Why Washington can’t just fix Facebook

Reporting on Facebook's misdeeds from The Wall Street Journal has academics and regulators alike clinging to solutions that are both elusive and insufficient.

Mark Zuckerberg

In 2019, Mark Zuckerberg championed the future of privacy at Facebook's F8 conference.

Photo: Amy Osborne/Getty Images

The wheels of Washington's rapid response machine have been turning on overdrive for the past week as lawmakers and the tech criticism industrial complex have rushed to react to an endless stream of damning reports coming out of The Wall Street Journal's Facebook Files project.

Sens. Richard Blumenthal and Marsha Blackburn announced a new "probe" into Facebook's "negative impact on teens" after the Journal reported that the company knew Instagram was warping teen girls' self-images. Common Sense Media called for Mark Zuckerberg to testify before Congress — yet again — and wider condemnation poured in from the company's detractors.

The question is, as ever: What can Washington do about this? The answer? Not much.

It's not that there's nothing that can be done to make change. It's that there's so very much to be done, but of all of the options on the table in Congress, it's not clear that any actually meets the moment.

Take Section 230, which protects websites from liability over what its users post. Meaningful change has been hard to come by in part because of politics: Republicans want to use the law to keep more conservative content up, and Democrats hope to pull down more misinformation and online harm. When lawmakers did get together to amend the law in 2018, to curb sex trafficking, unintended consequences for legal speech inevitably emerged.

Even if lawmakers did somehow link arms across the aisle to pass legislation, much of the problematic Facebook content the Journal highlighted in its reporting would still have protection under the First Amendment. In general, letting celebrities post misinformation would make for thin gruel for a lawsuit, even by users who might have experienced some harm from what they read. And there's nothing illegal about providing a platform for people to show off fantastic lives and bodies that may shred teen viewers' self-esteem.

Facebook probably wouldn't want to spend time and money to fend off all that litigation, and would likely suppress a lot of perfectly fine speech in response. But its riches make it one of the few social media sites that could actually afford to defend itself, if it chose to. In other words, a kneejerk change to Sec. 230 could knock down the rival services that Facebook is already trying to beat — without doing much to dent the world's most popular social network.

New privacy laws, while critical in a general sense, would be similarly inadequate here. Despite broad bipartisan interest in protecting kids online, there's little momentum so far behind a proposed revamp to the law that limits collection of kids' data when they're under 13. Even if there were support for those reforms, that would solve a wholly different set of problems, independent of the body-image issues, anxiety and depression among young Instagram users the Journal described.

Of course, there's always antitrust. A bipartisan package of House bills seeks to rein in the competitive practices of Big Tech companies including Facebook, while the Senate is developing its own approach in the meantime. The Federal Trade Commission, meanwhile, is hoping to get past a judge's early skepticism and win a breakup that's upheld on appeal.

But even if Facebook, Instagram and WhatsApp were separated, each individual platform would would still have more than 1 billion worldwide users. Global moderation difficulties would persist, particularly on WhatsApp's encrypted chat, and the companies would still have to deal with the reality that objectionable content is sometimes what keeps users on the service.

Splitting the businesses apart would also mean the effort to address these issues would be fragmented. A fragmented response might be preferable to a unified one that buries evidence under the rug and where Mark Zuckerberg calls every shot. But if Facebook, Instagram and WhatsApp were broken up, there's little reason to think each individual company would commit to the expensive and time-consuming studies the current company was burying in the first place.

So, with current legislative solutions proving both elusive and insufficient, what can be done to force Facebook's hand in correcting the harms the Journal — and Facebook's own employees — have repeatedly documented? One pressure point might involve pushback from other gigantic tech companies, including Apple.

As the Journal reported, Facebook was aware of an ongoing issue of human trafficking taking place on the platform, but didn't take broad action against posts from these traffickers until Apple threatened to remove the app from its App Store.

"In an internal summary about the episode, a Facebook researcher wrote: 'Was this issue known to Facebook before BBC enquiry and Apple escalation?'" the Journal report reads. "The next paragraph begins: 'Yes.'"

The two behemoths are already engaged in a trillion-dollar privacy war, where Apple holds near-complete control over whether Facebook's precious apps can actually reach users. The device-maker has blocked updates when it was displeased, and once even suspended Facebook's internal testing apps entirely after the company was caught evading Apple's App Store policies. When it comes to making Facebook flinch, Apple may hold stronger cards than any single lawmaker or even head of state — not that Apple is perfect.

What also comes through loud and clear in the Journal's reporting is the one thing Facebook executives care about almost as much as they care about growth: avoiding bad press. That is, the Journal argued, a big part of the motivation behind XCheck — a platform for high-profile Facebook users that has, at times, enabled those users to get away with conduct that ordinary users could not. "Facebook designed the system to minimize what its employees have described in the documents as 'PR fires,'" the Journal wrote, "negative media attention that comes from botched enforcement actions taken against VIPs."

Those PR fires often extend from company leaks or journalists digging up enforcement errors. But if Washington were to require more auditing and transparency from companies like Facebook, or even make it possible for researchers to study the platform without threat of legal repercussions, a lot more of these issues might come to light — and they would be a lot harder for Facebook to cover up.


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