Social Media as the New Wild West: How Can We Curb Lawlessness on Facebook?

By Rachel Simpson

With every new update, Facebook further encroaches into our world. Some regard Facebook as having qualities similar to a city or state, with a unique social infrastructure that can be seen as a replacement for traditional institutions.[1] The social media giant is slowly gaining all the features of a society – it rolls out civil safety alerts, facilitates charity donations, connects us with politicians and public figures and even has its own marketplace where people can buy and sell.[2] Facebook presents itself seductively as an image of natural and unrestrained human organisation to hide the fact that it is a profit-seeking corporation that relies on our data. Time and time again, Facebook positions itself as “neutral” and a protector of free speech to evade legal, social and economic responsibility.[3] As Facebook becomes more powerful than many nations but lacks a moral code, how can we legislate for Facebook? 

The origins of Facebook are the subject of countless biographies and a blockbuster movie, and are far from the values of “community” and “global connexity” the platform espouses today. In 2004, somewhere amongst the hallowed halls of Harvard University, a privately educated and slightly reclusive young computer programmer by the name of Mark Zuckerberg stole photos of his female classmates to set up a website where Harvard students could rank who was “hottest.” The campus newspaper was outraged. Zuckerberg was charged by Harvard administration with breach of security, violating copyright, and violating individual privacy – but the charges were dropped. It is unknown what was said between Zuckerberg and Harvard administration. Perhaps, like today, authorities simply had to give way to the website’s success and popularity. Within the first four hours of the website being online, people’s photos were viewed 22,000 times.

Evidently, the politics and ethos of Zuckerberg’s Facebook are murky at best. The idea that such social networks were created to promote democracy and egalitarianism is nothing more than a marketing pitch pushed by Silicon Valley.[4] Yet in saying that, the ability to post messages to everyone without editorial control or the intervention of elected representatives is one of the most powerful democratic tools ever devised.[5] Yet Zuckerberg, as the leader of one of the most powerful “nations” on earth, is unelected, unwilling and unsure of how to regulate it. Facebook never had an original “social” purpose, and the weaponisation of the internet to manipulate our view on reality is not unique to the age of Brexit and Trump. 

Having a history of legal breaches is to be expected for a company that has unintentionally become an integral aspect of society. Sometimes Facebook will tweak their platform when under the international spotlight, such as when New Zealand Prime Minister Jacinda Ardern pushed to meet with Facebook leadership in the wake of the Christchurch mosque attacks. However, Facebook and other technology companies receive broad immunity from responsibility for content posted on their platforms by third parties under s 230 of the Communications Decency Act 1996. An integral aspect of social media is ruled by legislation that predates the digital era. 

A user listed in Oran, Algeria posts an image of a Roman relief lying in a field in a Facebook group for antiquities looting and trafficking with more than 373,000 members — the largest of the more than 120 Facebook black market groups monitored by the ATHAR Project. (Screen capture taken on April 30, 2020). Source: ATHAR Project / Facebook

Facebook’s lack of internal policing has essentially put transnational crime networks on steroids, and a lot of illegal activity is able to operate in plain sight with few consequences. An issue that has cropped up recently is the buying and selling of illicit antiquities from some of the world’s most conflict-ridden nations. Katie Paul from the ATHAR Project says the trade in ancient artefacts, wildlife parts and even human remains takes place on Facebook marketplace. No special skills are required to access these illegal groups, but the people involved range from average people digging up artefacts to sustain themselves, terrorist organisations, crime rings, and white collar buyers.[6] When the New York Times picked up on this illegal trade, Facebook said it would commit to deleting selling groups that “violate community standards.” But the pages are not reported to authorities, and nothing in their community standards mention illicit cultural property.

How do we make the rules for a website that presides over a third of humanity? Facebook circulates its own currency, has its own diplomats, and even holds a kind of taxing power through its sharing of the revenues garnered via commerce on its site.[7] It holds enormous influence, yet the field of cyberlaw is still constantly running into foundational issues. If allowing Facebook’s management free reign to self-regulate hasn’t been effective, the question of who should legislate for Facebook becomes prominent. A United Nations or other global treaty-based entity is largely illusory. Letting Facebook’s home country, the United States, be the exclusive regulator would be efficient, but would cause conflict with foundational ideas of international law. The remaining options are letting home countries of users regulate, or letting the users regulate Facebook themselves. But as Jacinda Ardern said: “Ultimately, we can all promote good rules locally, but these platforms are global.”

The crisis of lawlessness on Facebook means it has become a breeding ground for alienation, fragmentation and xenophobia across the globe. If social media is to be the arbiter of society, a place for political organisation and an alternative to government protection, it must depart from its history as an unregulated market mechanism. The nation of Facebook needs laws like anywhere else.

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Featured Image Source: Wikimedia (Commons)

[1] Anupam Chander “Facebookistan” (2012) 5 North Carolina Law Review 1807 at 1808.

[2] David Murakami Wood and Karina Rider “Condemned to connection? Network communitarianism in Mark Zuckerberg’s ‘Facebook Manifesto’” (2018) 21 New Media & Society 639 at 645.

[3] At 644.

[4] Yasha Levine "The Internet, Data and Military Surveillance" City A.M. (online ed, London, 18 March 2019) at 11.

[5] Anne Wells Branscomb "Anonymity, Autonomy, and Accountability: Challenges to the First Amendment in Cyberspaces" (1995) 104 The Yale Law Journal 1639 at 1640.

[6] Staffan Lundén "Perspectives on looting, the illicit antiquities trade, art and heritage" (2012) 17 Art Antiquity & Law 109 at 110.

[7] Chander, above n 1, at 1809.