Friday, November 23, 2018

A Facebook court? That just nicks the surface of the "due process" problem for social media and even web hosts

So how will due process for users of social media companies develop?
Major media sources have overlooked a major case, Manhattan Community Access v. Halleck, No. 17-702, concerning the question as to whether a public access cable television network is indirectly a “state actor”.  If so, legal experts say, this could open social media companies to more “First Amendment” litigation when they remove content or users (probably not when they refuse to monetize). The Supreme Court accepted the case Oct. 12.  The CNBC story by Tucker Higgins is here

I do wonder, however, how the reasoning really connects, that this could somehow make Facebook a “state actor”.
But heading in a different direction, on Black Friday the Washington Post offered an editorial on “What Facebook’s High Court Should Look Like”. 

The obvious question in my mind is, should a social media court exist just for Facebook?  Should all the companies form some sort of consortium so the same body could handle appeals from all of them?  That seems to make more sense. Consider a recent paper, "The Santa Clara Principles", circulated by EFF, on content moderation. 

But this leads to another issue – such a body would be international and handle cases from all “western” countries.  That leads to the next question – how to handle appeals regarding copyright infringement (or even trademark or patent), as well as objectionable content. And, you guessed it, that slams right into the controversy over Articles 11 and 13 in Europe, which will probably come to a head, in a way that affects both social media companies and web hosting, later in 2019. It is likely that standards would be much more internationalized and depend less on US law.  Already, companies are wondering if they could have to set up a separate Web for the EU, or deny EU users to content from outside their borders that didn’t go through their filters, which could affect Americans when traveling to the EU, to say the least. (Cory Doctorow's latest paper on Article 13 came out Nov. 21, here.) 

And in considering these questions we need to remember that social media companies and web hosting (along with domain registration) operate very differently. But web hosts have come under pressure especially since Charlottesville (really it may have started with Paris in 2015), and the calls for regulation from the far Left get more strident.

In libertarian circles, there are other concerns:  independent media (often run by sole owners) could face shutdowns if they don’t show enough financial self-sufficiency or “popularity”, largely out of new “straw man” fears over security and the idea that sole owners could be foreign agents (an idea that seems to have filtered West from Putin himself). 
So case before SCOTUS about an obscure public access channel, or a Washington Post editorial about Facebook court, hardly covers the discussion.  Mark Zuckerberg, however, comes as close as any person to “ruling the world” with his digital state.

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