The New Yorker Radio Hour - The People Who Will Decide Donald Trump's Fate on Facebook

Episode Date: February 12, 2021

Facebook created the Oversight Board to adjudicate high-level claims about what can and can’t be posted, independent of the company’s leadership. This is a big deal: when Donald Trump was displeased by one of the board’s appointees, he contacted Mark Zuckerberg directly, as Kate Klonick learned in her reporting. And then Trump himself became the new board’s biggest test case. Facebook asked the board to rule on whether the former President should be reinstated, after he was banned from the platform for his role in inciting the Capitol riot. Klonick, an assistant professor of law at St. John’s University, had an unusual degree of access to Facebook to document the creation of the board. She talked with David Remnick about how independent the Oversight Board can be, how it may rule on Donald Trump, and why it’s so hard to get Jewish space lasers off Facebook. New Yorker Radio Hour listeners, we want to hear from you.  We have a few questions about the show and how you listen to it. The survey takes about twenty minutes, and your feedback will help us make our podcast better.  Take the survey here.

I'm David Remnick, and thanks for joining me. The question of how Facebook moderates content on its platform has been, to say the least, vexed from the start. The company has about 15,000 moderators all around the world, and they respond to concerns that are raised about anything and everything by users. They could range from a photograph of a mother breastfeeding to the incitements of massacres in certain countries. And in this country's partisan battles, Facebook is rooted in.

routinely accused of censoring conservatives, but also of complicity in the disinformation campaigns that have benefited Donald Trump. Mark Zuckerberg's idea of how to get out of this terrible mess is something called the Oversight Board. It's an independent body that at the moment has about 20 members from law, academia, politics, and journalism. Their decisions are supposed to be binding on Facebook, right up to Mark Zuckerberg himself, the CEO, and inevitably, it's been call the Supreme Court of Facebook. The Supreme Court was having a relatively quiet launch when Facebook banned Donald Trump in the aftermath of the January riot of the U.S. Capitol. And suddenly, this brand-new group got the biggest case of all, whether the former president

should remain banned indefinitely or not. Kate Klonick is an assistant professor of law at St. John's University, and she was given an unusual degree of access to the company during the creation of Facebook's oversight board. And her reporting on this subject, a brilliant article can be found at new yorker.com. Kate, welcome. Thank you for having me. I'm delighted to be talking to you.

You've been working on this piece about Facebook for quite a while. How did you first get interested in this question of how content is moderated, as they say, and how did you feel when the future of Donald Trump's political persona suddenly became the real focal point of the oversight board? Yeah, well, I've been looking at content moderation and how private platforms control these public speech and public space for a number of years now. And it started off as something that no one knew anything about. Content moderation was something I always had to spend a sentence or two prefacing what I was even talking about before I got into what I had found out. But when I was doing a lot of my earlier work, a lot of what I was finding was that people really wanted a sense of due process and a sense of transparency and accountability around this process.

And what bothered them the most was that these private platforms were doing a lot of this type of moderation work on speech in total secret. And so today, with the banning of Donald Trump from all of these social media platforms, it feels as if this moment has been a long time coming for me. but I'm sure for everyone else, it's something that is just appearing on their radar screen for the first time. So how does the Oversight Board work? We know how the Supreme Court, the real one, works, how a case gets to the Supreme Court, how they decide to bring it on, and then how it's argued and how it's resolved. How does the Oversight Board work? What's the process? Well, there's two ways that the Oversight Board can take cases.

One is from users directly, which I would say is it's central remit. That's really what it was created for. And users can appeal things that were taken down from the site. But what the Trump case is and what you're going to perhaps be seeing more of is that Facebook also has the option to appeal cases to the board directly. And so even if a user, in this case, the user would be Trump, didn't appeal his case to the board directly, Facebook can decide that the case is so significant that they want the board to weigh in on it and they will just take the case from there. How eager is the oversight board to take on the Trump question? I think that the Oversight Board sees this Trump question as something that they absolutely have to weigh in on. Just its mere existence put the question to the board that if they didn't take this Trump case and it didn't come to them, what were they there for?

And if they did take it, you know, everyone is potentially going to be upset with them anyways, but they had to at least say something. And so I think that people on the board are very excited about the potential to really weigh in and set the tone of exactly. how impactful the board can be. And this is the most idealized case, like the platonic ideal of a case to make that case for the board. So Alexei Navalny, who's the Russian opposition leader, now in jail, he was critical of Facebook's ban on Trump. And Angela Merkel in Germany called it problematic. It's not a simple question, and the voices being raised on one side or another are not entirely predictable. How do you think this will go? Personally, and this is not based on conversations with the board, but just on reading their decisions from their first couple of cases, I think that they're very free speech centered. And I think that they're very concerned about proportionality of punishment. And so I think there's a very high likelihood that they reinstate Trump's account eventually, maybe under certain conditions, or they kind of give examples of ways in which the account should be limited or should be on a watch list or something to that extent.

extent I have no idea how creative they're going to get with their policy recommendations. But I think that the idea of a permanent ban of a world leader is something that even the Trump hating freedom expression experts that I've talked to about this makes all of them nervous. It's not just, you don't have to just be a potential world leader for to be nervous about this. People who watch speech and care about speech think that there's something amiss about a permanent ban of this kind for a democratically elected leader, even if he's inciting violence. As a law professor, how do you feel about it? I also have a problem with the permanent ban, but I think that there is an extent at which

this needed to happen and the incitement issue was very ripe. And what Facebook ended up doing and taking this down was the absolute correct move to do at this point. Now, you discovered in your reporting something pretty astonishing, and that's that Trump called Mark Zuckerberg personally about the Oversight Board last May. Why did Trump do that? What did he want? So that call took place after Facebook had announced who the board members were going to be. It was a very evocative list of people, and it did have some controversial figures on it. And one of the people that was on that list, and she's since left the board, but she was initially one of the founding members was Pamela Carlin, who's a Stanford law professor, and who had testified passionately at

Trump's first impeachment hearing against Trump. And he was very upset. And I think that there was a sense that was growing at the time, and he saw it with his executive order a few weeks later, was that he was getting ready to strike on this anti-conservative bias that he and his administration and people in his campaign were pinning on big tech. I'm talking with law professor Kate Clonick, who's reported for the New Yorker on Facebook's oversight board. More in a moment. Now, you have the Trump problem, but on the other hand, you also have a much more amorphous problem, and that's one of misinformation.

Just the giant slurry of conspiracy theory and misinformation that's propagated on Facebook, and you can see its effect on the way we think, the way we read, the way our politics are conducted. What can Facebook do about this and what should it do? I think misinformation is a great, great topic to send to the board. In the last couple of years, since the 2016 election and misinformation and disinformation became the topics that everyone was talking about, one of the things that you've seen people call on platforms to do is to remove more and more of this information or to install their own fact-checking processes or to have some type of, of balanced representation of what they're going to keep up or take down.

I think that what you're seeing is the gatekeeping function that journalism provided for so long is in place for journalism, but that doesn't necessarily mean that's in place for user-generated content that people are posting on sites. And at the scale that people are posting, you're simply not going to be able to do that kind of fact-checking in a meaningful way. as I'm sure, like you know, as years of fact-checking, that facts are not quite as black and white as people make them out to be. And so I think that the board is going to start weighing in more significantly

and flagging this as an issue and that maybe that will have a public education role. There's definitely subtleties, and there are all kinds of ways to argue fact. But I think we can agree that there really is no such thing as a Jewish space laser that ignites forest fires from out of space or all the other theories that we've heard taking hold even in the halls of Congress. Will Facebook just say, well, you know fact is a funny thing,

throw up its hands, and not adjudicate any of this? Well, it's so interesting. Let's use the Jewish space laser because I think that this is kind of an amazing example. I just want you to know that I have one at home. I really tell people that. So one of the things that you'll hear a lot when you do content moderation for any significant amount of time is that you have to understand things in context.

What would it look like to decide that you were going to ban Jewish Space Laser? Are you going to ban that phrase? Are you going to set up an automated process that takes down every post that people use the term Jewish Space Laser? What happens then if people want to be creative and make a short play that they post on Face Laser? book that involves the Jewish base laser. Mel Brooks already did it. Right, exactly. And so what I'm trying to say is like this is part of the context and intentionality that you is completely lost when you just have words or thoughts or photos or

videos going from one person straight out into the world without any type of curation. You are going to have misunderstanding and you're going to have it's going to be very hard to decide when someone is intentionally trying to spread misinformation and harm other people versus when someone is mocking that someone is trying to harm other people. Totally understood, but you also don't want to throw up your hands. I mean, Facebook says that it's not a publisher. Isn't there a fair amount of hubris, though, to the idea that Facebook can create an international mechanism for adjudicating free speech disputes?

Is this just a kind of cosmetic? thing? Oh, I don't think it's a fair amount of hubris. I think that it's actually, it only would strike one as hubris if you were in denial about how many decisions they're already making around these types of things without any transparency or any accountability or any thoughtfulness on behalf of people who use its platform. And so I think that, of course, there's a chance that it ends up being a cosmetic thing. In fact, there are a couple of scenarios. about a year ago about what I thought that this was going to be, that I was running through my head. And one of them was that it just dies when it first launches.

Never hears anything. Its decisions are simple and short, and it's not a serious thinker, and it doesn't tell us anything about freedom of expression or anything else. But I think that there is, you know, there's that phrase that, you know, when you start an institution, it's 20% the documents and the founding document. and it's 80% the people, as you can kind of see from the list of people. Nobel laureates, the former prime minister of Denmark, UN officials, directors of human rights organizations, law professors. And I think that they have picked people who are just incredibly serious and have very big reputations, and they are not willing to put their reputations in play here for something that is going to be half-assed. I don't know if I can say it.

What would be the effect? We always hear about Facebook's algorithms. Would altering those algorithms, would working on those algorithms alleviate some of the problems that we worry about? So one of the things that is interesting about algorithms or machine learning or any of these terms that you're hearing going around these days, if you're talking about an algorithm, it means that there's someone, a human, that put it into play.

And it is playing off of, if it's machine learning, it's gathering data and learning off of material or data that is generated by humans. So I think it's a little bit of a canard to say, let's fix the algorithm, let's fix this process. Well, it's not, it's people all the way down. It's not actually something that like ends with an algorithm. And so, yes, there are ways that the algorithm could be changed that maybe people have a better experience and some of this more insidious content, violent content, graphic content finds its way off the site or gets banned or is confined or aged gated or all of

these things. Those are all things that you could do with algorithms. The problem is that there's always going to be for all of the reasons that we just talked about with the Jewish Space Laser. Everything is so contextual and we're just not at a point yet where you can use algorithms to reliably take down all of this type of information and not catch dolphins in the net. So what's the likelihood that this board can really truly be independent of Facebook? Yeah, so there's a bunch of different types of independence that I think that we should talk about. So one of them is obviously financial. And they created this intermediate organization a trust to hold $130 million that Facebook gave as a non-revocable gift.

And that helps give them financial independence from Facebook. But then you also really do have to look at how they're going to select their new members, and they're going to start selecting their members without any involvement from Facebook, unlike this kind of first panel. And so that creates their own independence. And then I think that you're going to see that their decisions are going to part ways from Facebook quite frequently. And if they part ways consistently and it ends up having an impact on Facebook's long-term policy, you're going to see that it's independent and it really is true oversight.

but we're not going to be able to see that until we start to see some of their decisions. You spoke to Mark Zuckerberg for your piece, and he talked to you about the creation of this oversight board. What are the stakes in it for him? So when I had a chance to sit down with Mark and talk to him about this, the impression that I had from our conversation was that he was, you know, at the core, this person who was kind of a coder that had become this, arbiter of truth or this denying being an arbiter of truth, but he was in fact running a

company that was making some of these multinational decisions about speech and determining whose speech stayed up and whose speech went down. That didn't sound like something he enjoyed. Let's put it that way. It sounded like something that was very hard and he didn't necessarily feel qualified to be doing. And so I think that this for him, was a way of being able to delegate this role to a body of people that would be in a better position to make some of these really hard choices. And so that he could focus on other parts of the company. What are the stakes in this for the economic future of Facebook, for the bottom line of Mark Zuckerberg? Yeah, so this is an interesting question, and it's a little counterintuitive, because I think that it's a mistake to think of this

delegation of power, this kind of decision to hand over part of the keys of the kingdom to another outside body as a bad business decision. I think it's actually a very smart business decision because I think it takes a giant pile of controversy and headache and everything else and says, you know, if this is really a hard decision, just like the Trump decision, we're going to give this to this body of international experts that are going to kind of weigh in and tell us what to think. and then we'll follow their directive, and it's no longer just us sitting in Menlo Park. Does it have any effect on his other great headache, which is the push for antitrust action against the big tech companies? This does have a role. I think this could have a small role in that, in that it shows that he is willing to robustly self-regulate

and that he's willing to hand over some of his power to an outside body. And so if he's looking to signal to Washington that, hey, listen, we're doing an okay job, leave us alone, we can regulate ourselves, that's basically what he's doing here. I don't think that that's the primary motivation of this, although I'm sure it is one of, you know, in the top five. Facebook has got billions of users all over the world. Is it fair to ask whether any government is actually large enough to regulate Facebook? Oh, certainly. I think that they can regulate Facebook within their boundaries. There are countries that have banned Facebook from within their boundaries all the time. I mean, China, for example. But I don't think that there's one country that can just make Facebook go poof, not even the United States. Kate Clonick, her work on Facebook's oversight board is at New Yorker.com. And if you didn't get to it yet, please don't miss part two of this podcast. It's an episode produced in collaboration with our friends at Radio Lab.

Producer Simon Adler looks in great depth at the creation of the board and the problems that it's struggling with. This is The New Yorker Radio Hour. Thanks. See you next time. The New Yorker Radio Hour is a co-production of WNYC Studios and The New Yorker. Our theme music was composed and performed by Merrill Garbus of Tune Arts, with additional music by Alexis Quadrato. This episode was produced by Alex Barron, Emily Bodhi. AVE Carrillo, Riannon Corby, Calalia, David Krasnow, Gauphin and Putubuele, Louis Mitchell, Michelle Moses, and Stephen Valentino,

with help from Alison McAdam, Morgan Flannery, Meng Faye Chen, and Emily Mann. The New Yorker Radio Hour is supported in part by the Cherina Endowment Fund.