Unsafe Harbors: Fake News Is Part Of a Larger Problem For Facebook

Faced with mounting criticism over the proliferation of fake “news” stories on Facebook, and their alleged role in tipping the outcome of the presidential election, CEO Mark Zuckerberg has fallen back on a familiar formulation: Facebook is a technology company, Zuckerberg insists, not a media company. It merely provides a platform where users can post, share, and respond to content posted and shared by others.

“Our goal is to give every person a voice,” Zuckerberg wrote in a somewhat plaintive blog post over the weekend. “We believe deeply in people. Assuming that people understand what is important in their lives and that they can express those views has driven not only our community, but democracy overall. Sometimes when people use their voice though, they say things that seem wrong and they support people you disagree with.”

BN-QU803_1115te_GR_20161115083039The clear and intended implication is that Facebook is not liable for what its users post, and has very circumscribed responsibility to police false, misleading, and tendentious content on its platform. While Facebook and other social media platforms are now taking some modest steps to discourage the spread of fake news content, they’re stopping well short of accepting editorial accountability.

“This is an area where I believe we must proceed very carefully,” Zuckerberg wrote. “Identifying the ‘truth’ is complicated. ..I am confident we can find ways for our community to tell us what content is most meaningful, but I believe we must be extremely cautious about becoming arbiters of truth ourselves.”

It is, in effect, a claim to a kind of safe harbor, protected if not by statute, in the manner of the Digital Millennium Copyright Act safe harbors, then by appeal to a presumed duty to openness, inclusiveness, and the marketplace of competing voices, and an abhorrence of self-appointed arbiters.

It’s an important debate, with merit on both sides. But the debate is also notable for what it says about the growing pushback against digital safe harbors of all kinds.

The growing rejection of Zuckerberg’s claim to a de facto safe harbor is mirrored by the growing legal and legislative pressure on the statutory safe harbors in the DMCA and its international analogs. The U.S. Copyright Office this week opened a new round of public comments on its report published last year on the DMCA’s Section 512 safe harbors, which included a proposal to change the current notice-and-takedown procedures to a notice-and-stay down regime, which would put more pressure on digital platforms to police what their users post. The first round of comments drew 92,000 written submissions. This time, the office is seeking “empirical research studies assessing issues related to the operation of the safe harbor provisions on a quantitative or qualitative basis.”

Many of those digital platforms, meanwhile, are already in a panic over a recent federal appeals court ruling in a case involving MP3Tunes that appears to narrow the circumstances under which platforms can claim the safe harbor.

In Europe, the European Commission is currently conducting a public consultation on proposed changes to the EU Copyright Directive including a proposal to require platforms like YouTube to negotiate market-rate licenses from copyright owners to cover content posted by users, rather than relying on safe harbors.

Part of what connects those disparate threads is the sheer scale of the dominant social media platforms and the incentives that creates. No one would be getting in a lather over fake news on Facebook if it were a tenth its current size. More to the point, though, no one would be investing time and money into concocting fake news stories if there weren’t the possibility of their going viral at Facebook scale.

Scale, it seems, creates perverse incentives, and the perverse fruits of those incentives are causing policymakers, regulators and others to rethink earlier assumptions about liability and the balance of equities online.

In a remarkable interview with the Washington Post’s Intersect blog this week, Paul Horner, a long-time purveyor of hoax news stories aimed at social media platforms, described the economics of bogus bulletins.

“I make most of my money from AdSense — like, you wouldn’t believe how much money I make from it. Right now I make like $10,000 a month from AdSense,” he told the blog. “I know ways of getting hooked up under different names and sites. So probably if they cracked down, I would try different things. I have at least 10 sites right now. If they crack down on a couple, I’ll just use others. They could shut down advertising on all my sites, and I think I’d be okay. Plus, Facebook and AdSense make a lot of money from [advertising on fake news sites] for them to just get rid of it. They’d lose a lot of money.”

Horner created some of the most widely disseminated fake news stories of the recent election cycle, including a report that Barack Obama planned to invalidate the election results if Donald Trump won, which earned 250,000 Facebook shares, and a story based on a bogus Craigslist ad Horner created, claiming that anti-Trump protesters were being paid as much as $3,500 to show up at demonstrations, which was retweeted by members of Trump’s campaign staff and found its way onto ABCNews.com and other allegedly reputable sites.

In a deeply ironic twist, Horner, who told the Intercept that he “hates” Donald Trump, concocted most of his fake news stories to appeal to conservatives, who, for whatever reason, are apparently more susceptible to hoaxes and thus generate more shares and ad clicks.

“My sites were picked up by Trump supporters all the time,” Horner said. “His followers don’t fact-check anything — they’ll post everything, believe anything.”

But it’s scale that makes the trick work. And it’s scale that’s now driving the pushback against Zuckerberg’s claim to a de facto safe harbor.

“Everyone has the right to say what they want, have access to sites that they want, share what they want,” Hillary Clinton’s digital chief Teddy Goff told POLITICO this week. “But a publisher with a record of making stuff up is not likely to rank that highly on Google, and the equivalent ought to be the case on Facebook…Two, three weeks ago, many of us are beginning to talk about what a big problem this is, both from the campaign and from the administration, and just sort of broader Obama orbit, and are talking about, this is one of the things we would like to take on post-election.”

YouTube’s immense size is also clearly a factor in the trans-Atlantic revisionism on the statutory safe harbors. The copyright industries, in particular the music industry, have mounted and effective lobbying campaign to persuade policymakers that YouTube’s sheer size has so tilted the playing field that the balance of equities envisioned by the framers of the DMCA-style safe harbors are now so far out of balance they should be amended.

The scale those platforms have pursued so relentlessly is starting to become a liability. That’s not something Facebook can fix by tweaking its news feed algorithm.