prior probability

This is the next-to-last post of a multi-part series.

Jack Balkin concludes his social media regulation paper by taking a closer look at “intermediary liability” — i.e. the idea that social media platforms should be legally liable for unlawful content posted by end-users.

In brief, Professor Balkin’s position is that the government should start operating more like a social media Mob boss: it should offer complete intermediary immunity to social media companies in exchange for substantial concessions from them. (“Nice social media platform you got here; it would be a pity if anything happened to it.”) To the point, Prof Balkin states (p. 93) that the law “should use intermediary immunity as a lever to get social media companies to accept fiduciary obligations toward their users” and to get these firms “to invest in increasing the number of [content] moderators they employ as well as providing more due process for end users.” Alas, Prof Balkin does not bother to tell us what the “optimal” number of content moderators is or how much due process users should be entitled to when their posts are taken down. (Can you blame him? After all, Balkin is a “serious academic”, not a fussy bureaucrat, so he simply can’t be bothered with the niggling details of his call for social media regulation.)

Additionally, Balkin toys with the more promising idea of “distributor liability” (p. 94) by extending the existing costly and cumbersome “notice and take down” system for online copyright infringement, which is pictured below, to all social media content across the board. (The U.S. Congress created the current decentralized system of online copyright enforcement in 1998 when it enacted the Digital Millennium Copyright Act or “DMCA”. For more details, see here, for example.) In summary, under this decentralized system of distributor liability, companies are generally immune from legal liability unless they receive a take-down notice that specific content on their platforms is unlawful; once they receive such a take-down notice, however, social media companies would be required to remove the flagged content within a particular period of time, or else they themselves would be potentially liable for the content.

For my part, I wonder whether extending this “notice and take down” system to social media platforms would be a panacea for all the supposed social media ills that Balkin has been complaining about in his paper, but I will go ahead and give Prof Balkin the benefit of the doubt on this one. Why? Because if we are going to regulate the Internet, the “notice and take down” system is literally “the lesser evil” (the least bad choice among a bevy of bad regulatory alternatives), one with three advantages. First and foremost, the “notice and take down” system would represent a mere modest or incremental change to the existing laissez faire landscape. Secondly, there already is a well-developed body of “notice and take down” law developed by the courts under the DMCA. And lastly, Balkin’s modest proposal presents a decentralized alternative to Internet regulation. (It does not require a government agency to figure out what the optimal number of content moderators is, for example.)

Note: I will conclude my review of Balkin’s social media regulation paper in my next post.

According to this fascinating report by Frank Jacobs (via bigthink.com), the Spanish province of Galicia has the highest concentration in Europe of places named after saints.

Check out the first iteration of Tim Roughgarden’s elegant, no-frills “foundations of blockchain” syllabus. Bravo!

This is post #10 of a multi-part series.

Yale Professor Jack Balkin concludes his social media regulation paper (available here) with three specific “policy levers”:

1. Antitrust law and regulation (pp. 91-92)
2. Fiduciary law (pp. 92-93)
3. Legal liability rules (i.e. “intermediary liability”) (pp. 93-96)

Let’s take a look at Prof Balkin’s first policy lever: antitrust. In summary, if Balkin were King of the Internet, the first thing he would do is re-write antitrust law in order to break up Facebook or Google into smaller companies. Specifically, he would separate Facebook and Google’s advertising and social media functions into two separate companies: one devoted to just selling ads; the other, to operating the social media or search engine services, as the case may be.

Notice, however, how lame and foolish this particular proposal is. Not only would Balkin’s proposal increase Big Tech’s costs of doing business, making everyone worse off in the process; Balkin’s antitrust proposal is also foolish to boot because it would end up making the problem he is trying to solve much worse. Why? Because a separate Facebook or Google advertising business would still be big and powerful and might even end up cornering not just Facebook’s or Google’s market for ads, but rather the entire Internet market for ads!

What about Balkin’s second policy lever, fiduciary law? This is an area of law with a rich and long history–one that goes back to ancient Rome. In brief, the common law imposes long-standing and judicially-enforced duties on fiduciaries, i.e. persons like financial advisors, accountants, and lawyers — individuals who are in a special relationship of trust with their clients. Among these fiduciary duties are the duty of loyalty, the duty of honesty, and the duty to avoid self-dealing.

So if Balkin were King of the Internet, he would designate social media companies as “information fiduciaries” and impose legally-defined fiduciary duties them. Currently, social media firms get to decide for themselves what duties, if any, they owe to their users because their legal duties are largely whatever they agree to in their own contracts (“terms of service”) with their users. The problem, of course, is that these contracts are one-sided, since they are written by their own lawyers. Under the fiduciary model described above, by contrast, social media firms would have to live up to much a higher legal standard.

Because of its Roman law pedigree, the fiduciary model looks attractive on paper. But it would probably produce a costly disaster in practice. To the point, the main problem with Balkin’s fiduciary model is that it would literally open up the floodgates of litigation. Simply put, end users would be able to allege a breach of fiduciary duty whenever they disagreed with any content moderation decision made by a social media company. Maybe that is a good thing. Maybe content moderation decisions should be subject to judicial scrutiny. But I doubt it. Do we really want courts making these kinds of decisions? Do we really want judges running social media companies? Either way, litigation would be a time-consuming and expensive way of resolving these kinds of questions.

What about Prof Balkin’s third and last policy lever, legal liability? Alas, that proposal is vulnerable to some of the same objections I raised in my previous paragraph. Nevertheless, I will conclude this series on Monday by further exploring the possibility of social media liability …

I will resume my analysis of Jack Balkin’s social media regulation paper in my next post; in the meantime, check out my most recent lecture on the now-infamous Face-Mash Incident, which occurred in the fall of 2003 when college sophomore Mark Zuckerberg hacked the computer databases of Harvard College and launched a controversial but popular website called “Face-Mash”. Although Face-Mash was short-lived (it was taken down after a few hours), the website literally went viral at a time when there were no iPhones, no Twitter, no YouTube. But was Face-Mash a crime, a civil wrong, a moral lapse, or just a harmless prank? In this lecture, I will address this question by surveying the main sources of law that apply to computer hacking.

Check out this unorthodox and informal discussion between myself and the excellent Lipton Matthews (@MatthewsLipton), who invited me to participate in his podcast series to discuss my paper, “Adam Smith in Love.” (Matthews’ entire podcast series is available here. Added bonus: My new friend and fellow classical liberal is from Jamaica, where my wife is also from!)

I just discovered that my micro-paper “Betting on Conspiracies?” was published in the Journal of Brief Ideas (JOBI) on September 12, 2021. (I had submitted my brief idea back in mid-July, but a notification email from JOBI got caught in my spam filter.) Here is a link; below, a screenshot:

This is post #9 of a multi-part series.

The penultimate part of Professor Jack Balkin’s paper “How to regulate … social media” contains my favorite quote about Facebook (Part 8, pp. 88-89, footnote omitted): “Facebook’s history as a company has been a cycle of engaging in bad behavior, getting caught, apologizing profusely and promising to mend its ways, followed by the company engaging in slightly different bad behavior, offering new apologies and promises of reform and so on.” (For further evidence of this apology cycle, check out this chronological compilation of Mark Zuckerberg’s insincere apologies over the years. This comprehensive compilation by Gregory Fowler and Chiqui Esteban, which is titled “14 years of Mark Zuckerberg saying sorry, not sorry,” traces this apology cycle as far back to Zuckerberg’s creation of an illegal website called Face Mash back in the fall of 2003 — a website that was memorably depicted in the 2010 movie “The Social Network.”)

After citing the work of Shoshana Zuboff, Professor Balkin then goes on to make the following remarkable claim (p. 89): “Facebook will keep misbehaving and it will keep apologizing, not because it is incompetent or clumsy, but because of the fundamental misalignment between its goals and the public’s needs, and because it has an inherent conflict of interest with its end users and … with democracy itself.” Really? Just because you say something doesn’t make it true. To the point, what is the evidence that Facebook has an “inherent conflict of interest” with “democracy”. What does that even mean? Maybe Facebook is just incompetent or clumsy.

For my part, I suspect that the true purpose of Prof Balkin’s hyperbolic rhetoric is to justify his call for regulation of social media. Indeed, Balkin will make three specific regulatory proposals in the last part of his paper, Part 9, which I will review in the next day or two …

I just realized that I have not blogged about “Hispanic Heritage Month” in the eight years that I have been curating my “prior probability” blog. To help remedy this omission, I thought I would begin by sharing the poster art pictured below from the National Park Service (NPS). FYI: More details are available here, via the NPS.gov website.