Text of my remarks on Facebook’s new supreme court

Corporate Governance with Bayesian Voting: The Case of Facebook’s New Supreme Court

F. E. Guerra-Pujol, University of Central Florida

Mark Zuckerberg recently established an ostensibly-independent Oversight Board or private court (“the Facebook Supreme Court”) with the power to review some of Facebook’s content moderation decisions. 

But as the old saying goes, the devil is in the details. 

Without going into all the background history and procedural details of this new private court (due to my time limit), I just want to say up front that I think this is a really cool and exciting idea.

But to stay within my time limit, I will review the following five aspects of this private court (and five potential blind spots) in the remainder of my talk: 

A. JURISDICTION

B. CASE SELECTION COMMITTEE

C. DISCOVERY 

D. REMOVAL OF MEMBERS (BOARD INDEPENDENCE)

E. CHANGING THE RULES (AMENDMENT PROCESS) 

Ok, let’s go …

A. JURISDICTION 

When Facebook’s private court begins operations in October, it’s jurisdiction will be limited: it will only be able to review “take-down” decisions (not decisions to leave content up). 

Blind spot #1: The private court has no jurisdiction to review Facebook’s policies or algorithms. (Trade secret law?)

B. CASE SELECTION AND DOCKET CONTROL 

This private court has sole discretion over its docket, including the power to accept or reject referrals from Facebook

The bylaws of this private court state that cases will be selected by a case selection committee made up of board members.

The members of the case selection committee will have short terms of three months, after which the seats will rotate to other members of the court.

Blind spot #2: What voting rules will the case selection committee use? 

C. DISCOVERY 

The board may request a range of information from Facebook, including the level of engagement (e.g. number of likes) and information about content similar to the case in question.

But Facebook is not required to provide information if it (Facebook) determines that the information requested is not “reasonably required” for the court to make its decision.

Blind spot #3: Who decides what is “reasonable”?

D. REMOVAL OF MEMBERS (BOARD INDEPENDENCE) 

Removal is for cause (only for violation of the court’s “code of conduct”), and removal of a member requires a two-thirds vote of the entire court.

Blind spot #4: Although court members may not be removed because of the content decisions they have made, the code of conduct has a “morality” clause …

E. CHANGING THE RULES (THE AMENDMENT PROCESS) 

The bylaws specify who can amend which sections and which other parties must agree to amendments.  

Blind spot #5: What if there is a dispute about the meaning of a particular provision in the charter or in the bylaws? The bylaws and the charter of the new board/court are silent on who is the authoritative interpreter of the charter (the all-important “who decides?” question).

To conclude, I will identify one more “blind spot” in the rules of this new private court (and in the literature about this new board). To wit: 

What voting rules will this new board (new private court) follow? If it will be simple majority rule (cf. the work of Jeremy Waldron), how will the board/court deal with the inevitable problems of agenda manipulation and strategic gaming of the voting rules (cf. the work of Duncan Black and Leo Katz)? 

I am hoping that by the next time we meet again (hopefully in person in Minneapolis at our annual meeting in August), I will have sufficient time to explain how “Bayesian voting” might be able to fill the gaps left by some of these blind spots. 

Thank you for your time and attention …

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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