Facebook Wants Regulation, and That’s a Bad Idea

April 11, 2019 Updated: April 11, 2019

Commentary

You may have seen that Facebook CEO Mark Zuckerberg recently called for governmental oversight of Facebook and similar platforms. Specifically, he asked for regulation of “harmful content, election integrity, privacy, and data portability.”

“I believe we need a more active role for government and regulators,” he wrote in an op-ed in The Washington Post. “By updating the rules for the Internet, we can preserve what’s best about it—the freedom for people to express themselves and for entrepreneurs to build new things—while also protecting society from broader harms.”

The idea of businesses asking for more regulation leaves some observers confused. ABC News introduced the story by saying, “It’s rare that CEOs will call for more regulations from the government instead of fewer.”

On a separate topic, CNN’s lead business writer Matt Egan wrote about the “bizarre shift” of large corporate interests asking for more regulation. In reality, it’s not at all surprising, but in Zuckerberg’s case, the request is dangerous.

Benefits of Regulation

Large corporations like more regulation for several reasons. First, regulation typically raises barriers of entry into the market, so those that are already in the market are more secure. Larger corporations are also often able to take advantage of economies of scale, so they can comply with the regulations while new or smaller outfits have a much harder time. That gives the already-operating corporations a huge advantage.

Regulation is also a benefit to large corporations in that they often have the ability to shape the rules. After all, corporate officials tend to be experts in their relevant field, or they at least have close relations with top people in their field. Those are the people who have the biggest influence as regulations are prepared.

Importantly, corporations usually get a level of protection from hostile litigation as long as they comply with regulations. That is an enormous advantage to an industry. It’s good sport to scoff at the warning labels on ladders, medicine, and certain machinery, but the assumption that the manufacturers oppose or resent the warnings is ill informed. Just recall that the tobacco industry lobbied for the warnings that appear on cigarette packages. As long as those warnings were in place, smokers were unsuccessful in litigation against cigarette companies. (That plan worked until the parties changed and government entities rather than smokers brought the lawsuits.)

In terms of the regulations themselves, Zuckerberg calls for data regulations that apply uniformly across the country and the world. He says that a consistent set of rules governing privacy “will ensure that the Internet does not get fractured, entrepreneurs can build products that serve everyone, and everyone gets the same protections.”

Of course, this is also in line with the industry’s desire for Congress to eliminate a tough new privacy law in California and stop other states from implementing their own strict regulations.

Control

Facebook reports that it has about 1.52 billion daily users. It has come under increased governmental scrutiny regarding privacy ever since it was revealed that the political consulting firm Cambridge Analytica obtained the profile data of more than 50 million Facebook users to identify the personality traits of voters in order to influence their behavior through digital ads.

Despite assurances of better privacy, Bloomberg reported this month that hundreds of millions more records of Facebook users, including identification numbers, comments, reactions, and account names, were openly stored on Amazon’s cloud computing servers.

On top of that, it’s known that Russian agents used Facebook to spread false and divisive information about the candidates and social issues during the 2016 presidential election, and according to the summary prepared by Attorney General William Barr, the recently completed Mueller report outlines Russian meddling in the election through a sustained disinformation campaign that almost certainly involved the extensive use of Facebook.

While Facebook may be doing a bad job of blocking harmful content from its platform, it is miles ahead of rivals like Twitter and Reddit. Zuckerberg knows this, and he knows that regulation will place a bigger burden on smaller companies that cannot afford to hire as many moderators and engineers. That is why his proposal makes perfect business sense.

“Lawmakers often tell me we have too much power over speech, and frankly I agree,” Zuckerberg wrote. “I’ve come to believe that we shouldn’t make so many important decisions about speech on our own.”

Not waiting for government action, he said he was creating an independent oversight panel to review and set guidelines on content moderation and to allow for appeals regarding decisions about harmful content. So, essentially, he is creating his own censorship bureau.

As long as it’s just for his company, that’s fine. He has a platform, and he can run his business as he sees fit. Where he crosses the line is when he calls for the government to come in with regulations. That’s a threat to the First Amendment right of free speech.

Fortunately, it seems that U.S. lawmakers are not inclined to take Zuckerberg’s advice.

Free Speech

“Mark Zuckerberg doesn’t get to make the rules anymore,” Rep. David Cicilline (D-R.I.), who chairs the House Judiciary subcommittee on antitrust, wrote on Twitter. Federal Communications Commission (FCC) Commissioner Brendan Carr said, “I’m a no,” on regulating the First Amendment, and that was retweeted by FCC Chairman Ajit Pai.

The Wall Street Journal editorial board noted that regulations would hurt small businesses trying to compete on the internet, and the Bloomberg editorial board was even more blunt: “Zuckerberg’s Rules Would Hurt Everyone But Facebook” read their headline.

In reality, Zuckerberg has dressed up his call for governmental regulation of speech in an appeal designed to appear as benign as possible. Such regulation would violate the U.S. Constitution, but even if someone could find a way around the First Amendment, giving that kind of authority to the government is a terrible idea.

Those who seek to restrict speech, online or elsewhere, always try to justify their actions by arguing that they’re protecting privacy, protecting the vulnerable from hate-mongers, or some other good cause. However, the parties can get switched around. Who will be “the government” next year? Who will decide what speech should be permitted or prohibited?

The First Amendment, after all, is there to protect unpopular speech. Popular speech does not need protection.

I was once on the U.S. delegation at a meeting of the Organization for Security and Cooperation in Europe. The meeting was in Paris, France, and the issue at hand was restricting hate speech on the internet. It seemed that all of the European nations had banned hate speech on their internet service providers (ISPs), but their laws were proving ineffective since European hate-mongers were getting their message online through U.S. ISPs.

The U.S. delegation stated its case for unregulated speech, but we were not making much headway. Then, a nongovernmental representative spoke up, arguing that evangelical Christian sites that reach out to Jews in an effort to bring them to Christ should be banned from the internet.

Likewise, with all the truly vicious hate web pages on the internet, when the Russian delegation had its turn to speak, it identified the websites of Jehovah’s Witnesses and Hare Krishnas. Those pages, it was said, claimed to state “the truth,” and that constituted hate speech.

The U.S. delegation thought that these two arguments made our point more strongly than anything we could have said. You can’t trust any government with the ability to control speech. If Jehovah’s Witnesses and Hare Krishnas are significant threats that must be silenced, what about Evangelical Christians, Hasidic Jews, and Roman Catholics?

Zuckerberg’s plan might be good for Facebook, but as the Bloomberg editorial board explained, it would be bad for everyone else.

Ronald J. Rychlak is the Jamie L. Whitten chair in law and government at the University of Mississippi. He is the author of several books, including “Hitler, the War, and the Pope,” “Disinformation” (co-authored with Ion Mihai Pacepa), and “The Persecution and Genocide of Christians in the Middle East” (co-edited with Jane Adolphe).

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.

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