The World of Fifty (Interoperable) Facebooks on SSRN

I have uploaded The World of Fifty (Interoperable) Facebooks (forthcoming in Seton Hall Law Review, Vol. 51, No. 4, 2021) to ssrn. Access it here. Below, I paste the abstract:

This essay envisions a “world of fifty facebooks,” where numerous companies would offer interoperable services, similar to the one currently provided by Facebook Inc. As is the case with telephones, where customers of AT&T can call and text those of T-Mobile or Verizon, users of A-Book should be able to find, communicate with and see the content of customers of B-Book, C-Book, etc. Facebook Inc. should be obliged by the law to allow potential competitors to become interoperable with its platform and to grant them access to its network. Today, Facebook Inc. uses its artificially created monopolistic position to impose excessive costs and unnecessary harms on consumers and on the society.

A contribution of this piece is a new theory of “price” that Facebook Inc. charges for its services, going beyond the conventional wisdom that users pay for access with their “personal data and attention.” Instead, it argues that Facebook Inc. imposes on its users: (i) cognitive harms (emotional manipulation, risk of psychological and mental of health problems); (ii) behavioral harms (unwanted purchases, wasted time, risk of addiction); and (iii) privacy/security harms (risk of having the sets of amassed personal data stolen by hackers). The company also (iv) freerides on users’ creative content and labor. Each of these harms constitutes a higher “price” or lower quality than could be available in a competitive market. Importantly, these costs do not result from the necessary features of “a facebook” but rather from Facebook Inc.’s data-collection-heavy, targeted-advertising-driven, business model. However, less harmful models are available.

The essays surveys possible legal strategies for achieving and sustaining “the world of fifty facebooks.” As the debates about regulation of large platforms continue in the US and the EU, the piece serves as a reminder that, as a society, we face a choice. We might accept the central role that platforms like Facebook Inc. currently play in our socioeconomic lives and focus solely on taming the most abusive behaviors they engage in. Alternatively, we might embrace the fact that there’s nothing natural nor necessary about this position and concentrate on re-structuring the online power relationships. Doing so requires imagination and political will, and this essay aims at fostering both.

Facebook’s exercise of public power

In this post I want to argue that Facebook’s banning of pages, profiles and removing posts is an exercise of public power and as such should be subjected to material and procedural standards of public law and human rights.

Ok, I’m not gonna actually argue that much. But I want to defend a weaker claim: it is not obvious that Facebook’s discretion should not be limited by fundamental rights and freedoms, simply because it is a private company. Same applies to other platforms of equal social importance, like Google, YouTube and Twitter. And many other ‘private’ actors.

Context: one international, and one Polish. You probably all remember Facebook’s removal of the photo of the ‘napalm girl’ and the outcry that followed. Critics where accusing Facebook of the ‘abuse of power’ and ‘censorship’, leading the company to change its initial decision. Arguments of critics involved the fact that the photo is ‘iconic’, and that Facebook’s role in news dissemination is enormous (44% of adults in US get their news from there).

In Poland, the case is of a different political colour. In the last days, a group combating hate speech and xenophobia held a mass-scale action of reporting extreme-right wing Facebook pages, what led to the deletion of dozens of them, including pages of a member of parliament, several nation-wide organisations, some with hundreds of thousands of supporters and followers. This also caused an outcry and even made it to the national tv news in the station currently controlled by the government. Arguments invoked by the critics are essentially the same: freedom of speech, censorship, abuse of power etc. The difference is: this time Facebook’s decision got many supporters, who among other arguments claim that Facebook is a private company, acting for profit, and not only is but also should be allowed to do such things.

Now, there is a clear difference between the two cases. In the case of the ‘napalm girl’, Facebook did a ‘bad’ thing. In case of right-wing pages, it does a ‘good’ thing. There are two reasons for that classification to be widely-shared. Firstly, many of the right-wing pages contained content that might be against the law on hate speech and promoting violence. I will deal with this soon. Secondly, there is an emotional reason. Let me dwell on it first.

It just so happens that Facebook currently has a clear liberal and progressive agenda. And that this agenda suits so many commentators, probably including you and me. However, it is not clear that it will always be so. Today Facebook enjoys quite some freedom. Today liberal and progressive sells. But make two thought experiments. Imagine that Facebook would have a right wing agenda, and block extreme-left pages. Or even just liberal pages, or whatever pages that suit your worldview. Would you still be so sure that what they do is perfectly legit? Secondly, imagine that political winds change. Imagine that Trump wins elections. Imagine that suddenly there is a pressure on Facebook to change the course (‘or else we tax you high’, or ‘we grant people property rights in their personal data’, or anything else that would hurt Fb). And that society at large approves. Will we still defend Facebook’s freedom and full discretion? Or will we then say: hey, but common, everyone uses your services, you shape how people think, you have public responsibility and duty?

Emotions aside: In classical legal thinking, which still prevails in many continental legal traditions, including the Polish one, the world was neat and ordered. There were public bodies, allowed to do only what the law says they can do and holding the monopoly on the use of force; and private bodies, allowed to do everything that the law does not forbid them from doing and not allowed to use physical force against each other. 19th and 20th centuries witnessed a rise of constitutionalism, which led to the human-rights-limitation and control of the exercise of public power by public bodies.

Within that picture, Facebook is indeed a private company. It can do everything that the law does not forbid it from doing. It is not under direct obligation to facilitate freedom of speech, a right to associate, fair trial etc. However, notice three things:

Factually, Facebook’s power is enormous. With billions of people using it, billions of people trusting it with providing news, billions of people using it for organisation and communication, it can easily affect the abovementioned rights and freedoms. It might be a private company, but it holds a ‘public’ position in many senses. Why?
Even assuming that Facebook just deletes what it believes is against the law, it:
1. interpretes the law by itself, without relying on any court;
2. executes the law by itself, because it has the factual monopoly on the ‘digital force’. In the tangible world, an owner of a debate club might want to kick out a speaker from his property, but would need police to actually take him or her out. In the tangible world, one might find some banners outrageous, but destroying them would still infringe someone else’s property rights. In the digital world, where there are no ‘bodies’, and people do not hold any property in their digital content, this is legally fine, and factually easy, since Facebook unilaterally controls the platform.
However, Facebook does more than just deleting illegal content. It sets its own rules and standards, often stricter than the law. Moreover, it not only deletes stuff, but through the underlying algorithms it chooses what will be displayed to whom and how often. In this sense, if we look at it as a public space, which it in many senses is (remember social media’s role in the Arab Spring and the Ukrainian Majdan?), it is the sole legislator, the court, and the executor of the ‘law’. I does not hold a public power de lege, but it holds a de facto power perfectly imitating the one we have limited when the state is concerned.

Given all this, I think we need a debate on limiting the discretion of socially important internet platforms when it comes to policing the content displayed/allowed there. Obviously, dozens of questions arise: which ones, who would limit them, is market not enough, how would that impact innovation etc. etc? There are other private parties who exercise other ‘public’ powers elsewhere (think of FIFA, multinational corporations etc.). Should we regulate business at large, or sectors, or what? There is much to be thought through. There is already a lot written on this. Much less read on this. Questions are on the table, and I don’t have tweet-long answers.

But I simply cannot accept the claim that it is perfectly fine that Facebook interprets and executes the law, or actually does whatever it wants, because it is a private company. The power it holds is public in nature, just not yet labelled so by our analog laws. And if that does not convince you, remember: it might soon change that ‘our’ agenda sells. Just like with contracts, we need to make them when everything is fine, but will need them when something goes wrong.

When the state of exception becomes the rule

Europe got to the point when the state of exception might become the rule. If this happens, a social/political/legal response will be necessary. In my opinion, we are not intellectually prepared to give such a response. And I believe it is high time we get started. In this brief post, I sketch my idea of how this could look like.

This is an atypical post here, I treat it as a suggestion-giver to a possible EUI-wide initiative, which would connect scholars with a diverse substantial and methodological expertise/interest. However, I would obviously welcome any external cooperation, should this thing take off.

In short: in the aftermath the horrible events in Paris, France has extended the state of emergency for 3 months (90 sec explanation of what this means). We don’t know how the situation in Brussels will develop. God forbid, but it might be that as a result of another attack, or as a means of preventing it, others will follow.

No one questions the fact that we need security, that the criminals must be caught and next attacks must be stopped. However, the process might be longer and more difficult than it seems now. Next measures, based on real or just-strategic secret service reports, might add-up over the course of next months or years. I do not mean militarisation of the streets or curfew, I mean more subtle and ‘less visible’ changes: mass surveillance, arrests without warrants; something that we already witnessed in US after the Patriot Act, to name just CIA secret prisons or the NSA scandal.

If this happens, our notions of Democracy, Freedom, Human Rights or the Rule of Law will be challenged by the new factual (social and political) situation.

I think we can all well argue why this is undesirable. There might little place for argument, though.
What I think we are unprepared for is to argue: how, in this new situation, to best preserve them.
The trade-off between liberty and security is not a simple one, it is not even the correct one. What matters is not only what is done, but how it is done.

My idea, for a possible response at the EUI, would stand on two pillars: theory and facts-collection.

THEORY 1
What needs to be theorised first is the state of exception, which remains in the dialectical relationship with the ‘standard/desirable/everyday state’.
On the previous, I would go for reading:

The State of Exception by Giorgio Agamben (2005), the classic, where he analyses the concept back from Rome, through the Modernity, through the scary-but-sharp work of Carl Schmitt (Die Diktatur (1921) and Politische Theologie (1922)), WWII, to the Patriot Act of 2001 (also lecture available here);
Normalising the State of Exception by Günter Frankenberg (2014), a longer, but really thorough monograph, connecting strong insight into philosophy, political theory and law with legal analysis of what has happened after the 9/11 in EU and US.

OBSERVATORY
Another task would be data collection on what is actually going on and what media report, both on the level of ‘announced threats’ and the responses including explicit or implicit announcement of the state of exception, limiting the liberties, counter-actions etc. That would obviously lead to the enrichment of the concept.

With these two in mind, THEORY 2
Knowing what exactly is being compromised, and how to theorise it, it would be possible to reconstruct which parts of our ‘traditional’ understanding of Democracy, Human Rights, Freedom and the Rule of Law are being challenged, and prepare the path for the creative work.

Obviously, this will be much more complicated, and the scheme above might be challenged in any way, but I just wanted to show what I have in mind. And ask if anyone would be interested in doing sth like this.

I know we are all super busy, and it’s not that I have that much spare time, but I somehow have the feeling that we owe people something like this. And the more people would join, the better (and faster) this could be done. I might be wrong,

but if you’re interested, drop me an email (Przemyslaw Palka).

A few words on the refugee crisis from my Polish, catholic perspective

This is not what I ever intended to write about on this blog, but I just cannot help myself, seeing what is going on, but most of all seeing the types of comments that some people make on the net.

I dedicate this post to all my fellow Poles, to all my fellow Eastern Europeans, to all my fellow christians, and to people who, like me, according to European standards, would generally be placed under the label of ‘conservative’ or ‘right wing’.

Would anyone like to make a claim against accepting the refugees in the current situation, or a claim supporting the politics of Orban, “because those people are muslim” or “because we cannot afford it”, and try to justify this claim with christian or traditional values, I have one response: You gotta be fucking kiddin’ me.

Let me start by reminding when, in Polish public discourse, we usually use the expression ‘not to help’.

A month ago we commemorated 71st anniversary of the Warsaw Uprising. Lyrics of the Uprising by Sabaton: “1939 and the allies turned away // 1944 help that never came” well summarise the feelings most of the Poles have about the France’s and Britain’s attitude towards us during the 2nd World War. “We had a mutual help agreement, we would have helped them, while they ignored us during 1939 Nazi invasion and refused the help the City in the 1944 Uprising“. 3 millions of people died, including all the intelligentsia (what we can ‘feel’ until nowadays), Warsaw was completely destroyed. We are upset with French and British not helping us. And rightly so.

Not only demons of the past, however, fill Polish minds with skeptical feelings in these days. Russia’s activities in Georgia and Ukraine make the prospect of Putin invading Eastern flanks of EU and NATO much more probable than we thought not that long ago. The closer you are to Ukraine, the feeling is stronger, believe me. However absurd it might feel when you’re sitting in France or Italy. Our new President, Andrzej Duda, vocally makes a claim for installing of American and NATO bases in Poland. To my mind, again, rightly so. Whether you agree or no is of lesser importance here. The point I’m making is: we are afraid that, despite international agreements, they will not help us when we need that help.

And hey, guess what: right now Poland, and Hungary, and many other Eastern countries are not helping people that desperately need help. We are no better than 1939 France. We have to help them, and yet we don’t even try to do half of what we could.

“Aha!” – a 2nd year right-wing-law-student will shout – “Got you here! Because we don’t have to help them! France and UK had an international agreement with us, but we have no agreement with Syrian people!“. Bravo. Beautiful, positivistic, materialistic, relativist claim you’re making. You have a right to it, just that usually you seem to attack these positions.

Have you ever heard of God’s Law? Have you ever heard of natural law? Have you ever heard about Jesus saying LOVE THY NEIGHBOUR? Do you remember the last time mentioned that God’s Law is above any positive man-made law? When was it, ah, yesterday?

Every Christian has got an obligation to love others, to give food to the hungry, to give drink to the thirsty, to welcome the stranger, to clothe the naked, to take care of the sick and to visit those in jail. Well, now we have an opportunity. Do you remember how the Judgement will look like? Jesus will separate those who did all these to Him from those who didn’t. Whenever you did it for any of my people, no matter how unimportant they seemed, you did it for me. Read Mt 25:31-46.

And every human being has a right to live. Which we have an obligation to defend. We must protect human life! Remember the last time you said that?

By not doing whatever we can to help the refugees, we are not only being selfish, greedy, comfort-loving bastards. We are breaking the law. God’s law. The one so often used to justify political claims, btw. Now we’re braking it. We should fear hell.

“But those people are not Christian! They might be terrorists, and they will not fit into our society, they will cause social conflicts, because their culture is not based on Christian values, while that is the fundament the Europe is built on! When we let this values die, Europe will die“.

By not helping the refugees, by letting them die in Syria or tracks on our roads or drown in the Mediterranean, by bitting them up on boarders, we, the Europeans, are compromising Christian values right now. We are destroying the very foundation on which European culture was built. We. Now. Not them, one day.

And to say ‘let us accept only the Christians, keep the Muslims out’ might be the most unchristian thing I have ever heard.

“But there is data! Look at France, at Netherlands, the problems they have! Plus: I’m sure there are ISIS agents among those people. And we cannot afford it, we are poor ourselves“. You know what? You’re right! That’s true! And it does not matter at all, it changes nothing about our obligation to help them.

Sure, in 99% white, homogenous, (post)catholic Poland, there might be social clashes when people from different cultures arrive. They will need to learn and we will need to learn. And it will cost the taxpayers’ money. And yeah, maybe there are even some ISIS agents hidden among the thousands that come. Maybe there will be an attack by one of the thousands we now help. We need to admit such a possibility and be prepared. There is definitely a cost to pay, financial, social, and in security. And we MUST pay it.

Jesus never said ‘Feed, clothe, welcome UNLESS your standard of living will decline, unless your personal security might be endangered’. He said: LOVE! And He gave us the ultimate expression of His perfect love, remember how? By dying. And we use the potential prospect of maybe dying in a maybe-one-day-to-occur-attack as an argument against saving people’s lives right now?!

‘But we are not Jesuses!’. Well, before He died, he said: The greatest way to show love for friends is to die for them (J15:13). (I can really keep going with the citations, you know that, and so can you, btw). You wear a symbol of Him dying on your neck. And you fight for your right to put this symbol on your school’s wall. Rightly so, I believe. Now let us try live up to it.

And one more thing: remember the last time we talked about human rights being just secularised christian ethics and the danger that once we ‘cut the root off’, when Europe become completely secular, the whole project will stay for a few generations, but then might collapse, since if no one believes in natural law, and human rights are just a positive law that might be changed, future generations will choose to change it? Well, guess what.

I started with not helping, let me finish with helping. For dates of 1939, 1944, 1945, 1946, 1949, 1956, 1968, 1981, apart from tragic events, are also the years when we did receive enormous help. When thousands of people, who were at that time refugees, found shelter. Now it’s our turn.

People of Europe have a moral obligation to accept the refugees and to do whatever they can to help them. Sure, there will be a cost of that. This cost might be high. And we just have to pay it. There is the important reason, and that, apart from just being a decent human being that can look oneself in the eyes without dying of shame, is the the God’s Law. If one feels Christian, there’s no other option. Or even if one does not, but wants to ‘defend the European values’, there is no other way. History will judge us justly, maybe. But God will for sure.