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25 STLR 167 2022 Meta Private Speech Governance Boards First Decisions OKane
25 STLR 167 2022 Meta Private Speech Governance Boards First Decisions OKane
Ruby O'Kane*
ABSTRACT
The Oversight Board, Meta’s project over three years in the making,
began handing down its decisions in early 2021. Envisioned as a “Supreme
Court”-type body for Meta’s speech governance regime, this new institution
has been plagued with doubts from its inception. Analysis of the Board’s first
decisions reveals its ingenuity, its potential, and its willingness to criticize its
maker. However, its decisions also reveal the Board’s institutional pitfalls.
The Board is a key institutional player in the emerging private governance
of online speech and speakers. It has, largely of its own volition, created a
methodology for its decision-making based on International Human Rights
Law (IHRL) and norms, particularly those around freedom of expression and
limitations on this freedom according to the principles of proportionality,
necessity, and legitimacy. However, this produces an internal incoherency
within Meta’s speech governance regime; the Board promulgates an IHRL-
based rights adjudication framework, whereas Meta itself, through both
human and automated moderation, adopts a probabilistic method, where
rights abrogation is accepted as inevitable and built into content
moderation processes and technologies. This internal tension, which has
come to the fore through the Board’s reasoning and decision-making,
evinces the relatively constrained role the Board can play in mandating the
improvement of Meta’s corporate standards and practices in terms of
freedom of expression outcomes, or in providing increased accountability
and transparency outcomes for users and the broader public. The Board’s
institutional constraints serve to maintain the status quo of Meta’s private
governance regime, which serves to exclude certain speech and speakers,
*LLB (Hons I)/BInst (UNSW); Tipstaff, New South Wales Court of Appeal. I am grateful to
the UNSW Faculty of Law & Justice, including Associate Professor Daniel Joyce for his
helpful comments and guidance. Thank you to my family and friends for their
unwavering support during the research and writing of this piece, and throughout my
studies. I also thank the Stanford Technology Law Review editorial team for their
comments and exceptional work editing this piece. Thank you to all the wonderful
scholars in this field, whose passion inspired me to keep reading and writing. The
opinions expressed in this publication are those of the author only. They do not purport
to reflect the opinions or views of anyone else, including past or present employers.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 168
marginalize certain voices and amplify others, mirroring and reinforcing the
existing dynamics of social, political, and economic hierarchy and
stratification which exist offline.
TABLE OF CONTENTS
I. INTRODUCTION .................................................................................... 168
II. ENUNCIATION AND ENFORCEMENT OF SPEECH NORMS ................................. 174
A. IHRL Framework.......................................................................... 175
1. Content Moderation as IHRL.................................................. 175
2. Oversight Board as IHRL Exemplar ......................................... 177
3. Meta’s “Systemic Balancing” and IHRL .................................. 179
B. Meta’s Speech Governance as Probabilism .................................. 181
C. Probability and IHRL: Systemic vs Individualistic .......................... 183
III. COLLIDING FORCES: THE RESULTS AND ROLE OF THE OVERSIGHT BOARD........... 185
A. Interplay Between Meta and the Board: Dynamics of Assertion and
Restriction................................................................................... 186
1. Expanded Policy Jurisdiction .................................................. 186
2. Weak-Form Review as Weak-Form Accountability ................. 191
3. Algorithmic Transparency...................................................... 192
4. Translational Discord............................................................. 194
5. Dodging Questions ................................................................ 198
B. Exclusionary Speech Practices: Institutional and Systemic Barriers to
User Speech Rights ...................................................................... 200
1. Board as Appeal and Grievance Mechanism .......................... 200
2. Benefits Interrupted: Institutional Barriers to Accessing the
Board ................................................................................... 201
3. Business Models, Platform Design and Exclusionary Speech
Governance .......................................................................... 203
IV. CONCLUSION ....................................................................................... 207
I. INTRODUCTION
Almost two decades after its founding, Meta has become one of the
most profitable and controversial tech giants in the world. It was in the
wake of controversies fueled by the perceived exploitation of user data and
revelations about Facebook’s impact on electoral and democratic processes
that the Oversight Board (“the Board”) was born. 1 Although the Board’s
genesis lay outside Meta, it was quickly adopted and formalized by Meta’s
leadership in 2018, and became fully operational at the start of 2021.2 From
1
See generally Adrian Chen, Cambridge Analytica and Our Lives Inside the Surveillance
Machine, NEW YORKER (Mar. 21, 2018), https://perma.cc/LQ6Q-2TPP; SELECT COMM. ON
INTEL., 2 RUSSIAN ACTIVE MEASURES CAMPAIGNS AND INTERFERENCE IN THE 2016 U.S. ELECTION:
RUSSIA’S USE OF SOCIAL MEDIA WITH ADDITIONAL VIEWS, S. REP. NO. 116-290 (2019).
2
Kate Klonick, The Facebook Oversight Board: Creating an Independent Institution to
Adjudicate Online Free Expression, 129 YALE L.J. 2418, 2448-50 (2020). See, e.g., Access
Now et al., The Santa Clara Principles on Transparency and Accountability in Content
Moderation, https://perma.cc/8W6K-LGAK.
169 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
the Board’s inception, Meta framed it as a way for users to hold the
company accountable for its decisions and policymaking, 3 ensuring the
“final judgment call” on what constitutes “acceptable speech” on its
platforms is not at Meta’s sole discretion, but reflects “the social norms and
values” of its platforms’ users.4
The idea of “final judgment calls” elides the true nature of adjudication
of online speech by social media companies, which involves increasingly
complex self-regulatory frameworks and behemoth systems of governance.
Platforms, straddling and unimpeded by national borders, operate across
various jurisdictions with no clear overlord or master.5 Filling this so-called
“governance gap”6 in the online realm, platforms create their own systems
of private speech governance. 7 Platforms conduct governance projects
through terms of service and “platform law,”8 a combination of community
standards, rules, and policies. 9 Although as a matter of law, terms of
service are mere contract, they perform an important governance function
by articulating rights and responsibilities of both users and platforms and
establish a balance of powers and rights. 10 Speech is reviewed by
automation or by a “privatized bureaucracy” of human content
moderators 11 at various points in the content cycle: ex ante (between
content upload and publication), ex post proactive (proactively removing),
3
Klonick, supra note 2, at 2427, 2446. For an excellent summary of the conceptualization
and creation of the Board, see id. at 2448-65; see also evelyn douek, Facebook’s
“Oversight Board”: Move Fast with Stable Infrastructure and Humility, 21 N.C. J. L. & TECH.
1, 6 (2019).
4
Ezra Klein, Mark Zuckerberg on Facebook’s Hardest Year, and What Comes Next, VOX
(Apr. 2, 2018, 6:00 AM EDT), https://perma.cc/HBU9-VLPC.
5
Agnes Callamard, The Human Rights Obligations of Non-State Actors, in HUMAN RIGHTS
IN THE AGE OF PLATFORMS 191, 215 (Rikke Frank Jørgensen ed., 2019).
6
EMILY B. LAIDLAW, REGULATING SPEECH IN CYBERSPACE: GATEKEEPERS, HUMAN RIGHTS AND
CORPORATE RESPONSIBILITY 95 (2015); Rikke Frank Jørgensen, Rights Talk: In the Kingdom of
Online Giants, in HUMAN RIGHTS IN THE AGE OF PLATFORMS, supra note 5 at 163, 182.
7
Jack M. Balkin, Free Speech is a Triangle, 118 COLUM. L. REV. 2011, 2012-15 (2018).
8
David Kaye (Special Rapateur on the Promotion and Protection of the Right to Freedom
of Opinion and Expression), Rep. of the Special Rapporteur on the Promotion and Prot.
of the Right to Freedom of Op. and Expression, U.N. Doc. A/74/486 (Oct. 9, 2019),
https://perma.cc/T9TH-RBHX.
9
Balkin, supra note 7, at 2021. See also Community Standards, META,
https://perma.cc/8MWY-7SZ3.
10
See Edoardo Celeste, Terms of Service and Bills of Rights: New Mechanisms of
Constitutionalisation in the Social Media Environment?, 33 INT'L REV. L. COMPUT. & TECH.
122, 138 (2019); Nicolas P. Suzor, The Responsibilities of Platforms: A New
Constitutionalism to Promote the Legitimacy of Decentralized Governance, ASSOC. OF
INTERNET RESEARCHERS ANN. CONF. (Oct. 2016), https://perma.cc/5XDY-9GVG; Nicolas Suzor,
Digital Constitutionalism: Using the Rule of Law to Evaluate the Legitimacy of
Governance by Platforms, 4 SOC. MEDIA + SOC’Y 1, 1-11 (2018).
11
Balkin, supra note 7, at 2028.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 170
12
Kate Klonick, The New Governors: The People, Rules, and Processes Governing Online
Speech, 131 HARV. L. REV. 1599, 1635-39 (2018).
13
Id. at 1639-41. See also MATTHIAS C. KETTEMANN & WOLFGANG SCHULZ, SETTING RULES FOR 2.7
BILLION: A (FIRST) LOOK INTO FACEBOOK’S NORM-MAKING SYSTEM: RESULTS OF A PILOT STUDY (Hans-
Bredow Institut 2020); Corporate Human Rights Policy, FACEBOOK,
https://perma.cc/Z3T3-JAR7. For an extensive summary of Meta’s content moderation
process, see Klonick, supra note 2, at 2428-35. For a summary of the appeals process,
see Appealed Content, META, https://perma.cc/3GP3-KEVF.
14
Barrie Sander, Freedom of Expression in the Age of Online Platforms: The Promise and
Pitfalls of a Human Rights-Based Approach to Content Moderation, 43 FORDHAM INT’L L.J.
939, 946 (2020).
15
Klonick, supra note 2, at 2446. See generally Jack M. Balkin, Old School/New School
Speech Regulation, 127 HARV. L. REV. 2296 (2014); Balkin, supra note 7; Jack M. Balkin,
Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School
Speech Regulation, 51 U.C. DAVIS L. REV. 1149 (2018).
16
Klonick, supra note 12, at 1663.
17
evelyn douek, Governing Online Speech: From “Posts-As-Trumps” to Proportionality &
Probability, 121 COLUM. L. REV. 759, 827 (2020); Balkin, supra note 7, at 2017.
18
douek, supra note 17, at 809.
19
Klonick, supra note 12, at 1666. See generally Suzor, Digital Constitutionalism, supra
note 10.
20
Klonick, supra note 12, at 1666.
171 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
have typically provided limited transparency around how they create and
enforce their rules or adjudicate complaints and hard cases. 21 Further,
platform self-regulation is not “wholly public spirited.” 22 The “economic
logic of advertiser-driven social media,” requires continuous expansion of
either membership or user attention often measured as time spent on the
platform. 23 This dictates that platforms constantly search for “new
opportunities for profits and property accumulation that can only be
achieved through shutting down or circumscribing” speech. 24 Self-
regulation creates opaque normative systems of speech governance that
are informed by the idiosyncratic business interests and models of
platforms, yet are presented as fundamentally based in broader social
values and norms.25
The Board’s establishment reflects changing understandings of the
private governance of online speech, including the potential for such
institutions to provide an avenue for appeal for users that lies outside the
bureaucracy of the platform itself. Such institutions can also remedy some
of the above deficits and provide a form of public reasoning, accountability,
and transparency, lending legitimacy to these private governance regimes.
Meta framed the creation of the Board as a delegation of Meta’s decision-
making authority for important, difficult cases to an independent body who
could impartially adjudge content in a way that “reflects the social norms
and values of people all around the world.”26 The reality is a more complex
landscape of interplays between Meta and the Board, as well as between
the Board and the broader normative frameworks operating to structure
and inform new theories about how content moderation should be
conducted.
The Board sits within an integrative institutional framework. Its budget,
appointment and removal of members, and administration is run by a non-
charitable trust: “The Oversight Board Trust,” with trustees appointed by
Meta. The Trust received funding of $130 million as an irrevocable grant,
designed to fund the operation of the Board for six years.27 The Board itself
21
Id. at 1668; Jørgensen, supra note 6, at 166.
22
Balkin, supra note 7, at 2023.
23
Id. For more about Meta’s adoption of this targeted advertising business model, see
generally SHEERA FRENKEL & CECILIA KANG, AN UGLY TRUTH: INSIDE FACEBOOK’S BATTLE FOR
DOMINATION (2021).
24
Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of
Expression for the Information Society, 79 N.Y.U.L. REV. 1, 14 (2004).
25
David Kaye, supra note 8, at 14.
26
Klein, supra note 4; Klonick, supra note 2, at 2449-51.
27
META, OVERSIGHT BOARD TRUST AGREEMENT, § 2.2 (2019), https://perma.cc/P7AU-MLYG;
Brent Harris, An Update on Building a Global Oversight Board, META (Dec. 12, 2019),
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 172
is a limited liability company (the Oversight Board LLC), of which the Trust
is the sole member, formed by the Trust for the purpose of establishing and
ensuring the operation of the Board, including managing finances, and
appointing and removing Board Members. 28 The Board consists of a
minimum of eleven members, (there are currently twenty seated members
and an envisioned future of forty members), each serving for a maximum
of three terms or nine years. 29 Members must be familiar with issues
concerning “digital content and governance,” and many members
specialize in law, human rights, journalism, or technology.30
The Board has authority to produce binding decisions regarding either
specific content that Meta has removed or content that Meta has
determined should remain online, following either a request from a user
who has exhausted the internal appeals processes or a referral from
Meta.31 The Board also has a separate jurisdiction, either when ancillary to
a particular case or upon Meta’s request, to give “policy guidance”
regarding Meta’s policies. These do not appear to fall within the Board’s
binding powers: its power to instruct Meta to allow or remove content or
to uphold or reverse a decision enforcing its policies. 32 Case selection,
deliberation processes, and production of final decisions are at the Board’s
discretion, beyond the Charter’s requirement that the Board choose cases
“that have the greatest potential to guide future decisions and policies.”
These selection processes are outlined in the recently updated Bylaws.33
Scholars have begun to analyze the Board’s Charter and institutional
set-up, including its level of independence from Meta and implications for
procedural fairness and transparency.34 However, since it began handing
down decisions in January 2021, few have had the opportunity to consider
the Board’s decisions and the institutional interplay between Meta and the
now-operational Board.35 This piece will consider the Board’s approach to
Responses in the Trump Case Are Better Than a Kick in the Teeth, but Not Much, LAWFARE
(June 4, 2021, 4:32 PM), https://perma.cc/Z2JM-K3T2; evelyn douek, The Oversight
Board Moment You Should’ve Been Waiting For: Facebook Responds to the First Set of
Decisions, LAWFARE (Feb. 26, 2021, 1:00 PM), https://perma.cc/3LFR-H2JM [hereinafter
douek, Facebook Responds to the First Set of Decisions]. Oversight Board decisions and
Meta responses up to July 2021 are considered in this paper.
36
TARLETON GILLESPIE, CUSTODIANS OF THE INTERNET: PLATFORMS, CONTENT MODERATION, AND THE
HIDDEN DECISIONS THAT SHAPE SOCIAL MEDIA 121 (2018); Klonick, supra note 12, at 1634-41;
douek, supra note 17, at 793.
37
douek, supra note 17.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 174
38
David Kaye, supra note 8, at 3, 19.
39
GILLESPIE, supra note 36, at 41; Tarleton Gillespie, Governance of and by Platforms, in
SAGE HANDBOOK OF SOCIAL MEDIA 254, 254 (Jean Burgess et al. eds., 2017).
40
Klonick, supra note 12, at 1663.
41
Id.
42
Mike Ananny, Probably Speech, Maybe Free: Toward a Probabilistic Understanding of
175 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
process through its decisions and has chosen rather emphatically to adopt
an IHRL framework. However, this IHRL framework differs fundamentally
from Meta’s normative governance framing. Meta adopts a “systemic
balancing” of users’ speech characterized by a probabilistic, statistical
understanding of speech adjudication. This creates two diverging
frameworks for speech governance, where Meta’s system-focused
approach conflicts with the Board’s understanding of individual speech
rights.
A. IHRL Framework
Online Expression and Platform Governance, KNIGHT FIRST AMEND. INST. (Aug. 21, 2019),
https://perma.cc/T8NW-LJA8; GILLESPIE, supra note 36; Jørgensen, supra note 6, at 181.
43
U.N. Working Grp. on Bus. and Hum. Rts., The UN Guiding Principles on Business and
Human Rights: Implementing the United Nations “Protect, Respect, Remedy” Framework
(2011), https://perma.cc/G7C3-DHRZ. In particular, it is embodied in Pillar II ‘The
Corporate Responsibility to Respect Human Rights’ and Pillar III ‘Access to Remedy.’
Pillar II consists of Guiding Principles 11 to 24 and requires businesses to respect human
rights (at a minimum those expressed in the International Bill of Human Rights and
principles relating to fundamental rights set out in the International Organisation of
Labour’s Declaration on Fundamental Principles and Rights at Work) in two ways:
businesses ‘should avoid infringing on the human rights of others and should address
adverse human rights impacts with which they are involved.’ Id. at 13. Pillar III requires
states to facilitate state and non-state based mechanisms for the airing of grievances
and remedy of business-related human rights abuses or harms. Id. at 30-31.
44
LAIDLAW, supra note 6, at 91-92. See also Justine Nolan, The Corporate Responsibility
to Respect Human Rights: Soft Law or Not Law?, in HUMAN RIGHTS OBLIGATIONS OF BUSINESS:
BEYOND THE CORPORATE RESPONSIBILITY TO RESPECT 138-61 (Surya Deva & David Bilchitz eds.,
2013); Susan Benesch, But Facebook’s Not a Country: How to Interpret Human Rights
Law for Social Media Companies, 38 YALE J. ON REGUL. 86 (2020). See generally Jen Patja
Howell, The Lawfare Podcast: The Arrival of International Human Rights Law in Content
Moderation, LAWFARE, at 20:00-28:30 (May 27, 2021, 5:01 AM), https://perma.cc/M2UY-
HFLW.
45
David Kaye, supra note 8, at 14.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 176
46
Corporate Human Rights Policy, supra note 13; Miranda Sissons, Our Commitment to
Human Rights, META (Mar. 16, 2021), https://perma.cc/MJ67-ZLR5.
47
David Kaye, supra note 8, at 15.
48
Id. at 16.
49
Id. at 15-16.
50
Id. at 16.
51
Id. See also U.N. Hum. Rts. Comm., General Comment No. 34: Freedoms of Opinion
and Expression, ¶ 7, U.N. Doc. CCPR/C/GC/4 (Sept. 12, 2011), https://perma.cc/QZ9Z-
MYAP.
52
International Covenant on Civil and Political Rights, arts. 19(2), 19(3), Dec. 16, 1966,
999 U.N.T.S. 171, https://perma.cc/LWP7-ZTJ2. See David Kaye (Special Rapateur on the
Promotion and Protection of the Right to Freedom of Opinion and Expression), Rep. of
the Special Rapporteur on the Promotion and Prot. of the Right to Freedom of Op. and
Expression, ¶ 45, U.N. Doc. A/HRC/38/35 (Apr. 6, 2018) (“Companies should incorporate
directly into their terms of service and ‘community standards’ relevant principles of
human rights law that ensure content-related actions will be guided by the same
standards of legality, necessity and legitimacy that bind State regulation of
expression.”).
53
Sander, supra note 14, at 942. Various scholars have outlined the benefits, difficulties
and (non)viability of a human rights-based approach to online speech governance. I have
chosen to focus on the implementation of the framework and will not address these
arguments. See generally Evelyn Mary Aswad, The Future of Freedom of Expression
Online, 17 DUKE L. & TECH. REV. 26-70 (2018); evelyn douek, The Limits of International
177 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
The Board has emphatically adopted this IHRL framework, largely of its
own volition. Klonick, one of the first to conceptualize content moderation
as private governance of online speech, presciently noted that, although
the Board’s Charter does not reflect a “broad or robust adoption of human
rights,” the Board could have powerful benefits if it “creates a meaningful
method for users to enforce such rights.”54 This is precisely what the Board
has done. There was a narrow opening created by the language of the
Charter. Article 2 dictates that the Board “pay particular attention to the
impact of removing content in light of human rights norms protecting free
speech.” 55 The introduction recognizes freedom of expression as a
“fundamental right.”56 Based on these references, the Board has created a
reasoning method centered around Kaye’s IHRL framework and ICCPR
Article 19. It now considers adjudication on whether Meta’s decisions “fall
within the zone of what the U.N. Guiding Principles require” as its “principal
task.”57
The Board’s framework for reviewing decisions, first set out in their
second decision,58 considers the validity of actions taken by Meta according
to Meta’s Community Standards, Values, and “Relevant Human Rights
Standards.” In relation to human rights standards, the Board first notes that
the UNGPs “establish a voluntary framework for human rights
responsibilities of private businesses,” and second, considering these
UNGPs, lists the relevant standards to be considered (including Article 19).59
In applying these standards, the Board considers first whether the content
was “subject to a mandatory restriction under international human rights
law” (e.g., Article 20(2) regarding incitement to discrimination). The Board
then judges Meta’s actions according to the ICCPR Article 19(3) framework
for restricting speech, considering the requirements of legality, legitimate
Law in Content Moderation, 6 U.C. IRVINE J. INT'L TRANSNAT'L & COMPAR. L. 37 (2021); Michael
Lwin, Applying International Human Rights Law for Use by Facebook, 38 YALE J. ON REGUL.
53 (2020); LAIDLAW, supra note 6; Benesch, supra note 44; Callamard, supra note 5, at
214-218.
54
Klonick, supra note 2, at 2478.
55
META, OVERSIGHT BOARD CHARTER, supra note 27, at art. 2, § 2.
56
Id. at Introduction.
57
OVERSIGHT BD., META, CASE DECISION 2020-003-FB-UA (Jan. 28, 2021) [hereinafter
NAGORNO-KARABAKH CASE], https://perma.cc/588C-P9R2.
58
OVERSIGHT BD., META, CASE DECISION 2020-002-FB-UA (Jan. 28, 2021) [hereinafter
MYANMAR HATE SPEECH CASE], https://perma.cc/GCX2-PRA4.
59
Id. For empirical analysis of human rights documents and standards considered by the
Board, see OVERSIGHT BOARD TRANSPARENCY REPORTS - Q4 2020, Q1 & Q2 2021, at 35-36, 58-
60 (2021), https://perma.cc/5PCV-GNTJ.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 178
60
MYANMAR HATE SPEECH CASE, supra note 58.
61
David Kaye, supra note 8, ¶¶ 46-52.
62
See douek, supra note 53, at 43.
63
David Kaye, supra note 8, ¶¶ 41, 45; OVERSIGHT BD., META, CASE DECISION 2021-001-FB-
FBR (May 5, 2021) [hereinafter TRUMP CASE], https://perma.cc/6M4M-L6H7. See also
NAGORNO-KARABAKH CASE, supra note 57.
64
MYANMAR HATE SPEECH CASE, supra note 58. See U.N. Hum. Rts. Council, Elaboration of
an International Legally Binding Instrument on Transnational Corporations and Other
Business Enterprises with Respect to Human Rights, U.N. Doc. A/HRC/Res/26/9 (July 14,
2014), https://perma.cc/6TGS-GWEV.
65
TRUMP CASE, supra note 63.
66
See Access Now, After Nearly Two Decades in the Dark, Facebook Releases Its Human
Rights Policy, ACCESS NOW (Mar. 16, 2021, 5:31 PM), https://perma.cc/RHL9-K5CQ.
67
Klonick, supra note 2, at 2478.
179 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
68
Klonick, supra note 12, at 1621.
69
META, OVERSIGHT BOARD CHARTER, supra note 27. See also KETTEMANN & SCHULZ, supra note
13, at 19.
70
Jonathan L. Zittrain, Three Eras of Digital Governance, in TOWARDS A GLOBAL FRAMEWORK
FOR CYBER PEACE AND DIGITAL COOPERATION: AN AGENDA FOR THE 2020S, at 115, 115 (Wolfgang
Kleinwachter et al. eds., 2019).
71
douek, supra note 17, at 777-78; Klonick, supra note 12, at 1663.
72
Kara Swisher, Zuckerberg: The Recode Interview, VOX (Oct. 8, 2018, 2:21 PM EDT),
https://perma.cc/WQD8-UBXU; Ezra Klein, The Controversy Over Mark Zuckerberg’s
Comments on Holocaust Denial, Explained, VOX (Apr. 2, 2018, 6:00 AM EDT),
https://perma.cc/HBU9-VLPC; Ryan Mac & Craig Silverman, “Mark Changed The Rules”:
How Facebook Went Easy On Alex Jones And Other Right-Wing Figures, BUZZFEED NEWS
(updated Feb. 22, 2021, 10:14 AM), https://perma.cc/RWN7-2Y2F; FRENKEL & KANG,
supra note 23, at ch. 10.
73
douek, supra note 17, at 777. GILLESPIE, supra note 36, at 40, 208. See also Anupam
Chander & Vivek Krishnamurthy, The Myth of Platform Neutrality, 2 GEO. L. TECH. REV.
400, 403-409 (2018).
74
Mary Anne Franks, The Free Speech Black Hole: Can The Internet Escape the
Gravitational Pull of the First Amendment?, KNIGHT FIRST AMEND. INST. (Aug. 21, 2019),
https://perma.cc/MHR9-WRUW.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 180
75
See Suzor, The Responsibilities of Platforms, supra note 10; Celeste, supra note 10;
Suzor, Digital Constitutionalism, supra note 10.
76
douek, supra note 17, at 763.
77
These “Values” are contained in the preamble to Facebook’s Community Standards,
and are the lens through which the Community Standards should be read and enforced.
Monika Bickert, Updating the Values That Inform Our Community Standards, META
(Sept. 12, 2019), https://perma.cc/D6XR-MKU7.
78
KETTEMANN & SCHULZ, supra note 13, at 19.
79
douek, supra note 17, at 765; Bickert, supra note 77. See also evelyn douek, Why
Facebook’s “Values” Update Matters, LAWFARE (Sept. 16, 2019, 12:05 PM),
https://perma.cc/2WU5-6JGY.
80
Corporate Human Rights Policy, supra note 13.
81
META, OVERSIGHT BOARD CHARTER, supra note 27, at Introduction.
82
KETTEMANN & SCHULZ, supra note 13, at 20.
83
David Kaye, supra note 8, ¶ 45.
84
Richard Allan, Hard Questions: Where Do We Draw the Line on Free Expression?, META
(Aug. 9, 2018), https://perma.cc/7REN-VRYK. See also Lwin, supra note 53, at 59;
KETTEMANN & SCHULZ, supra note 13, at 20; Corporate Human Rights Policy, supra note 13.
85
Lwin, supra note 53, at 55.
86
Specifically, the policy calls for escalation to the VP for Global Affairs and
Communications and General Counsel, with input from Chief Diversity Officer, COO, and
CEO. Appealed Content, supra note 13, § 5. Anecdotal evidence also supports this. See,
e.g., Elizabeth Dwoskin & Nitasha Tiku, Facebook Employees Said They Were ‘Caught in
an Abusive Relationship’ with Trump as Internal Debates Raged, WASH. POST (June 6,
2020), https://perma.cc/BZ77-34S9; Elizabeth Dwoskin & Robert Costa, Facebook Chief
Mark Zuckerberg Reached out to Speaker Pelosi. She Hasn’t Called Him Back., WASH. POST
(June 11, 2019), https://perma.cc/LY7Z-8DSH; FRENKEL & KANG, supra note 23, at 234-40.
181 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
87
Lwin, supra note 53, at 59, 60; KETTEMANN & SCHULZ, supra note 13.
88
LAURA W. MURPHY, FACEBOOK’S CIVIL RIGHTS AUDIT — FINAL REPORT 9, 12 (2020),
https://perma.cc/GX9F-UDBS.
89
Klonick, supra note 2, at 2478. But see META, OVERSIGHT BOARD CHARTER, supra note 27,
at Introduction (“Freedom of expression is a fundamental human right.”).
90
Klonick, supra note 2, at 2478.
91
Aswad, supra note 53, at 40; Rikke Frank Jørgensen & Lumi Zuleta, Private Governance
of Freedom of Expression on Social Media Platforms: EU Content Regulation Through the
Lens of Human Rights Standards, 41 NORDICOM REV. 51, 57 (2020).
92
LAIDLAW, supra note 6, at 242; Sander, supra note 14, at 966.
93
douek, supra note 53, at 66.
94
douek, supra note 17, at 766.
95
Sander, supra note 14, at 946.
96
GILLESPIE, supra note 36, at 179.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 182
97
douek, supra note 17, at 798.
98
For specific examples, see id. at 795-96; Daphne Keller & Paddy Leerssen, Facts and
Where to Find Them: Empirical Research on Internet Platforms and Content Moderation,
in SOCIAL MEDIA AND DEMOCRACY: THE STATE OF THE FIELD, PROSPECTS FOR REFORM 220 (Nathaniel
Persily & Joshua A. Tucker eds., 2020). Regarding filtering errors, see also Emma J.
Llansó, No Amount of “AI” in Content Moderation Will Solve Filtering’s Prior-Restraint
Problem, BIG DATA & SOC'Y 1-6 (2020); DAPHNE KELLER, STAN. CTR. FOR INTERNET & SOC’Y,
DOLPHINS IN THE NET: INTERNET CONTENT FILTERS AND THE ADVOCATE GENERAL’S GLAWISCHNIG-PIESCZEK
V. FACEBOOK IRELAND OPINION (2019).
99
Marion Fourcade & Fleur Johns, Loops, Ladders and Links: The Recursivity of Social and
Machine Learning, 49 THEORY & SOC'Y 803, 808 (2020).
100
douek, supra note 17, at 793; Robert Gorwa et al., Algorithmic Content Moderation:
Technical and Political Challenges in the Automation of Platform Governance, BIG DATA
& SOC'Y, Feb. 28, 2020, at 1-15.
101
Ananny, supra note 42; douek, supra note 17, at 797.
102
Fourcade & Johns, supra note 99, at 812.
103
Ananny, supra note 42. See also Fleur Johns, Governance by Data, 17 ANN. REV. L. &
SOC. SCI. 53, 54-56, 61-62 (2021).
104
Press Release, Meta, Meta Reports Fourth Quarter and Full Year 2021 Results (Feb. 2,
2022) (https://perma.cc/VCY7-ZXFT).
183 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
105
Ananny, supra note 42.
106
GILLESPIE, supra note 36, at 121.
107
OVERSIGHT BD., META, CASE DECISION 2021-003-FB-UA (Jan. 28, 2021) [hereinafter MODI
& INDIAN SIKHS CASE], https://perma.cc/W9QA-9Y5G.
108
Casey Newton, The Trauma Floor: The Secret Lives of Facebook Moderators in
America, VERGE (Feb. 25, 2019, 8:00 AM), https://perma.cc/AKJ4-JDWG.
109
An anonymous whistleblower sent a letter to the SEC Office of the Whistleblower.
WHISTLEBLOWER AID, FACEBOOK MISLED INVESTORS AND THE PUBLIC ABOUT ITS ROLE PERPETUATING
MISINFORMATION AND VIOLENT EXTREMISM RELATING TO THE 2020 ELECTION AND JANUARY 6TH
INSURRECTION, at 6, https://perma.cc/U6UY-RG8W.
110
GILLESPIE, supra note 36, at 122.
111
Id. at 135-137.
112
Id. at 138.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 184
113
douek, supra note 17, at 789.
114
Id. at 797.
115
Id.
116
Aswad, supra note 53, at 40, 41, 57.
117
META, OVERSIGHT BOARD CHARTER, supra note 27, at art. 1, § 4.
118
See David Kaye, supra note 8, at 12-14.
119
Klonick, supra note 2, at 2490-91; douek, supra note 3, at 15. See also evelyn douek,
The Administrative State of Content Moderation, YOUTUBE, at 3:45 (Oct. 26, 2021),
https://perma.cc/6FC9-AFZ9, https://www.youtube.com/watch?v=RGdeV4KChWE (last
visited Apr. 24, 2022).
120
douek, supra note 17, at 790.
121
Id. at 791.
122
Id. at 768.
185 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
III. COLLIDING FORCES: THE RESULTS AND ROLE OF THE OVERSIGHT BOARD
123
Sander, supra note 14, at 948.
124
douek, supra note 17, at 798.
125
Id.
126
Balkin, Old School/New School Speech Regulation, supra note 15, at 2318.
127
See Ananny, supra note 42.
128
This will be discussed below, especially Part III.B.2.
129
This will also be discussed below at Part III.A.3 and III.B.3.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 186
with private regulation: the opacity and lack of accountability in the design
and operation of Meta’s speech governance systems, influenced by private
interests and incentives, and an absence of enforceable rights for users. The
Board’s intended operation, and its object in adopting an IHRL approach,
was to mitigate these problems. However, policy and decision-making
power is concentrated in the hands of Meta’s executives, driven by a desire
to fiercely protect and promote the profitability of Facebook as Meta’s
product. Decisions as to the operation and design of the probabilistic
system—the explicit and implicit rules, standards, and technologies—are
made almost exclusively at this executive level. This creates a dysfunctional
dynamic that is reflected in the interaction between Meta and the Board.
The Board has repeatedly asserted its role in improving the substance and
enforcement of Meta’s policies, largely through its IHRL framework. It
strives to introduce minimum standards of transparency, accountability,
and remedy as per the UNGPs through its advisory jurisdiction and public
reason-giving. Yet, Meta consistently strives to circumscribe this role, and
the potential benefits the Board could provide, in order to maintain the
status quo of Meta’s speech governance system. This status quo, however,
bolsters inherently exclusionary, hierarchical speech dynamics that silence
and exclude certain speech and speakers, while amplifying others.
The Board has, through its interpretative powers and its IHRL
framework, expanded its advisory jurisdiction and created an obligatory
feedback loop. This has led to some improvement in policy and some level
of accountability for Meta’s implementation of the Board’s
recommendations. However, the concentration of decision-making within
Meta’s executive leadership, informed by the corporate profit logic,
restricts the Board’s ability to provide the benefits of its advisory
jurisdiction and weak-form review. Certain restrictions are explicitly
constructed by Meta, like the circumscription of the Board’s policy and
algorithmic review jurisdiction. Others have emerged through interaction
between the Board and Meta, within and after the Board’s decisions,
including Meta’s (mis)translation of the Board’s recommendations and
refusal to respond to the Board’s questions.
case. 130 With this binding authority, the Board can thus provide
accountability for individual content enforcement decisions. However,
policy issues raised, including those related to the system operation or
design of Meta’s platforms, necessarily fall under the non-binding advisory
jurisdiction. 131
The Board has, largely of its own accord, created a broad scope for its
policy recommendations. Although its policy jurisdiction appears relatively
narrow, and seemingly secondary to its other powers, 132 the Board
interpreted it very broadly and has invoked it in nearly every case to make
extensive policy recommendations, including relating to Facebook’s system
design and policies. This included recommending an “internal audit
procedure” to analyze automated enforcement error rates, 133 publishing
transparency reports with specific data, breakdowns, and metrics on
content removals, 134 and conducting a “comprehensive review” of
Facebook’s contribution to the Capitol riots and “narratives of election
fraud.” 135 Meta itself has noted that “the size and scope of the board’s
recommendations go beyond the policy guidance we anticipated when we
set up the board, and several require multi-month or multi-year
investments.”136
The Board has created this opening for itself largely through its human
rights framework. Recommendations generally correspond to issues or
gaps raised as part of the Board’s IHRL framework and based on IHRL
concepts. Although the IHRL framework is employed in the context of
individual users and grievances, the Board has used this framework as the
basis for its provision of much broader, system-based recommendations.
The IHRL concepts most frequently cited are proportionality, legality,
necessity, and remedial rights.
Proportionality
130
META, OVERSIGHT BOARD CHARTER, supra note 27, at art. 1, § 4.
131
Id. at art. 1, § 4, cl 4.
132
It is not in the enumerated authorities but noted as a separate authority. Id. at art. 1
§ 4 (“In addition, the board can provide policy guidance, specific to a case decision or
upon Facebook’s request, on Facebook’s content policies. The board will have no
authority or powers beyond those expressly defined by this charter.” (emphasis added)).
133
OVERSIGHT BD., META, CASE DECISION 2020-004-IG-UA (Jan. 28, 2021) [hereinafter BREAST
CANCER SYMPTOMS AND NUDITY CASE], https://perma.cc/T4UV-SZXX.
134
OVERSIGHT BD., META, CASE DECISION 2020-006-FB-FBR (Jan. 28, 2021) [hereinafter
HYDROXYCHLOROQUINE, AZITHROMYCIN AND COVID-19 CASE], https://perma.cc/BK3M-4Z5U.
135
TRUMP CASE, supra note 6363.
136
FACEBOOK, FACEBOOK Q1 2021 QUARTERLY UPDATE ON THE OVERSIGHT BOARD (2021),
https://perma.cc/RCT6-R5GU.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 188
Legality
The Board has also invoked the principle of legality, ensuring rules are
clear and accessible in multiple cases. In the Modi & Indian Sikhs Case, the
Board criticized Meta for the lack of accessibility of its Community
Standards.140 Rules concerning the consequences of violating Community
Standards are dispersed and not synthesized for users to understand
account restrictions. Community Standards are not translated into Punjabi
and therefore are not available to users or content moderators working in
that language. The Board made corresponding recommendations. Legality
has also been invoked in the enforcement context, where the Board has
repeatedly recommended that Meta ensure users are notified of the
specific reasons for enforcement action taken against them, including the
violation of the specific Community Standard and the nature of the
137
TRUMP CASE, supra note 6363; HYDROXYCHLOROQUINE, AZITHROMYCIN AND COVID-19 CASE,
supra note 134134.
138
OVERSIGHT BD., META, CASE DECISION 2021-004-FB-UA (May 26, 2021) [hereinafter
NAVALNY PROTESTS CASE], https://perma.cc/P2WL-RKTS.
139
Id.
140
MODI & INDIAN SIKHS CASE, supra note 107107.
189 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
penalty.141 In the Trump Case, the Board explicitly recommended that Meta
provide greater transparency around their strikes and penalty system, and
share sufficiently detailed notification of such enforcement action to users.
Necessity
In the Hydroxychloroquine, Azithromycin, and Covid-19 Case, the Board
set out the requirement for the principle of necessity that Meta must show
removal was the “least intrusive means to address the legitimate public
interest objective” it pursued in removing such content. 142 In this case,
removing a post that contained false information on COVID-19 treatments
was not the least intrusive means of protecting public health, because Meta
has other tools to address such content, like reducing the distribution of
such content and providing additional information about a post. In its
recommendations, the Board developed a list of criteria that would help
the company determine what action is the least intrusive measure to adopt
and encourage the adoption of alternative measures, including
technological and algorithmic ones, such as “introducing additional friction
to a post” by preventing sharing, or “down-ranking” such content to
prevent visibility.
141
OVERSIGHT BD., META, CASE DECISION 2020-005-FB-UA (Jan. 28, 2021) [hereinafter NAZI
QUOTE CASE], https://perma.cc/8CA8-5JV2; NAGORNO-KARABAKH CASE, supra note 57; BREAST
CANCER SYMPTOMS AND NUDITY CASE, supra note 133; OVERSIGHT BD., META, CASE DECISION 2021-
002-FB-UA (Apr. 13, 2021) [hereinafter DEPICTION OF ZWARTE PIET CASE],
https://perma.cc/3GZF-TKR3. For Meta’s response, see META, Q2 + Q3 2021 QUARTERLY
UPDATE ON THE OVERSIGHT BOARD 16 (2021), https://perma.cc/YU9N-BTKX.
142
HYDROXYCHLOROQUINE, AZITHROMYCIN AND COVID-19 CASE, supra note 134.
143
See BREAST CANCER SYMPTOMS AND NUDITY CASE, supra note 133; MODI & INDIAN SIKHS CASE,
supra note 107.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 190
Moreover, the Board has inscribed in its Bylaws that Meta must
respond to all Board decisions publicly and, where policy guidance is issued,
provide a document detailing any “follow-on actions” within sixty days.144
Meta must provide “regular public updates” on its progress, 145 and the
Board will continuously assess Meta’s implementation of its responses.146
Meta has subsequently committed to producing quarterly reports of its
progress.147
These dynamics have created a feedback loop that has proved
relatively successful in compelling Meta to implement certain
recommendations and provide clarity on how it creates and implements its
policies. Meta policy changes responding directly to Board
recommendations include: changes to guidelines on permitted female
nudity,148 definitions of key terms used in the Dangerous Individuals and
Organizations policy,149 a new “newsworthiness” policy,150 the introduction
of a satire exception in the Hate Speech policy, 151 and a (forthcoming)
translation of Community Guidelines into Punjabi.152 Meta has also clarified
how it uses automated detection and enforcement systems,153 and its plans
to improve those machine learning models.154
The Board has therefore expanded its policy advisory jurisdiction
beyond what Meta originally imagined. It has crafted a space for itself
within Meta’s existing system of content moderation, designed to provide
sustained and meaningful improvement of policymaking and enforcement
through the creation of an obligatory feedback loop and by using their
individual content jurisdiction to produce wide-ranging policy
recommendations founded upon human rights standards. However, there
144
META, OVERSIGHT BOARD BYLAWS, supra note 33, at art. 2, § 2.3.2.
145
Id.
146
See Oversight Board (@OversightBoard), TWITTER (Feb. 25, 2021, 10:32 AM),
https://twitter.com/OversightBoard/status/1365006813570232320,
https://perma.cc/6GCY-F2X6 (“In the coming months, we will be assessing how
Facebook implements these responses, both to ensure the company takes action and to
learn lessons for future decisions.”). However, its mandate to enforce this remains
unclear.
147
The first report was released in July 2021. FACEBOOK, supra note 136.
148
Id. at 11.
149
Id. at 21.
150
In response to the TRUMP CASE, Meta published this article: Approach to Newsworthy
Content, META TRANSPARENCY CTR. (Jan. 19, 2022), https://perma.cc/TSN7-T5MV. See Mike
Isaac, Facebook Plans to End Hands-Off Approach to Politicians’ Posts, N.Y. TIMES (Sept.
24, 2021), https://perma.cc/W2VR-7KHE.
151
Kim Lyons, Facebook to Update its Community Standards to Clarify What it Considers
Satire, VERGE (June 19, 2021, 10:47 AM), https://perma.cc/ATZ5-ZHKG.
152
FACEBOOK, supra note 136, at 25.
153
Id. at 9, 14.
154
Id. at 9-10.
191 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
remain some key barriers to the Board’s ability to influence and improve
policy and policymaking.
155
Corporate Human Rights Policy, supra note 13, § 5; Lwin, supra note 53, at 60.
156
KETTEMANN & SCHULZ, supra note 13, at 28; Lwin, supra note 53, at 29.
157
KETTEMANN & SCHULZ, supra note 13, at 28; Lwin, supra note 53, at 60.
158
douek, supra note 3, at 17.
159
Id. at 42.
160
Klonick, supra note 2, at 2464; douek, supra note 3, at 54.
161
douek, supra note 3, at 54. douek draws on Rosalind Dixon, The Core Case for Weak-
Form Judicial Review, 38 CARDOZO L. REV. 2193 (2017).
162
Dixon, supra note 161, at 2217.
163
douek, supra note 3, at 57; see also Klonick, supra note 2, at 2464. This is also noted
in the Charter. META, OVERSIGHT BOARD CHARTER, supra note 27, at Introduction.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 192
3. Algorithmic Transparency
164
Klonick, supra note 12, at 1666.
165
Id.
166
douek, supra note 3, at 75.
167
Klonick, supra note 2, at 2478.
168
David Kaye, supra note 8.
169
Kevin Roose, Inside Facebook’s Data Wars, N.Y. TIMES (Oct. 4, 2021),
https://perma.cc/SLM2-A5VR. See generally FRENKEL & KANG, supra note 23, at ch. 7.
193 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
170
douek, supra note 3, at 40.
171
HYDROXYCHLOROQUINE, AZITHROMYCIN AND COVID-19 CASE, supra note 134.
172
Id.; TRUMP CASE, supra note 63.
173
FACEBOOK, supra note 136, at 27.
174
See TRUMP CASE, supra note 63. This will be discussed further in Part III.A.5 below.
175
See douek, supra note 17, at 762, 808-10.
176
Id. at 766.
177
Ananny, supra note 42; see also Gorwa et al., supra note 100.
178
See Keller & Leerssen, supra note 98; Paddy Leerssen, The Soap Box as a Black Box:
Regulating Transparency in Social Media Recommender Systems, 11 EUR. J. L. & TECH. 1
(2020); FRANK PASQUALE, THE BLACK BOX SOCIETY: THE SECRET ALGORITHMS THAT CONTROL MONEY
AND INFORMATION (2016).
179
Daphne Keller, Some Humility About Transparency, STAN. CTR. FOR INTERNET & SOC'Y BLOG
(Mar. 19, 2021, 3:09 AM), https://perma.cc/N7ZZ-2LZP. However, there is a plethora of
new research into algorithmic impact assessments and quantifying algorithmic harms.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 194
4. Translational Discord
often overly rhetorical and vague and, at worst, represent Meta’s lack of
good faith in considering and implementing the Board’s recommendations.
This reflects Meta’s desire to maintain control over the level and types of
transparency in which it engages.
Meta’s responses are littered with vague, non-specific explanations
and commitments. The Board recommended notification of the specific
Community Standards where enforcement action is taken. 184 Meta
responded that it works “to ensure a consistent level of detail is provided
when content is removed,”185 without specifics about such detail within the
notification. Indeterminate language, such as “we will continue to monitor
our enforcement and appeals systems,” 186 and “we will continue
experimentation to understand how we can more clearly explain our
systems to people”187 means many commitments are neither specific nor
measurable. The Board’s transparency reporting noted that Meta fully
“answered” 130 of 156 question. 188 However, the report did not
meaningfully analyze the content of these responses and the extent to
which Meta substantively answered the Board’s questions.
Meta also has a propensity to mistranslate the Board’s
recommendations and overstate the extent to which its responses in fact
implement these recommendations. Meta has attempted to restrict
recommendations to a specific case, even where the Board clearly intended
the recommendation to be a broader policy recommendation, for instance
regarding notification of enforcement actions. 189 The COVID-19
Misinformation Case is an illustrative example of Meta’s mistranslations.
The Board recommended a transparency report on the enforcement of
Meta’s Community Standards related to COVID-19 misinformation,
requesting specific data and breakdowns to be included. 190 Meta
responded that it was already sharing COVID-19 data and would continue
to do so, essentially ignoring the extensive list of specific data and analysis
that the Board recommended be published.191 Meta invoked the upcoming
“Transparency Center,” which it promised would “add more detail” about
184
NAZI QUOTE CASE, supra note 141141141.
185
Id.
186
BREAST CANCER SYMPTOMS AND NUDITY CASE, supra note 133.
187
FACEBOOK, supra note 136, at 16.
188
OVERSIGHT BOARD TRANSPARENCY REPORTS - Q4 2020, Q1 & Q2 2021, supra note 59, at 38-
39, 61-62.
189
NAZI QUOTE CASE, supra note 141. This issue was noted in several subsequent cases:
NAGORNO-KARABAKH CASE, supra note 57; BREAST CANCER SYMPTOMS AND NUDITY CASE, supra
note 133; DEPICTION OF ZWARTE PIET CASE, supra note 141141141141141.
190
HYDROXYCHLOROQUINE, AZITHROMYCIN AND COVID-19 CASE, supra note 134.
191
Oversight Board Selects Case on Hydroxychloroquine, Azithromycin, and COVID-19,
META (Feb. 25, 2021, 10:00 AM), https://perma.cc/LM9A-AMA7.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 196
192
Id.; FACEBOOK, supra note 136, at 24.
193
douek, Facebook Responds to the First Set of Decisions, supra note 35.
194
BREAST CANCER SYMPTOMS AND NUDITY CASE, supra note 133. This was also noted in
OVERSIGHT BD., META, CASE DECISION 2021-005-FB-UA (May 20, 2021) [hereinafter ARMENIAN
GENOCIDE CASE], https://perma.cc/VG8V-6NJQ.
195
Case on Breast Cancer Symptoms and Nudity, META TRANSPARENCY CTR.),
https://perma.cc/AZG3-PS7B (last updated Jan. 22, 2022).
196
FACEBOOK, supra note 136, at 14.
197 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
content presents risk of harm; nature of the speaker). 197 Still, one may
query whether this provides sufficient detail to create a set of substantive
“criteria” for enforcement as described by Meta.198
The Board also called for greater transparency around Meta’s “cross-
checking” policy, which provides more levels of review to prevent “false-
positive enforcement errors” for “high profile accounts.”199 Meta initially
gave no substantive response while also arguing that error rates associated
with such processes could not possibly be tracked,200 which douek not only
argued was incorrect, but also amounted to a failure of due process.201 It
was only after public pressure, and pressure from the Board itself, that
Meta submitted a Policy Advisory Opinion request to the Board to review
its cross-checking policy. 202 Despite the Board’s recommendation in the
Trump Case that all users be subject to the same rules on Meta’s platforms,
rather than instituting separate policies and enforcement exceptions for
political leaders, it remains Meta’s policy not to fact-check posts from
politicians.203
In reference to the Capitol riots, the Board also recommended a
“comprehensive review” and “open reflection on the design and policy
choices that Facebook has made that may enable its platform to be
abused.” 204 Meta denied responsibility 205 but noted that it “regularly
review[s] . . . policies and processes in response to real world events” and
had implemented the recommendation by “expand[ing] our research
initiatives to understand the effect that Facebook and Instagram have on
elections.”206 It is unclear what this “research initiative” will involve, what
197
Approach to Newsworthy Content, META TRANSPARENCY CTR., https://perma.cc/7FA5-
LMXA (last updated Jan. 19, 2022).
198
META, Q2 + Q3 2021 QUARTERLY UPDATE ON THE OVERSIGHT BOARD , supra note 141141, at
12.
199
See Reviewing High-Impact Content Accurately via Our Cross-Check System, META
TRANSPARENCY CTR., https://perma.cc/552P-6YFK (last updated Jan. 19, 2022).
200
Case on Former President Trump’s Suspension from Facebook, META TRANSPARENCY
CTR., https://perma.cc/JX5V-NWWB (last updated Jan. 19, 2022).
201
douek, Facebook’s Responses in the Trump Case Are Better Than a Kick in the Teeth,
but Not Much, supra note 35; see also Jen Patja Howell, The Empire (Facebook) Strikes
Back (at the Oversight Board’s Trump Decision), LAWFARE (June 10, 2021, 5:01 AM),
https://perma.cc/FZ4Q-VXR4.
202
Oversight Board (@OversightBoard), TWITTER (Sep. 28, 2021, 7:45 AM),
https://twitter.com/OversightBoard/status/1442862972926189575,
https://perma.cc/V7L4-FMHA.
203
Fact-Checking Policies on Facebook, META BUS. HELP CTR., https://perma.cc/Z3WP-
L3NQ.
204
TRUMP CASE, supra note 63.
205
Case on Former President Trump’s Suspension from Facebook, supra note 200, at
Recommendation 14 (implementing in part) (“The responsibility for January 6, 2021 lies
with the insurrectionists and those who encouraged them, whose words and actions
have no place on Facebook.”).
206
Id.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 198
scope (or independence) the researchers will have in their inquiries, what
data they will be able to access, and indeed whether design and algorithmic
choices and policies will be considered, as envisioned by the Board. 207 A
further update notes that Meta has conducted consultations with “more
than 20 external stakeholders” without additional detail as to this
consultation process and its outcomes.208
In both the Trump and COVID-19 cases, Meta responded to the Board
by pointing to existing initiatives over which Meta has total control,
including the information it discloses. Largely without tailoring these
initiatives to the substance of the Board’s specific recommendations, Meta
presented them as a direct implementation of the Board’s
recommendations. This dissonance between the Board’s recommendations
and Meta’s responses undermines douek’s argument that weak-form policy
review is sufficient because of the “high reputational costs for Facebook in
disregarding a decision of the FOB . . . [or] any substantial undermining of
its authority.”209 Rather than outrightly disregarding recommendations or
denying the Board’s authority, Meta has mistranslated (and therefore only
partially implemented), or sometimes completely ignored, the Board’s
recommendations. Meta attempts to receive the legitimacy benefits of
purporting to implement the recommendations of this independent body
while in fact making very little (or no) changes to policy and disclosing as
little as possible.
5. Dodging Questions
Meta has proved very reticent to answer the Board’s inquiries. The
Board has the power to request information, 210 but Meta is under no
obligation to adhere to this request and may decline where it determines
that the information “is not reasonably required for decision-making, is not
technically feasible to provide . . . or cannot or should not be provided
because of legal, privacy, safety or data protection restrictions or
concerns.”211 The Board cannot compel Meta to answer.
The Board requested information about the amplification of Trump’s
posts by the “platform’s design decisions, including algorithms, policies,
procedures and technical features,” and any contribution of such design
207
Facebook has not been particularly supportive of independent researchers recently.
See James Vincent, Facebook Bans Academics Who Researched Ad Transparency and
Misinformation on Facebook, VERGE (Aug. 4, 2021, 7:08 AM), https://perma.cc/D5X7-
K48K; Laura Edelson & Damon McCoy, We Research Misinformation on Facebook. It Just
Disabled Our Accounts., N.Y. TIMES (Aug. 10, 2021), https://perma.cc/E22Y-EE6N.
208
META, supra note 141, at 24.
209
douek, supra note 3, at 56.
210
META, OVERSIGHT BOARD CHARTER, supra note 27, at art. 1, § 4.1.
211
META, OVERSIGHT BOARD BYLAWS, supra note 33, at art. 2, § 2.2.2.
199 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
212
TRUMP CASE, supra note 63.
213
MODI & INDIAN SIKHS CASE, supra note 107.
214
This was also noted in the NAVALNY PROTESTS CASE, supra note 138.
215
Under a law passed in India in 2021, it is unlawful for platforms not to comply with
Indian government requests for content removal and account closures, and to disclose
when such removal has occurred. See India’s Internet Law Adds to Fears Over Online
Speech, Privacy, AL JAZEERA (July 15, 2021), https://perma.cc/TV6E-SBMU; Billy Perrigo,
India’s New Internet Rules Are a Step Toward ‘Digital Authoritarianism,’ Activists Say.
Here’s What They Will Mean, TIME (Mar. 11, 2021), https://perma.cc/YJQ8-84TV; Sheikh
Saaliq, India Introduces New Rules to Regulate Online Content, ASSOCIATED PRESS NEWS
(Feb. 25, 2021), https://perma.cc/PMR3-7ZWF.
216
David Kaye, supra note 8, at 14.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 200
framework. Meta also denied the Board the opportunity to hold Meta
accountable for its interactions with governments and its potential
complicity in government projects of censorship and restriction of minority
groups’ freedom of expression.
Where Meta refuses to cooperate, the benefits of the Board and its
weak-form review are limited to public awareness. Knowing that a specific
question was asked and that Meta refused to answer, the public can deduce
what it can from this interaction, informed by the Board’s own assessments
or recommendations. Again, accountability is indirect, resting on public
pressure to which Meta is not guaranteed to (sufficiently) respond. Meta
maintains its control over policy changes and transparency, disclosing very
little (or nothing). This creates a dynamic of very little oversight and
accountability for such platform design and policy questions, which is
particularly concerning in light of the potentially very damaging impacts for
user speech rights.
Adopting similar methods, Meta has also restricted the Board’s ability
to act as anything more than a symbolic appeal avenue for Facebook users.
Restricting the Board’s purview, this time to “important” cases with an
element of political controversy, and limiting its size inhibits Facebook
users’ ability to access the Board to enforce their freedom of expression
rights, otherwise unprotected by Meta, and to remedy “inevitable”
enforcement errors as part of its probabilistic speech governance. This
reflects a broader trend of exclusion and hierarchy embedded in the logic
and operation of Meta’s advertising business model and the machine
learning underpinning the platform. These factors actively inhibit certain
users from participating in online speech, while amplifying the speech of
others, perpetuating traditional social, economic, and political hierarchies.
217
Id. at 18; U.N. Working Grp. on Bus. and Hum. Rts, supra note 43, at 31-35. See
generally Pillar III.
218
This featured heavily in the initial internal and public discussions. See Klonick, supra
note 2, at 2450-51.
201 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
219
META, OVERSIGHT BOARD CHARTER, supra note 27, at Introduction.
220
Corporate Human Rights Policy, supra note 13, at Commitment 3. Note that douek
disagrees. See douek, supra note 3, at 6.
221
Klonick, supra note 2, at 2489, 2499.
222
Their jurisdiction to do so under the Charter was disputed by Facebook. See BREAST
CANCER SYMPTOMS AND NUDITY CASE, supra note 133.
223
Id.
224
ARMENIAN GENOCIDE CASE, supra note 194194.
225
MODI & INDIAN SIKHS CASE, supra note 107.
226
NAVALNY PROTESTS CASE, supra note 139; ARMENIAN GENOCIDE CASE, supra note 194194.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 202
Board
227
META, DRAFT CHARTER: AN OVERSIGHT BOARD FOR CONTENT DECISIONS (2019),
https://perma.cc/C9KT-PDNT; Nick Clegg, Charting a Course for an Oversight Board for
Content Decisions, META (Jan. 28, 2019), https://perma.cc/QKF7-MFV4.
228
douek, supra note 3, at 25. douek again employs the authoritarian regime analogy
here.
229
META, OVERSIGHT BOARD CHARTER, supra note 27, at Introduction. There are very few
explicit limitations for those applying for an appeal. See META, OVERSIGHT BOARD CHARTER,
supra note 27, at art. 2, § 1; META, OVERSIGHT BOARD BYLAWS, supra note 33, at art. 2, § 1.2;
see also Appealing Content Decisions on Facebook or Instagram, OVERSIGHT BD.,
https://perma.cc/CJC5-DNTK.
230
OVERSIGHT BD., OVERARCHING CRITERIA FOR CASE SELECTION, https://perma.cc/J6JL-4R5F.
231
An Empirical Look at the Facebook Oversight Board, LAWFARE,
https://perma.cc/4WSN-9J5E.
232
See, e.g., TRUMP CASE, supra note 63; DEPICTION OF ZWARTE PIET CASE, supra note 141
(posting of images of a traditional blackface cartoon); MODI & INDIAN SIKHS CASE, supra
note 107 (videos concerning Indian farmers protests); HYDROXYCHLOROQUINE, AZITHROMYCIN
AND COVID-19 CASE, supra note 134 (misinformation about COVID-19 treatments); NAZI
QUOTE CASE, supra note 141 (post quoting Goebbels); NAGORNO-KARABAKH CASE, supra note
57 (posting of hate speech against Armenians in the context of the Nagorno-Karabakh
conflict); NAVALNY PROTESTS CASE, supra note 139 (regarding Russian Opposition protests);
most recently, OVERSIGHT BD., META, CASE DECISION 2021-006-IG-UA (July 8, 2021)
[hereinafter PKK FOUNDER ABDULLAH ӦCALAN CASE], https://perma.cc/QQ5M-SY74
(overturning original removal of post advocating for end of imprisonment of founder of
the Kurdistan Workers’ Party).
203 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
users.233 With only twenty Board members and five members per decision
panel, 234 the Board can only hear a handful of cases a year, despite
receiving 524,000 user appeals between October 2020 and June 2021, 235
and twenty-six Meta referrals. 236 Given the enormous scale of Meta’s
content moderation system, the Board “cannot be expected to offer this
kind of procedural recourse or error correction in anything but the smallest
fraction of these cases.”237 This will remain the case even with the potential
increase to forty members.238 Unlike the scalable, accessible appeal body
advocated for by Kaye and the UNGPs, and as presented by Meta, the Board
provides at best a symbolic, exceptional appeal avenue for users. Without
access to the Board, users are largely unable to enforce their freedom of
expression rights because these rights are not guaranteed to users under
Meta’s governing documents and are not proceduralized into decision-
making. Moreover, individuals with an “average” enforcement complaint
without an additional political or high-profile aspect—such enforcement
errors being inevitable and regularly occurring according to probabilistic
content moderation systems—essentially have no independent mechanism
of appeal, being unlikely to fulfil the criteria for the Board’s selection and
unlikely to be heard above the millions of other complaints, in any case. The
Board’s ability to mitigate the problems of this probabilistic speech
governance by providing users with an avenue to remedy inevitable
enforcement errors is therefore significantly restricted.
Meta not only circumscribes users’ ability to exercise and enforce their
freedom of expression rights by curtailing the role and scope of the Board,
but this circumscription is in fact part of the very fabric of Facebook’s
operation and design. Balkin’s understanding of the “digital age” as
engendering a “pervasive social conflict brought about by technological
change,” embodied in conflicting social values and communicated through
law and by extension the interpretation of free speech in theoretical and
233
Facebook framed the Board this way in its Charter. META, OVERSIGHT BOARD CHARTER,
supra note 27, at Introduction.
234
META, OVERSIGHT BOARD BYLAWS, supra note 33, at art. 1, § 3.1.3.
235
OVERSIGHT BOARD TRANSPARENCY REPORTS - Q4 2020, Q1 & Q2 2021, supra note 59, at 3.
See Rebecca Heilweil, You Can Finally Ask Facebook’s Oversight Board to Remove Bad
Posts. Here’s How., VOX (Apr. 13, 2021, 12:20 PM), https://perma.cc/K4A8-MFMC.
236
In Q1 2021 (ending March 31st, 2021), the Board only heard three of twenty-six
Facebook referrals. FACEBOOK, supra note 136, at 4.
237
douek, supra note 3, at 5-6.
238
There is scope in the Charter for this increase to forty members. See META, OVERSIGHT
BOARD CHARTER, supra note 27, at art. 1, § 1.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 204
239
Balkin, supra note 24, at 14 (“We face, in other words, what Marx would have called
a contradiction in social relations produced by technological innovation. By
‘contradiction,’ I don’t mean a logical contradiction, but rather an important and
pervasive social conflict brought about by technological change, a conflict that gets
fought out in culture, in politics, and, perhaps equally importantly, in law. The social
contradiction of the digital age is that the new information technologies simultaneously
create new forms of freedom and cultural participation on the one hand, and, on the
other hand, new opportunities for profits and property accumulation that can only be
achieved through shutting down or circumscribing the exercise of that freedom and
participation. The social conflict produced by technological change is both a conflict of
interests and a conflict of values. It produces opposed ideas of what freedom of speech
means. The social contradictions of the digital age lead to opposing views about the
scope and purposes of the free speech principle.”).
240
Fourcade & Johns, supra note 99, at 813.
241
Id. at 815-16.
242
Sander, supra note 14, at 953; JACK M. BALKIN, FIXING SOCIAL MEDIA’S GRAND BARGAIN 3
(2018) ; FRENKEL & KANG, supra note 23, at ch. 3.
243
Fourcade & Johns, supra note 99, at 822; Johns, supra note 103, at § 4.4. See, e.g.,
BREAST CANCER SYMPTOMS AND NUDITY CASE, supra note 133. In that case, the post was
detected and removed by “machine-learning classifier trained to identify nudity in
photos.”
244
Fourcade & Johns, supra note 99, at 808.
245
Id. at 816.
205 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
246
Fact Checking Policies on Facebook, supra note 203.
247
WHISTLEBLOWER AID, FACEBOOK MISLED INVESTORS AND THE PUBLIC ABOUT EQUAL ENFORCEMENT
OF ITS TERMS GIVEN THAT HIGH-PROFILE USERS ARE “WHITELISTED” UNDER ITS “XCHECK” PROGRAM 1-
4 (2021).
248
Id. at 6-8; see Jeff Horwitz, Facebook Says Its Rules Apply to All. Company Documents
Reveal a Secret Elite That’s Exempt., WALL ST. J. (Sept. 13, 2021), https://perma.cc/V43B-
WQYK.
249
See generally Joseph Thai, Facebook’s Speech Code and Policies: How They Suppress
Speech and Distort Democratic Deliberation, 69 AM. U. L. REV. 1641-88 (2020); ÁNGEL DÍAZ
& LAURA HECHT-FELELLA, DOUBLE STANDARDS IN SOCIAL MEDIA CONTENT MODERATION 13 (2021),
https://perma.cc/Z4WK-ZG2G.
250
FRENKEL & KANG, supra note 23, at 185, 286. See also DIPAYAN GHOSH, TERMS OF DISSERVICE:
HOW SILICON VALLEY IS DESTRUCTIVE BY DESIGN (2020); David Lauer, Facebook’s Ethical Failures
Are Not Accidental; They Are Part of the Business Model, 1 AI & ETHICS 395 (2021); Julia
Carrie Wong, “Good for the world”? Facebook Emails Reveal What Really Drives the Site,
GUARDIAN (Dec. 5, 2018, 8:13 PM), https://perma.cc/5ZCY-7KNB.
251
See Karen Hao, How Facebook Got Addicted to Spreading Misinformation, MIT TECH.
REV. (Mar. 11, 2021), https://perma.cc/KBU2-2T5K.
252
WHISTLEBLOWER AID, supra note 109, at 10; see Keach Hagey & Jeff Horwitz, Facebook
Tried to Make Its Platform a Healthier Place. It Got Angrier Instead., WALL ST. J. (Sept. 15,
2021, 9:26 AM), https://perma.cc/5RHX-QFXL.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 206
253
DÍAZ & HECHT-FELELLA, supra note 249, at 10-12; Sap et al., supra note 181; Thomas
Davidson et al., Racial Bias in Hate Speech and Abusive Language Detection Datasets, in
PROCEEDINGS OF THE THIRD WORKSHOP ON ABUSIVE LANGUAGE ONLINE 25-35 (2019). See also
Karen Hao, Facebook’s Ad-Serving Algorithm Discriminates by Gender and Race, MIT
TECH. REV. (Apr. 5, 2019), https://perma.cc/4NFT-62PK; Bani Sapra, How Facebook’s
Content Moderation Failed Palestinians, WIRED (July 27, 2021), https://perma.cc/9EA7-
HB7B.
254
WHISTLEBLOWER AID, supra note 109, at 2, 6-7.
255
Christina Fink, Dangerous Speech, Anti-Muslim Violence, and Facebook in Myanmar,
71 J. INT'L AFF. 43-52 (2018); Neriah Yue, The “Weaponization” of Facebook in Myanmar:
A Case for Corporate Criminal Liability Notes, 71 HASTINGS L.J. 813-844 (2019); Alexandra
Stevenson, Facebook Admits It Was Used to Incite Violence in Myanmar, N.Y. TIMES
(Nov. 6, 2018), https://perma.cc/3HAN-84WX; David Kaye, supra note 8, at ¶ 41; FRENKEL
& KANG, supra note 23, at 180-181, chs. 9, 10.
256
See Fourcade & Johns, supra note 99, at 819.
257
DÍAZ & HECHT-FELELLA, supra note 249. See generally Christian Fuchs, Capitalism,
Patriarchy, Slavery, and Racism in the Age of Digital Capitalism and Digital Labour, 44
CRITICAL SOCIO. 677-702 (2018). For an interesting Australian perspective, see Ariadna
Matamoros-Fernández, Platformed Racism: The Mediation and Circulation of an
Australian Race-Based Controversy on Twitter, Facebook and YouTube, 20 INFO. COMMC'N
& SOC'Y 930-46 (2017).
258
Fourcade & Johns, supra note 99, at 806.
259
Id. at 824.
207 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
IV. CONCLUSION
260
Zolan Kanno-Youngs & Cecilia Kang, They’re Killing People: Biden Denounces Social
Media for Virus Disinformation, N.Y. TIMES (July 19, 2021), https://perma.cc/4YDH-9V24;
Press Release, Fed. Trade Comm'n, FTC Sues Facebook for Illegal Monopolization
(Dec. 9, 2020), https://perma.cc/299T-Q3JK; Alana Abramson & Vera Bergengruen, Joe
Biden’s Fight With Facebook Is Just Beginning, TIME (July 20, 2021, 7:00 AM),
https://perma.cc/7AY4-ZC6J; Cat Zakrzewski, European Union’s Top Antitrust Enforcer
Calls for Greater Global Alignment on Tech Regulation, WASH. POST (July 12, 2021,
12:43 PM), https://perma.cc/NUF2-AV76; Cat Zakrzewski et. al., Facebook
Whistleblower Frances Haugen Tells Lawmakers That Meaningful Reform is Necessary
‘For Our Common Good’, WASH. POST (Oct. 5, 2021, 9:04 PM), https://perma.cc/YU8E-
YXQE; Sam Schechner & Stu Woo, Facebook Whistleblower Frances Haugen Calls for
New Tech Laws in Europe, WALL ST. J. (Oct. 25, 2021, 1:34 PM), https://perma.cc/7XQF-
PL5L.
261
Mike Isaac, Facebook Nearly Doubles Its Profit and Revenue Rises 48 Percent, as Tech
Booms, N.Y. TIMES (May 5, 2021), https://perma.cc/GA7F-U9LA.
262
The Facebook Files, WALL ST. J. (Oct. 1, 2021), https://perma.cc/ZH5C-CU4C.
263
Ryan Mac & Cecilia Kang, Whistle-Blower Says Facebook ‘Chooses Profits Over Safety’,
N.Y. TIMES (Oct. 3, 2021), https://perma.cc/95SC-9CK7.
264
Casey Newton, Mark Zuckerberg is Betting Facebook’s Future on the Metaverse,
VERGE (July 22, 2021), https://perma.cc/BG3A-BRPS; Tom Wheeler, Seeing Past the Cool:
Facebook’s New Smart Glasses, BROOKINGS INST. (Sept. 21, 2021),
https://perma.cc/9SMC-QFY7.
Spring 2022 META: PRIVATE SPEECH AND THE OVERSIGHT BOARD 208
platforms now being undeniably essential to, and influential in, democratic
processes.
For many “optimists,” 265 the Oversight Board was to provide a
counterweight to these private, economic interests, providing independent
oversight over Meta’s decision-making and policies with the protection of
individual user’s speech rights as its core aim. It has, in many respects,
exceeded the expectations of both Meta and many skeptics. It has adopted
an IHRL-based adjudication framework, which allows the Board to judge
Meta’s actions and decisions according not only to the standards Facebook
sets for itself, but also international human rights standards. This recognizes
the normative weight of the UNGPs as a form of “soft law” as well as the
need for Meta’s speech governance to be tethered to universal standards,
similar to those to which nation-states, with their like ability to censor and
restrict speech, are also subject. It allows users to enforce their freedom of
expression rights against Meta, as Meta itself provides no such rights to
users in its internal platform law.
The Board’s adoption of IHRL counterbalances, and in some respects
conflicts with, Meta’s probabilistic speech governance framework—born
from Facebook’s business model, which relies on maximizing user
engagement and the exploitation of user data—and by the machine
learning upon which the platform operates, which requires continuous and
increasing sources of data. Whereas error in this system is not only
inevitable but accepted (although not always publicly) at a system design
level, error in an IHRL-sense can constitute an abrogation of individual
speaker’s right to expression. However, the Board’s earliest decisions have
proven that the Board can speak Meta’s probabilistic language. It
recognizes where automated enforcement has failed, where context has
not been considered, and where scale and error has disproportionately and
negatively affected certain minority or vulnerable groups. It conveys this to
users and the public in a way we can understand, digest, and potentially act
upon. The Board has also proven itself willing and able to impute to itself as
broad a scope and authority as possible, through both its interpretation of
the Charter and its IHRL framework. Through this, the Board attempts to
temper the operation of private interests and incentives in Meta’s speech
governance, introducing a consideration of public interest into this broader
system.
Yet, these earliest decisions have also shown that the Board’s ability to
improve Meta’s speech governance in terms of policy and design, and
substantively mitigate the concerns private regulation of speech raises, is
limited in a number of ways. Meta has limited the scope of the Board’s
265
Klonick, supra note 2, at 2491-92.
209 STANFORD TECHNOLOGY LAW REVIEW Vol. 25:2
266
Oversight Board (@OversightBoard), TWITTER (Oct. 26, 2021, 4:30 AM),
https://twitter.com/OversightBoard/status/1452960786155024386,
https://perma.cc/6F9A-3YCT (“We know the power of our recommendations lies not in
Facebook’s initial responses, but in the action the company takes. That’s why we
recently set up a team to assess how our recommendations are implemented and to
ensure FB is held accountable.”).
267
Oversight Board Demands More Transparency from Facebook, OVERSIGHT BD.
(Oct. 2021), https://perma.cc/R54S-NAAR.