Power

Facebook’s Supreme Court is open for business

The oversight board has a plan and a process for reviewing the platform's thorniest cases. How much power it has is still hard to know.

Facebook’s Supreme Court is open for business

The biggest question facing the oversight board is exactly how much power it'll have.

Image: Alex Haney / Unsplash

After months of preparation and internal discussion, Facebook's oversight board is getting ready to hear cases.

There are three ways the board will receive cases for review. Users who have had their content taken down, and had their appeal to Facebook rejected, can now appeal their case directly to the oversight board. (They can't submit others' content, though. The board cited privacy reasons, but said this is something they're working on solving.) Facebook can also refer cases itself. In those instances, the board itself decides whether to review the cases, much like the Supreme Court chooses which ones it accepts, and tacitly reinforces existing decisions by rejecting cases. And in particularly urgent scenarios, Facebook can send cases to the board for "expedited review."

"The board has sole discretion to accept or reject cases that are referred from Facebook through this process," board co-chair Jamal Greene said on a call with reporters, "apart from expedited cases, which the board will always consider."

As for what rises to the bar of expedited review, Greene said things have to meet two criteria: significance and difficulty. Significance means content has to have real-world impact, with potentially serious consequences. Difficulty means there must be strong arguments both for leaving it up and for taking it down.

In every case, a five-person panel will be convened to rule on the case, and at least one of those five will be from the geographical region most relevant to the content in question. For normal cases, co-chair Helle Thorning-Schmidt said, the whole process will take "a maximum of 90 days." She was careful to say, too, that the board's relatively slow deliberations don't give Facebook cover to act slowly. Even in expedited cases, she said, the board may take a few days to consider the context, translate when necessary, and make a decision. Facebook, she said, needs to move more quickly.

As cases are assigned, Thorning-Schmidt said, the board will post information on its website. "Website decisions will follow the same format," she said, "presenting the key information used by the panel to make a decision with an explanation of how the panel reached its final conclusions." There will be a period for public comment for every case, too, in which the board solicits third-party thoughts from experts and anyone interested.

The biggest question facing the oversight board is exactly how much power it'll have. And so far, no one seems to know, exactly. In individual cases, its rulings will be binding: If the board says the post should come down, it comes down. Greene also said he hopes the Board's rulings will set precedents: "We want our decisions to be influential and have impact beyond the single case. We will therefore prioritize cases that have the potential to impact many users, or are of critical importance to public discourse, or raise important questions about Facebook's policies."

But "hopes" might be the operative word here. Facebook's Brent Harris echoed that sentiment about precedent, saying that "for similarly situated content" to things the board has adjudicated, "Facebook will also seek to apply that same resolution and same decision." But he cautioned that deciding what qualifies as "similarly situated content" is hard to know. In general, outside of individual, up-or-down cases, the board seems to be only as powerful as Facebook wants it to be.

Thorning-Schmidt also said the board will provide Facebook with broader policy recommendations, but noted that Facebook isn't required to implement them. Facebook "has committed to consider these recommendations as part of their ongoing policy development process," she said, "and must publicly respond to them."

Another challenge for the board will be wading through the inevitable torrent of referrals and appeals from users, as Facebook and Instagram both roll out tools for users to submit things to the board. Facebook's Brent Harris said the company has built a new case-management tool "so the board members have a secure and privacy-protective way of selecting, reviewing, hearing and making decisions from anywhere in the world."

The board has officially started selecting cases, and Facebook has begun selecting its own cases to refer to the board. The timing of the launch means the board's virtually guaranteed to not weigh in on the U.S. election, which Greene said wasn't intentional but also wasn't the board's biggest concern. "Of course, the U.S. election is very important," he said. "But it's also important to recognize that there are many, many, many other significant challenges impacting Facebook and Instagram users around the world."

The board's members made clear that they are not a substitute for Facebook's moderation team, nor are they a real-time adjudicator of thorny issues. Their job, except in rare cases, is to think longer-term and higher-level about what's happening on those platforms and how it can be made better. And to make Facebook listen.

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