us explain, Mr. President.

Facilitating prostitution

Proponents of a free and open internet lobbied hard against FOSTA because it took away a key freedom that has allowed the growth of sites such as Facebook that thrived on publishing user-generated content without much moderation. Until Facebook came under fire for distributing “fake news” and running Russian-backed political ads, like most of the tech industry it, too, did not initially favor FOSTA.

With Trump’s signing of the bill, however, every website now must figure out whether anything on their platforms falls into the prohibited category of facilitating prostitution. This is pretty easy for traditional publishers, which have editors and ad departments that vet everything published, but it’s not possible for a company like Facebook, which has 2.2 billion monthly users posting billions of pieces of content every day ranging from dog photos, to memes, and just about anything else. “The major internet companies will have to double and triple down efforts to screen out liability under FOSTA,” says Eric Goldman, co-director of the High Tech Law Institute at Santa Clara University School of Law.

This may help explain why Zuckerberg was so evasive in the Senate when he was asked whether Facebook bears responsibility for the content posted on the site: “I believe the answer to that question is yes,” he said. But in front of the House committee the next day the CEO waffled when asked if Facebook was legally responsible. “Well, Congressman, I’m not familiar with how the term is legally used,” he said.

Zuckerberg has already committed to having 20,000 people vetting security and content on the site by the end of the year, but even that kind of number won’t allow it to vet everything. Each moderator would have to take responsibility for at least 100,000 accounts, a ridiculously impossible number to vet. Facebook is working on artificial intelligence tools to help, but these are years in the future, and are still likely to suffer from data bias.

Smaller websites, unable to afford the kind of monitoring Facebook can, are already shutting down parts of their sites. As Allison Schrager reported for Quartz:

The language of the law targets any website that advertises sex, even between consenting adults. In response to the new law, The Erotic Review shut down its US website, Craigslist Personals is no more, Backpage is gone, and the future of similar sites remains uncertain.

Because FOSTA covers very specific content, Facebook feels it can live with the law. Overall, however, section 230 freedoms allow the company to set its own standards and policies for what content is published. Facebook tends most often to act reactively; for instance, in Germany, it’s illegal to deny the Holocaust, so Facebook blocks that kind of material in Germany once someone complains. In the first half of last year, the company restricted access to 1,051 such items. The company’s main goal is to ensure users have a positive experience on the site.

Not just sex sites

The new 230 restrictions, however, will not only affect sex sites. “The newly enacted law holds all internet services accountable for some portion of user content,” Goldman says. “And because internet services can’t figure out which content complies and which doesn’t, the law is actually regulating everything.” Without adequate AI tools or enough people to review content, the law is forcing all websites into self-censorship. “That is why it is so pernicious,” Goldman added. He predicts smaller websites will either go out of business or never start up.

That will give the entrenched players even more power to set advertising rates, given they are the only ones with enough money to even begin to monitor online content. And that, Goldman points out, will lead to even more questions about monopoly power and anti-trust enforcement procedures.

But the real existential threat to Facebook, Goldman says, is the current campaign to attack so-called “fake news.” Malaysia last week passed a “fake news” law placing a penalty of $100,000 and up to six years in jail for publishing news, data, information or reports that are “wholly or partly false.” How can any site with user-generated content enforce that?

Other governments outside the US are increasingly censoring speech on social media. Last year Uganda announced the government would scan Facebook profiles and other social networks to find posts that criticized the country. Such efforts—aside from restricting the free dissemination of news—threaten to make social media networks essentially useless for consumers.

The US, of course, retains a First Amendment right to free speech and freedom of the press, but the early moves to force websites to take responsibility for a portion of their content is likely to have a chilling effect. Without the exemption that made Facebook possible, the US would probably not have the plethora of online review sites like Rotten Tomatoes, Foursquare, or Yelp.

And certainly, Mr. President, we would not have Twitter.