DIGITAL CONSTITUTIONALISM
A Constitutional Court?
By Giovanni Paolini
December 14, 2020
1984 or 2020?
George Orwell’s masterpiece, “1984”, describes a futuristic and utopic world, where three superstates, the result of eternally fought wars, share control of the globe. In the State of Oceania, covering most of the the Americas and Africa together with the British Islands, the omnipresent Ministry of Truth, in charge of spreading regime propaganda, is the ultimate arbiter elegantiae. History is rewritten; fake news are spread, depicting the absolute regime as infallible; doublethink, or the impossibility to confront two contradictory pieces of information and depict one as false, dislocates the people’s sense of reality, making them accept information uncritically.
Hit pause.
It is not 1984, the State of Oceania does not exist, but all of the above reminds of the guidelines and community standards online platforms and social networks apply to their users. 2.4 billion users access Facebook, publishing content that is subject to the review and approval of a private company, whose board is composed of non-elected members. In the second and third quarters of 2019 alone, 4.28 billion pieces have been removed from the platform. Twitter has recently called tweets from Donald Trump, the President of the United States, “potentially misleading”. Regardless of the political and factual considerations behind the decision, a private company is able and allowed to express a public judgment, influencing public opinion and possible electoral choices for the upcoming presidential elections. Critics may oppose that private broadcasting networks have always existed, at least in the United States. Politicization is inescapable, but in the context of pluralistic information it is a resource rather than a downside. Social media platforms, instead, are inescapable in themselves, as many authors have argued. The absence of real alternatives, and the role of moderators assumed by these platforms contributes to the lack of accountability perceived by some scholars, comparing Facebook and a feudal State.
Facebook’s Oversight Board
The debate concerning the role of social networks in shaping political and cultural landscapes is vivid, as the crescent globalization phenomenon has expanded the penetration of Twitter, Facebook, Instagram and others in various societies. Global tools lacking global governance, evidencing the deficiencies of national administrations, but also the difficulty in determining a set of values universally shared that can be applied to a transnational platform.
A
first answer, provided by Facebook, is the creation of the so-called Oversight Board. Composed of 40 members, it will be in charge of autonomously and independently evaluating if certain contents are suitable for Facebook or need to be removed. This organism, vested with powers that could ideally resemble a modern constitutional court, takes on appeals from individuals concerning single-object removals of organic content that have already exhausted Facebook’s internal appeal process. If the issue is considered to be appropriate for panel review, a group of five anonymous members of the Board examines the case after analysing relevant information provided by Facebook, the user and any other external source considered. The decision resulting from the panel, deliberated “privately” and to be approved with simple majority, is voted by the whole Oversight Board. Once approved, it is sent to Facebook for implementation within seven days since the release of the decision and can be accompanied by a policy-advisor statement for Facebook. The company is compelled to offer a “public response”, but the recommendations are ultimately of advisory nature.
Criticisms
This organism, born after a long Global Consultancy process among experts and the public society, hides three tricky characteristics, which will ultimately answer the original question behind this article: why a digital constitution is necessary, and cannot be substituted by a private governance tool.
In first place, the scope of the Oversight Board is limited. As stated in the Oversight Board Bylaws, and already mentioned above, only single-object removals of organic content can be appealed by users. Although this formulation may sound sibylline, there are three terms worth analyzing. “Single-object” refers to simple contents, and actions, posted on the platform: photos, videos or status messages are considered as such, while groups, pages and user profiles are to be considered “complex objects” and are actually not covered by the Board’s authority. “Removals” are positive actions where Facebook hides permanently a content from the general public; as of now, it is not possible to appeal against the company’s decision to allow a picture, video or status message to remain visible. “Organic” content refers instead to posts generated by users, generally without commercial purposes. Actions against ads or prioritized content, which generated about 98,5% of the company’s global revenues in 2019, cannot be examined by the Board.
Secondly, the jurisdictional independence traditionally awarded to constitutional courts and entities is far from assured to the Oversight Board. According to the Oversight Board Trust Agreement, which creates the trust responsible for ensuring the establishment and efficient administration of the Oversight Board, Facebook has “relinquished its authority over the trust except with respect to key provisions stated herein and under exceptional circumstances”. None of the key provisions limiting the Trust’s authority are in fact outlined by the Agreement, rendering this reserve vague and subject to interpretation. Furthermore, it is important to remember that the Oversight Board Bylaws explicitly exclude services which are not Facebook and Instagram from the Board’s jurisdiction. A fully-fledged constitutional court would never see its power limited by unclear dispositions or an incomplete mandate.
Finally, the greatest weakness of the Oversight Board with respect to a traditional court is the incapacity of its screening mechanism to effectively withstand the immense number of appeals it will most likely face. In most judicial systems, the recourse in front of a constitutional court is incidental, being requested by a judge during a lawsuit. This limits the opportunity for the citizen to question the constitutional legitimacy of a law, nonetheless it allows the court to properly function without being flooded by countless actions. Considering that in the second and third quarters of 2019 30,8 million pieces of content removals were unsuccessfully appealed, and that the Selection Committee of the Board is composed of five members, even a decimal percentage of Board review requests would result in more than 1000 cases a day to scrutinize. Furthermore, eventual attacks by organized groups filing in multiple and similar requests with the purpose of crashing the submission system would expose the Board to the impossibility of respecting the ninety days timeline between submission and decision imposed by the Bylaws.
Is a digital constitution the solution?
The creation of the Oversight Board stems directly from Facebook’s necessity, and genuine desire, to partially outsource the evaluation of content appropriateness. An independent authority, charged with the responsibility of deciding whether a post is compliant with the Community Standards, resembles a traditional constitutional court in terms of procedure and self-sufficiency. However, as outlined above, its private origin and limited mandate vigorously undermine the probability of achieving its ultimate goal, not to mention the likelihood of the system being exposed to an unmanageable number of daily complaints. A different solution could be the recognition of the social networks as a continuation of public space, officially recognizing the informal role they occupy since their global spread. The power to evaluate what content is suitable for removal would then pass to every national authority, and posts, videos and photos could be obscured in States regardless of Facebook, Twitter or other social platform’s community standards.
This proposal has its evident downsides: in undemocratic and repressive States, social media offer a possibility to gather support against dictatorships and to coordinate subversion actions, as the 2011 Arab spring movements across the Middle East and North Africa (MENA) region have shown. Passing the authority to the national executive power would most likely be followed by repression of free speech, control of private groups and privacy violations. Nevertheless, relinquishing this authority in the hands of the social network cannot be considered a long-term solution: democratic authorities need to step up and consider alternative possibilities in the upcoming years, including a Western Digital Constitution cementing values existing in the public space and often forgotten while surfing the net.
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