Introduction
The openness and freedom of the internet are under attack, perhaps more so today than ever before. For all the good, positive things the internet has brought since its inception on 1st January 1983 (though most consider the invention of the world wide web, by Tim Berners-Lee, as the functional beginning of the internet as we know it), it has surely given birth to just as many bad offspring as good.
On the plus side, old communication barriers were smashed as snail mail bit the dust of antiquity and irrelevance, and email was conceived.
Business, government, education, healthcare, the way we interact with our friends and family, have all changed beyond recognition in the last few decades leading many to call this the Age of the Digital Revolution or the Industrial Revolution 4.0, as it has become known.
There is no doubt that the internet has changed our lives irrevocably and has been a major driver in an ongoing socio-evolutionary process that appears to be gathering speed and is now, arguably, running awry in some spheres, out of control even, something proven by the fact that a recent survey showed that up to 79% of users have serious concerns about the their own privacy online.
Much of the immense socio-political upheaval and changes seen across the globe in recent years have been driven by the internet and in large part, by the tech giants (either directly or indirectly) that now dominate the internet and an increasing proportion of our lives.
The big 5 (Facebook, Twitter, Google, Amazon and Apple) are collectively worth in excess of $7 trillion and this phenomenal growth shows no sign of slowing down.
In fact during 2020, as the pandemic raged across the planet, their influence grew at a staggering and alarming rate such that between them they propped up the stock-market which soared to new, previously unseen heights as the vast majority of S&P 500 companies languished and struggled through the year.
But it’s not the net worth of these giants that poses a problem per se. It is the growing influence of the A.I. driven algorithms the tech companies use to fine tune individual messaging and how they utilise the personal data collected on users.
Companies that set out with such noble aims, that of connecting people and bringing one another together, have become too large to control and to police, even for the companies themselves.
The January 6th storming of the Capitol is perhaps the most recent and insidious example of how social media platforms have been used to propagate and disseminate dangerous content that has put not only lives at risk, but potentially the stability of nation states which are being undermined by a constant stream of misinformation and mistrust.
Trust in Western governments has been dropping consistently over the past few decades, and this falling governmental credibility can, anecdotally at least for now, be equated across nations to public compliance (of restrictions) during the current pandemic. And that trust has, at least in part, been fostered by the burgeoning amount of misinformation present online.
But more than that, elections across the free world have been ‘hacked’ time and again rendering the possibility of a ‘free’ and ‘fair’ election, less and less likely. Companies such as Cambridge Analytica and SCL, have exploited the algorithms social media platforms use against their own users in order to manipulate them and bring about political change on a national scale for the highest bidder.
This undermining of democratic institutions for profit has weakened democracies everywhere and led to a rise in the prevalence of authoritarian and hybrid regimes.
Online radicalisation is also a growing problem globally and has already led to the attempted genocide of the Rohingya’s in Myanmar and countless lone-wolf terror attacks in cities and towns across the West.
Whilst a free and open internet is a desirable state that most would aspire to, this ideal has been subverted and twisted by ‘bad actors’ in many fields who take advantage of the openness of the online environment to peddle fear, uncertainty, falsehoods and a vast array of criminal enterprises.
Internet providers and social media platforms are victims here too, as they are being exploited by said ‘bad actors’ to further their motives. But in as much as they are victims, it is argued that they should also accountable to some degree, for not shoring up their own defences in order to prevent against this exploitation.
The question is how can this be achieved?
In this article we want to take a look specifically at two issues — social media and internet regulation — and ask what can be done legislatively and internally (by the companies/platforms themselves) to combat these problems areas, if indeed there is any appetite for such regulation, and can it be done quickly enough to forestall any further socio-political degradation?
How can regulation be achieved?
The internet is often held up to be the last bastion of true free speech. And, one could argue that that is indisputable. If you have a mind to, you can say almost anything at all online about almost any subject and expect very little in the way of censure or other consequences (if ordinarily appropriate).
And let’s be fair; this is the way many people like it!
And of course, that is the beauty and the pull of this freedom — everyone’s opinion counts and everyone can engineer for themselves their own soap box to shout from.
What’s not to like? Right?
But that beauty is only skin deep, and beneath the surface the ugliness lives hidden in plain sight. Increasingly the very liberality of the internet as was conceived is seen to be problematic and there are calls for much greater regulation on internet content.
What cannot be agreed upon though is what is and what is not, acceptable.
Ultimately each country needs to patrol its own borders, and the degree of censure will vary hugely and will not be a product (initially, at least) of the laws of the state, but of the culture of the country in question.
Thus, what may pass as ‘bad taste’ in one nation may be perfectly acceptable in another.
One example of this happened recently with the new Manchester United signing Edinson Cavani, an Argentinian footballer who received a 3 match ban for a post put out on Instagram where he used a nick-name, that in Argentina is a common term of affection, but in the UK was deemed racially offensive.
Whilst that example is a rather mild one by comparison, it helps to illustrate how culture needs to be a driver in internet regulation. Culture will dictate what content is deemed unacceptable, offensive, dangerous or subversive and will need to be removed/censored and will also help to apportion the liability and subsequent consequences for those who have broken the rules.
The culture aside though, the first step in any successful regulatory process surely needs to be co-operation across a range of governmental departments, the (internet) providers and the end users.
Without all interested parties working together to find an accord, any regulatory push is surely going to fall short.
With the best will in the world, politicians are not always the most switched on people when it comes to knowing where current cultural trends are headed, particularly with the young.
End users should then be a vital part of this process in tracking cultural shifts and delineating new avenues of potentially harmful or dangerous content that should be removed/censored.
But end users can only help point the way. It is the platforms and providers who need to supply the technological expertise to remove identified material and gather the evidence, under legal guidance set by the governments and lawmakers, in order to apportion that liability and accountability when needed.
It sounds simple, but in reality this is extremely complicated, likely to be time consuming and expensive to organise. In many nations apathy for such regulation may be the overwhelming feeling, especially with so many other more pressing issues at play.
And would it ever really work across nations, each with a different standard of regulation?
Is there another option?
Well, it seems there just might be…
The Supreme Court of Facebook
The supreme court of Facebook is a quasi-independent body recently set up by Facebook to rule on what the Washington Post calls ‘thorny issues.’
It is a 20 person panel (soon to be 40 persons) of globally wide ranging people including ex-Prime Ministers, journalists, academics, writers and human rights activists as well as 4 board members chosen by Facebook themselves.
All those selected are known Free Speech advocates and they are set to rule over a diverse range of issues with the aim of setting a global minimum standard of acceptability.
Their first test case is to be….you’ve guessed it….whether Donald Trump’s Facebook ban was correct, and whether he should be allowed back.
Their decisions are to be binding. Facebook CEO Mark Zuckerberg cannot overturn their decisions and he has agreed to stand by them.
As the Post goes on to say in an opinion piece, the board will decide (in Trump’s case initially),
“…how Facebook should take offline context into account in its online decisions, which in turn will inform how the company should treat other elected officials and influential figures. Should they be subject to laxer standards, as the platform previously thought, to allow voters full information? Or should they be subject to higher standards, because they can do the most harm?”
Whilst governments should be setting the legal standards for the prevention of illegal or dangerous speech, it is true to say that many nations (and governments) are only too happy to set that bar very low, quashing much of what we in the West may call freedom of speech.
If the global platforms, such as Facebook, can set online content standards that apply regardless of international borders and are maintained through transparent and considered decisions by an independent board of culturally diverse experts then so much the better.
Will this mean that some governments then take this as a green light to do nothing about regulating online behaviour?
Of course. Some will take the easy option, there’s no doubt! But this shouldn’t be taken as a get out of jail free card for inept or unwilling governments because that’s not what it is.
The success, or not, of this board, will in the end determine it’s own future. If it goes well then one might confidently predict that its remit may be widened. If not, then it will likely fade away without trace.
So whilst Jack Dorsey ponders the consequences of Twitters decision to ban Trump permanently, Facebook have taken the lead.
The jury is still out on how effective and binding this all might be. After all, Facebook have not historically been the virtuous partners they might like to paint themselves to be…
More than a decade ago now, the Federal Trade Commission entered into a consent decree with Facebook designed to prevent the platform from sharing user data with third parties without prior consent.
And yet, just a few years later they (conveniently) forgot about that and openly shared user data with companies such as Cambridge Analytica.
It’s important to note Facebook are not alone. Other social media platforms, such as Twitter, have also resisted the need to clamp down on misleading content, hate speech and conspiracy theories.
Let’s watch this space.
What can legislators do to bolster this process?
Whilst the move taken by Facebook discussed above is welcome, as already discussed, it will not by itself be enough to curb the tsunami of illicit content online. Lawmakers need to do their bit and to do it quickly and hope that they involve the providers and social media platforms in the process.
Legally, the place to kickoff the change is with Section 230 of the Communications Decency Act, 1996, which states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” All of which basically means that any service or interactive service provider that hosts or republishes speech are protected against a range of laws that might otherwise be used to hold them legally responsible for what others might say.
Passed in the last Century, the Department of Justice have recently reviewed and attempted to update this Section of the Act, the last series of changes taking place (as far we know) last February, 2020.
But the reviews have resulted in minimal change to what is now a woefully outdated and weak law that needs far more than just a simple review to remedy the shortcomings that leaves the many victims of online crimes with little or no chance of legal redress.
For the platforms themselves, surely active involvement in such a process would indicate a willingness to address and close the many legal loopholes (behind which they can now hide) in favour of a more equitable and balanced legal position. This would not only be a PR coup for the platforms but would hopefully leave social media a far more truthful, fairer and sociable place, perhaps as it was intended to be.
That said, fixing Section 230 will be no quick or easy job. It could be argued that Donald Trump specifically targeted this law, with the aim of deregulating the internet further, all the while hammering social media platforms for removing his own content.
The new Biden administration has expressed a desire to take the opposite view, pledging to tighten it up to make the companies more liable for the content posted on their particular platform, and this is something that Facebook et al should be concerned with given that far-right content, such as that that led to the January 6th riot, can generate the highest engagement online.
And whilst bipartisan support is notoriously hard to garner in Congress, Biden is, in this instance, inheriting momentum that is calling for positive change, particularly in the wake of the pandemic which has been the subject of so much misinformation.
Internet neutrality is also coming under fire. The previous administration favoured deregulation which allowed the service providers to run a tiered service system supporting faster speeds for big business and slower for personal users.
Biden’s team are in favour of a return to the Obama-led policy of net neutrality where everybody is treated the same, something of vital importance to the many families right now struggling to educate their kids at home.
Once again California has taken the lead on this by announcing at the end of February that it will start enforcing it’s own net neutrality laws that had been previously blocked, thereby setting the stage for other states to follow suit.
On a wider front, there is a growing clamour of support for a US-EU digital alliance to counter the ever increasing volume of online threats.
Suggested by Robert Knake writing for the Council on Foreign Relations (CFR) last September, it proposes weaponising digital trade for Western Democracies by ‘Creating a Digital Trade Zone to Promote Online Freedom and Cybersecurity.’
Such an arrangement may provide a useful buffer that not only protects consumers and competition, but also has the effect of protecting industrial capitalism itself.
And with that in mind, and riding the wave of bipartisan support mentioned above, on March 4th 2021, a group of Senators introduced a bill aimed at fostering a joint technological development programme together with (democratic) allies that aims to counter the rising technological threat that they believe China poses.
As already discussed, Western governments are struggling to legislate effectively while faced with the relentless pace and the constant emergence of novel digital technologies and the associated speed of change.
The suggested trade zone and joint development programmes would provide a buffer that may well allow democratic lawmakers everywhere some much needed breathing space; a chance to re-asses what this ‘brave new world’ can bring and how it might be regulated on much wider, pan-national front.
But bringing the two sides together may prove to be difficult however. Thus far the EU has taken a much tougher stance on internet regulation, most recently (in December) with the Digital Services Act which targets online content, and the Digital Markets Act which sets behavioural standards for platforms to abide by.
The EU have been forced into these actions largely due to the apathy of recent U.S. administrations to the online problems faced by Western democracies.
In recent days there has been some movement on this. On 3rd March 2021 Virginia Governor Ralph Northam signed into law privacy legislation, which comes hot on the heels of California who have done the same.
As Tom Wheeler suggests in a recent Brookings Report, this situation is an anomaly because ‘U.S. companies have a global leadership position in digital technology, products and services — but the United States has shown little policy leadership.’
Whether our political leaders, with all they already have on their plates, can find the energy and motivation to sit down and discuss this possibility, one will only find out in time.
But surely this is a valid, workable option that must at least be opened for discussion.
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