Regulating Facebook et al

Over the past few years, as my concerns about the media environment we inhabit have grown, I have found Tom Wheeler’s columns and interviews invaluable. Wheeler–for those of you unfamiliar with him– chaired the Federal Communications Commission from 2013 to 2017, and is currently both a senior fellow at Harvard’s Kennedy School Shorenstein Center and a visiting fellow at the Brookings Institution.

He’s also a clear writer and thinker.

In a recent article for Time Magazine, Wheeler proposes the establishment of a new federal agency that would be empowered to regulate Internet giants like Facebook. He began the article by noting Mark Zuckerberg’s apparent willingness to be regulated–a willingness expressed in advertisements and testimony to Congress. As he notes, however,

A tried-and-true lobbying strategy is to loudly proclaim support for lofty principles while quietly working to hollow out the implementation of such principles. The key is to move beyond embracing generic concepts to deal with regulatory specifics. The headline on Politico’s report of the March 25 House of Representatives hearing, “D.C.’s Silicon Valley crackdown enters the haggling phase,” suggests that such an effort has begun. Being an optimist, I want to take Facebook at its word that it supports updated internet regulations. Being a pragmatist and former regulator, though, I believe we need to know exactly what such regulations would provide.

Wheeler proceeds to explain why he favors the creation of a separate agency that would be charged with regulating “big Tech.” As he notes, most proposals in Congress would give that job to the Federal Trade Commission (FTC). Wheeler has nothing negative to say about the FTC but points out that the agency is already “overburdened with an immense jurisdiction.” (Companies have even been known to seek transfer of their oversight to the agency, believing that such a transfer would allow its issues to get lost among the extensive and pressing other matters for which the agency is responsible.) Furthermore,  oversight of digital platforms “should not be a bolt-on to an existing agency but requires full-time specialized focus.”

So how should a new agency approach its mission?

Digital companies complain (not without some merit) that current regulation with its rigid rules is incompatible with rapid technology developments. To build agile policies capable of evolving with technology, the new agency should take a page from the process used in developing the technology standards that created the digital revolution. In that effort, the companies came together to agree on exactly how things would work. This time, instead of technical standards, there would be behavioral standards.

The subject matter of these new standards should be identified by the agency, which would convene industry and public stakeholders to propose a code, much like electric codes and fire codes. Ultimately, the agency would approve or modify the code and enforce it. While there is no doubt that such a new approach is ambitious, the new challenges of the digital giants require new tools.

Wheeler proceeds to outline how the proposed agency would approach issues such as misinformation and privacy, and to describe how it might promote and protect competition in the digital marketplace.

It’s a truism among policy wonks that government’s efforts to engage with rapidly changing social realities lag the development of those realities. The Internet has changed dramatically from the first days of the World Wide Web; the social media sites that are so ubiquitous now didn’t exist before 1997, and blogs like the one you are reading first emerged in 1999–a blink of the eye in historical terms. In the next twenty years, there will undoubtedly be digital innovations we can’t yet imagine or foresee. A specialized agency to oversee our digital new world makes a lot of sense.

I’m usually leery of creating new agencies of government, given the fact that once they appear on the scene, they tend to outlive their usefulness. But Wheeler makes a persuasive case.

And the need for thoughtful, informed regulation gets more apparent every day.


  1. An agency to monitor social media sounds like a great idea but how? It was reported just this week that half a million Facebook profiles were discovered on the web. We have to accept that our privacy went away long ago and our personal information is available to anyone for the right price. I say good luck with that. It will be difficult to put that toothpaste back in the tube.

  2. When, how and why does “regulation” end and “denial of freedom of speech” begin? The proposals to assign the regulation of communication to the Federal Trade Commission questions the scope of their responsibilities vs. the responsibilities of the Federal Communication Commission. Does the Federal Communication Commission bear any responsibility regarding trade issues reported on the Internet?

    The legal world has not yet caught up with this electronic age we now live in, like it or not; misinformation is rampant and privacy is gone from even the lives of those who do not use the Internet. Identity theft is one area that comes to mind. Those of us who do use the Internet receive unsolicited communications from agencies who have purchased our contact information and trying to end or “unsubscribe” from them is a useless effort. Is that a “trade” issue or a “communication” issue? Does it really require an additional government agency or additional regulations in both the FTC and FCC to cover within their scope of responsibilities?

    AgingLGirl is on target with her comment, “We have to accept that our privacy went away long ago and our personal information is available to anyone for the right price.”

  3. I wonder how many posters here still use a landline telephone. My parents do and don’t spend any time on the internet. Their phone rings all day long from solicitors. My stepmom gets a kick out of cussing them out and then hanging up. It makes me remember why I stopped using a landline.

    I always love former department heads who have ideas on how to do things once they leave their position where they could have done something. 😉

    As a Facebook user for both self and business, my journalistic page got hammered on February 1st by the algorithm and my posts have been censored twice for misinformation. The last one involved an AP article about our intelligence community. I said the IC and Facebook work hand in hand while the IC spies on Americans nonstop. Facebook said it violated their community standards for misinformation. I appealed the decision but there is nobody to discuss it with. Their independent fact-checkers have the first and last word. The facts were contained in the AP article I attached to the post.

    The government is currently using these private social media companies for end runs around the constitution. Journalists, activists, social organizers, protestors, etc. are all getting clamped down on while the government keeps clamoring about Russia and misinformation. It’s a ruse. A smokescreen.

    The prosecuting attorneys against the insurrectionists revealed a redacted document showing that most of the planning of the insurrection occurred on Facebook, a heavily surveilled social media. Cops, school administrators, journalists, etc. all have backdoors and programs to monitor activity on Facebook. Yet, they couldn’t prevent domestic terrorists from raiding the Capitol.

    It was a political ruse.

    Ask Wheeler if he’s ever used Palantir or worked with Peter Thiel. I bet he has since the US government uses this company a lot.

    This is from a round table with Mike Pompeo:

    “Thiel and Pompeo also discussed whether Chinese foreign exchange students should be allowed to study in the United States. “We are in fact an open country, [and] I think that makes it riskier to have those students study here because the capacity for that information to end up in places that benefits the Chinese communist parties model — its ideology — is pretty significant,” said Pompeo.

    Thiel agreed, saying Pompeo was “basically right,” and cited universities’ potential complicity with Chinese wealthy donors as another issue. “Are they getting money from Chinese funding? There’s probably been a lot of abuse on this in various ways,” he said without elaborating.”

  4. Pretty simple question here….since so many think anything they read on the internet is the God’s honest truth, and especially, the much loved Facebook, shouldn’t a source like that be obligated and only want to publish the truth? How do you make that happen?

  5. Creating an agency only creates the tools. It does not set the policy and that it key. If the whole purpose of this new agency is to set policy, then power to them.

    The policies need to be clear and the enforcement should be done by the media provider and not thrust that burden on the tax payer. There should be clear appeals processes with stipulated service levels, so we avoid the black hole of censorship that Todd seems to be stuck in.

    I still think that section 230 needs to be abolished and let these companies thrive or die on their own. They need to bear the cost of bad business models. Nobody is going die if social media goes away or changes significantly. It may even revive main stream media. The root problem is that the barriers to publishing false information have become so low that it becomes destructive to a free and open society. We need to raise the bar even if that means the market place of ideas shrinks a little, because in the current market, it is so easy to censor even good ideas and truthful speech just by creating information overload. Raise the bar!

  6. Todd Smekens “The government is currently using these private social media companies for end runs around the constitution. ”

    Concurrently, the government is making a far more aggressive and overt frontal assault on journalists worldwide who would publish the “Collateral Damage” video.

    Even if nothing false has been published, a simple allegation of “threat to national security” is sufficient to jail, isolate and torture any journalist in the world who threatens national security. No court hearing, legal charge, or conviction are necessary.

    This scenario, of course is not a dystopian future possibility, the precedent has already been set and journalistic suppression is now taking place.

  7. The First Amendment referendum questions that have already been put to the American people are:
    1. Shall criticism of the government be a crime? The majority response has been “Yes.”
    2. Shall maximum punishment for this crime be life imprisonment? The majority response has been “Yes.”
    The remaining questions for debate are, shall a public, or private, entity have the responsibility for monitoring for “criticism of the government,” and determining the penalty that shall be applied?

  8. Interesting article in Science Daily.

    A new study explains why people rarely look at a situation, object or idea that needs improving — in all kinds of contexts — and think to remove something as a solution. Instead, we almost always add some element, whether it helps or not.

    “Additive ideas come to mind quickly and easily, but subtractive ideas require more cognitive effort,” Converse said. “Because people are often moving fast and working with the first ideas that come to mind, they end up accepting additive solutions without considering subtraction at all.”

    The researchers think there may be a self-reinforcing effect.

    “The more often people rely on additive strategies, the more cognitively accessible they become,” Adams said. “Over time, the habit of looking for additive ideas may get stronger and stronger, and in the long run, we end up missing out on many opportunities to improve the world by subtraction.”

    The idea that if we add another Federal Agency some how all these problems of misinformation, etc., would go away is the easy additive “solution”. As the old saying goes “the devil is in the details”.

    We do know there are Scientific Truths like gravity, etc. How would you “police” religious postings which are solely based on belief and a supernatural origins rather than facts.

    The system we have maybe flawed – adding an another Federal Agency would not IMHO be a solution.

  9. The insane level of irony here is that in the perfect libertarian world that occupies Zuckerberg’s brain, Section 230 of the Communications Decency Act of 1996 shouldn’t be necessary and shouldn’t even exist. The reason is that in a society of libertarians no one would ever think of posting something that wasn’t true, much less incendiary, or hurtful to a fellow citizen. But if it did, there would be mechanisms, namely the courts, to resolve such injuries to individuals or groups. Libertarianism depends on very high levels of personal (including corporate) responsibility, and therefore liability, to operate.

    There would also be no such things as oligopolies and monopolies, because perfect markets and innovation will ALWAYS enable competitors to challenge dominant suppliers in any market and bring choices to consumers in such a way that no one supplier could dictate how the products work, how they are sold, how profits s are derived and how markets operate.

    So, let’s give ol’ Zuck what he wants:

    1) Repeal Section 230 of the CDA, or significantly reform it to shift the external costs of their platform (the ill effects of misinformation, incendiary information and slander on individuals, groups and society) back to the business that generates it.

    2) Have the FTC and Antitrust Division of the US Treasury aggressively break up businesses built on predatory and monopolistic business practices. Start by forcing Facebook to divest itself of Instagram and WhatsApp. Then require Facebook to ASK all of its users (they are not customers, they are just “fuel”) permission to: a) use their account feed to accelerate posts and pages Facebook feels would generate higher value to advertisers and b) use their data (on both Facebook and cross-platform) to data brokers and advertisers.

    These changes would likely have the effect of either forcing Facebook to fundamentally change their business model to a fee-for-service with no advertisements, or a hybrid model where some users allow their accounts and data to be used in exchange for no service fee). It would also force them to get control over the content of the millions of private groups and pages that operate on their platform, as the liability of not doing so would be existential.

    Rinse and repeat for Google and Amazon.

    The other is that Facebook simply goes out of business because it cannot adapt to the more libertarian free-market world that its majority shareholder finds so attractive.

  10. Gordon, is that for real? People want to hear no criticism of the gov’t? Oh, my George Orwell!
    Sheila, I want to echo your optimism, but I would not trust Zuckerberg as far as either you, or I can throw him.
    Otherwise, I think Wheeler has a good idea.

  11. I concur with Monotonous Languor. Additional review is not a solution.

    The amount of government review applied at the time of (anonymous) publication of the Federalist Papers was sufficient.

  12. We, and by that I mean the entire human race moving forward hopefully through the centuries, can’t afford our exploded and still exploding population, lifestyle, and technology. That combination is unaffordable by the earth’s natural resources and waste disposal capabilities. That’s a simple fact.

    To enjoy those upcoming centuries we have to manage ourselves to remain adapted to reality and that will require some fundamentally changing culture. That’s another simple fact.

    One thing that is obsolete and in need of renovation is our notion of the balance between rights and responsibilities. The current pandemic has been one of our teachers. The right to act in ways that endanger others depends on our willingness to act responsibly or must otherwise be regulated to ensure that we do. That’s not new. Liberal democracy has always said that my rights must end at your freedom.

    It would be nice to think that no regulation is required to prohibit acting irresponsibly. We know that we aren’t all capable of doing that so most of our laws are based on holding people unable to act responsibly accountable and extract some penalty on them to help them learn that they must.

    We are already chaffing at regulation and begging for relief from it but the truth is that almost all regulations are based on actual experience with people not able to resist inflicting their needs on others, collectively (corporately) and privately, and their transgressions need to be prevented by the force of law.

    What we are free to do has changed drastically since the US Constitution defined liberal democracy but the principles that it enshrined still hold true. However, the application of those principles must be much different to adapt to the current situation that, to remind everyone, we alone are responsible for having created.

  13. Hmmm might this subject also recall the numerous comments in the past about teaching critical thinking in school?

  14. Agree with Joanne Green’s statement: AgingLGirl is on target with her comment, “We have to accept that our privacy went away long ago and our personal information is available to anyone for the right price.” Will add, that many times that information is available for no price at all.

  15. I don’t know that we need a new agency to regulate social media. Those things often don’t work out well. What needs to be done though is regulation of the algorithms used by social media.

    The way the algorithms are set up on things like Facebook, once you read something crazy from a “friend,” then next time you get on that social media site you are fed more of the same. The craziness is constantly being reinforced and accelerated. Many people don’t take the bait, but some do. What these social media websites are doing, again with their algorithms, is filling people’s heads full of poison. They’re not being presented balanced views about the issues. Many communities don’t have a daily newspaper anymore. The only information they get is from places like Facebook or, if they watch TV, from a slanted network like Fox, or even worse, Newsmax.

    Things like teaching civics or critical thinking skills aren’t going to matter until you do something about the algorithms that are poisoning people’s minds.

    Read the story about Rachel Powell if you want to know how people can become radicalized by what they read on social media.

  16. Questions for the lawyers:
    Is the FCC the more appropriate regulatory agency re social media than the FTC?
    Is there any legal reason Facebook et al can not charge for each message sent? with the fee increasing with the number of recipients?
    Please, don’t tell me about fees being discriminatory against the poor. That’s resolved by having a given number of free messages sent each time period (hour, day, week, month or year).
    And yes, I know the marginal cost of a message is virtually zero, but so is the marginal cost of a kilowatt or a gallon of water.

    The advantage of a comment written late in the day is the likelihood of it being read is very small and the likelihood of a return comment is zero.

  17. I need to remind everyone of a few points.
    1) The Internet Protocol, developed by DARPA, is one universal standard.
    2) The World Wide Web was designed by one man, Tim Berners-Lee, working at a government lab in Europe (CERN).
    3) The creators of the Internet did not imagine it as becoming commercial, and didn’t plan for lying, hacking, etc., being that it was designed by and for academics and government workers.
    4) The Web was created to replace email mailing lists, which are a pain to maintain with academics changing institutions frequently. TBL wanted to post information, and have people look at it with any browser. Immediately, Netscape and Microsoft tried to make it proprietary and make is so that pages only worked with their browsers.

    As possibly the only person here who voted to ended a program that relied on government funding, as no longer being appropriate to the community needs, I can still say that we need regulatory bodies and creating new ones can make sense. FCC and FTC are inappropriate. We need a new agency staffed by techies who understand the actual and potential harm that can be done.

    Whatever medical records standards there are, and they aren’t quite “standard” standards, exist because Medicare required them, not because insurance companies tried to standardize their industry.

    This being said, I don’t expect this agency alone can fix the misinformation problem, but it can help.
    Paul is onto something important – proprietary, secret algorithms and AI with build-in prejudice need to be examined much more closely.

  18. What does privacy mean these days? Interestingly, most people under 35 have lived their whole lives on social media – at least the selfie version – and donʻt realize the scope of their vulnerability to identity thieves and other internet predators.

    More broadly, Koch bros, et al have done an effective job of branding “regulations” as a four-letter word. Itʻs time to re-brand: REGULATIONS ARE PROTECTIONS.

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