In the Press
Tuesday, May 24, 2022New York’s Red-Flag Law Failed in Buffalo. Here’s How to Fix It. — A Commentary by Ian Ayres ’86 and Fredrick Vars ’99 The Washington Post
Tuesday, May 24, 2022A Conservative Lawyer’s New Target After Abortion: Affirmative Action The New York Times
Tuesday, May 24, 2022Abortion Questions for Justice Alito and His Supreme Court Allies — A Commentary by Linda Greenhouse ’78 MSL The New York Times
Monday, May 23, 2022SEC Prepares to Crack Down on Misleading ESG Investment Claims Financial Times
Tuesday, December 3, 2019
Govern Fast and Break Things — A Commentary by Farzaneh Badiei
The following is a commentary from the Justice Collaboratory’s Director of Social Media Governance Initiative Farzaneh Badiei.
Social media platforms that lack legitimate and coherent governance are prone to be called upon by various authorities to generate a quick, outcome-oriented solution in the face of catastrophes. The reactions are usually to online incidents and discoveries — for example, a sudden discovery of a violation of privacy, or some atrocity that spread online. When platforms act in response to these calls without having a legitimate governance mechanism in place, their responses are ad hoc and without a strong foundation. This can negatively affect the Internet, global online platforms and online communities — and might not even resolve the issue.
To address the problem, we need to encourage platforms to establish governance mechanisms, informed by various governance strategies, such as procedural justice. Procedural justice requires the decision makers to be neutral and transparent, to have trustworthy motives, and to treat people with respect and dignity.
Governance differs from various processes and policies that platforms already have. We can define governance as the structure through which the rules that govern our behaviors online are themselves generated, enforced and reformed. If it does not apply coherently to the ecosystem of the platforms, we will face a patchwork of ineffective solutions. We will also see more than half-baked initiatives that governments or others try to impose or that platforms adopt themselves.
To illustrate the importance of having a legitimate and coherent governance mechanism, we (at the Justice Collaboratory) will publish a series of commentaries. The commentaries will be related to issues for which social media platforms do not have a governance solution, and the efforts that are taking place to overcome those issues. The framework we use is based on the concepts of governance, legitimacy, and procedural justice.
The starting point, in this blog, is the Christchurch Call to Action (aka the Christchurch Call). The Christchurch Call is an initiative led by the New Zealand and French governments to “eradicate terrorist and violent extremist content online”, after the mass shooting at two mosques in Christchurch, New Zealand on March 15, 2019. Some tech corporations and governments made several commitments that ranged from terrorist content removal to providing due process. Until now, three international organizations and 48 other countries have joined the Christchurch Call (the United States remains conspicuously absent from this list).
Outcome oriented solution
Despite the emphasis on due process and human rights, the ultimate goal of the Christchurch Call is to reduce and limit the amount of terrorist, extremist content. Some governments involved with the initiative believe that removing content is a step toward fighting against extremism. For example, the Prime Minister of Canada believes that:
“Terrorist and extremist content online continues to spill out into the real world with deadly consequences. Today, we are stepping up to eliminate terrorist and violent extremist content online. Together, we can create a world where all people – no matter their faith, where they live, or where they are from – are safe and secure both on and offline.”
It is alarming that there is such major focus on the outcome (elimination of terrorist and violent extremist content). The Christchurch Call contains commitments to due process but they are weak. There is no strong focus on the need for a legitimate decisionmaking process. People don’t perceive governments’ actions to be legitimate just because they are the governments. This is specifically true when governments use mechanisms that are not democratic such as “cooperation” with tech corporations.
Reforming a top down approach
Top down approaches do not inherently generate distrust in users, but the processes must be transparent, give people a voice, treat the users with dignity and convey trustworthy motives or intentions. These attributes did not have a strong presence in the process that led to the Christchurch Call . The initiative was the governments’ attempt to quasi-regulate social media platforms – not through legislative efforts but through opaque cooperation with tech corporations. New Zealand and France got together with a handful of tech corporations such as Microsoft, Facebook, and Twitter, and negotiated a text that was not revealed publicly until very close to its adoption. In less than six months it went from meetings and talks to a process that will be implemented in services on which billions of users depend.
The Christchurch Call was a top down process from the start despite the efforts to include others. It is problematic because it allows big corporations to please governments by offering to solve serious social problems using temporary relief. It would be better instead to focus on legitimate governance, which would give a way to address those social problems systematically. By asking tech corporations to regulate their users with no coherent governance mechanism in place, governments endorse these platforms’ business models. Because governments endorse a handful of companies’ approaches, the corporations become more powerful, such that no one else can compete with them. This is when companies can use such authoritative, incoherent ways of providing governance as brand promotion.
The Christchurch Call has been trying to be inclusive, to give communities a voice and to address the governance related questions during the implementation phase of the commitments. The government of New Zealand has been trying hard to be transparent and adopt a process that includes various stakeholders, is consultative and considers Internet freedoms and human rights. However, the implementation plan has shortcomings. The governments and tech corporations had already decided about the institutional design of the organization that implements the Christchurch Call. Since almost the beginning of the Christchurch Call negotiations, the New Zealand government and tech corporations considered the Global Internet Forum to Counter Terrorism (GIFCT), an opaque industry led forum, as the incubator of the commitments. GIFCT is now becoming a permanent institution and has promised to changes its structure. It has come up with an advisory committee that is to include civil society and governments, and a Board comprising tech corporations. The plan is still in the making, but the “advisory” role they have considered for civil society, the transparency plans and many more governance issues are unanswered. They have various working groups that members can join. These working groups might partly address the concern about coherent approach to governance but there remains several issues: the academic working group mandate is not clear, the algorithm working group is outcome oriented instead of being governance oriented, and there is a technical working group that is separated from its policy consequences. All the final decisions are still to be made by the GIFCT Board, where the votes are reserved to members (who all need to be tech platform operators).
The conveners of GIFCT have promised that if the civil society and stakeholders participate, they can answer the process related questions together. However, the tech corporations and governments have already decided what role others should assume in this institution. To discuss whether the GIFCT’s approach is legitimate, participants need to “go inside the room”, assume the advisory role and implicitly grant the legitimacy of the platform in the first place.
This month (December 2019), various stakeholders gather to test an operationally ready “shared crisis response protocol” that GIFCT companies will follow. It is not clear through what processes the New Zealand government, law enforcement, and civil society have developed the protocol. It is also not clear how much of the feedback they will receive during the meeting would be taken into consideration. Despite the promises that this will be a living, evolving protocol, it is uncertain how the users can seek reforms.
Governments and tech corporations cannot seek governance legitimacy through involving stakeholders as after thoughts. Communities – the users of these platforms – have no say in how governance institutions should be built. Communities will not be in charge of building institutions, and they will not be involved with running those institutions, but (with this kind of government support) everyone will end up subject to those institutions.
Imagine online platforms with a legitimate governance mechanism
To make it clearer what a coherent, legitimate governance mechanism could look like, let’s imagine that platforms had a “governance mechanism” in place which could be used to respond to abhorrent live streaming of murder and terror (which is what precipitated the Christchurch Call). I postulate that the platforms could have responded to the Christchurch attack in a much more effective way if they had considered the following governance components in their processes (and in advance):
- A way to include communities in decisionmaking processes on equal footing;
- A known mechanism to transparently suggest a policy approach by any of the stakeholders;
- An avenue to challenge the existing policies with the possibility to reform them, preferably in a bottom up manner and at the request of people;
- A more effective enforcement of and compliance with the policies by being more inclusive, treating people with dignity and explaining the rationale behind the decisions.
The collective approach to social media governance should move away from being reactionary and outcome oriented and move toward using strategies that can bring legitimacy to the decision making process and shape, enforce and reform the policies. Governance and procedural justice in these discussions are usually set aside or are not addressed cohesively. In my next blog I will explain how lack of a coherent governance mechanism also leads to hasty adoption of outcome oriented solutions through algorithms.